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The typical case against the homeowner involves the participation of a company claiming to be the servicer. While the company might perform certain functions of the statutory definitions in the regulation of “servicers,” it is actually rare that it is the recipient of money paid by homeowners and even more rare that it is the disburser of payments to “creditors.”

But even if the payment history produced by a representative of the servicer is authentic, it might be barred or struck from evidence, based upon the expert opinion of a certified public accountant.

The opinion of the CPA would simply be that it is impossible to determine the balance of the loan account from the payment history.

Without looking at the accounting ledger of the creditor, the payment history is merely a recitation of activity during the time that the alleged loan was serviced.

The balance of the alleged loan account as claimed by the company claiming to be the servicer is only an estimate. And typically there is no representative of the company claiming to be a servicer that can say that they have seen the accounting ledger of the creditor — or even that they know who the creditor is.

PRACTICE HINT: If the payment history is attached to any filing with the court, including the initial complaint in judicial states, then a motion to strike might be a proper response. As with all motions remember to get a hearing and a court reporter. And file a memorandum.

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Examination and Challenge of Assignments of Mortgage

Filed under: foreclosure |