Tonight! EVIDENCE 101: If Ireland’s High Court Can Do It, Why can’t Our Courts Do It? 6PM EST 3PM PST

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This may have been inadvertently published yesterday.

  • The simple way to remember all this is that a business record must be a record of business actually conducted by the record keeper. Anything else is hearsay and must be secluded from evidence. 
  • But there is another rule that has been used to defeat this premise and the strategy has been successfully employed. By getting the homeowner and the attorney for the homeowner to agree that the company is a servicer, then the tacit admission is that it is performing serving functions.


First things first: No case can be proven without evidence that is accepted by the court as proving the truth of the matter asserted. The essence (the truth of the matter asserted) of all foreclosure claims is this:

  1. The claimant is the owner of an obligation owed by the homeowner to the claimant.
  2. The homeowner executed documents that memorialized a loan transaction that the homeowner accepted.
  3. One of those documents was a note that set forth the schedule of payments plus interest.
  4. Another document was the mortgage in which the homeowner agreed that the property was collateral that could be sold in the event of a default.
  5. A default has occurred: the homeowner did not make a scheduled payment and the claimant did not receive it.
  6. The default caused an economic loss to the claimant.
  7. Pursuant to the terms of the documents the claimant demands that the property be sold or that the homeowner redeem the property in accordance with the terms of the note and mortgage.

Of the preceding paragraphs, in nearly all instances, paragraphs 1, 5, and 6 are false in foreclosure litigation.

In order to cover up the fact that there is no claim, the investment banks act through intermediaries and hire lawyers who are instructed to bring the claim without verifying that such a claim exists in the name of the claimant.

The investment banks created an elaborate maze of intermediaries, conduits, and nominees to bulk up their claims. One such nominee is any company that is claimed to be a “servicer.” That claim is not an instruction from any creditor. Instead, it is a self-serving claim issue by financial technology companies who are instructed by the investment banks to use the name of the company designated as “servicer.”

But the servicing functions for the receipts and disbursement of money received from the homeowner are performed by a web of companies that do not include the designated servicer. Hence, since it receives no payment nor does it make payments to third parties like ordinary servicers would do, it has no record of such receipts or disbursements.

The second way that the claim is faked is by producing a witness with no personal knowledge of anything. That witness is shown a report of unknown origin and the witness testifies that it is a business record of the servicer. As set forth at great length above, it isn’t a business record because it is not a record of any business done by the “servicer.”

But the only manner in which such statements are even partially true is that once the report was downloaded from remote servers operated and maintained by third parties, it became a record of the self-proclaimed “servicer.” And THAT is what brings us to the nub of the issue at hand in nearly all foreclosure litigation.

Perhaps the downloaded report off the internet became a record attributable to the name of the company designated as a “servicer.” But it is not a business record because a business record is a record of the business conducted by the company offering it as evidence. Since neither receipts nor payments were processed by that company, their “records” are not business records.

This is actually a simple proposition followed by American courts for centuries and centuries before in common law England. But in foreclosure cases, such reports downloaded from the internet are regularly admitted, often without objection, as evidence of business transactions with homeowners that never occurred.

Enter the country of Ireland. The high court in Ireland recently took this issue in and delivered the obvious opinion. The business record is not a record of business if no business was conducted by the proponent of the record.


American courts blithely ignore the infallible logic and precedent of the Ireland decision. But they do so without any legislative or common law precedent. The problem, you see, is that if they were to throw out the servicer and its “records” there would be no foundation for any claim. And that is politically unacceptable

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