Don’t accept a “representative” at mediation or trial.

 I wanted to make a point that is critical to the defense narrative.

The Foreclosure mills are getting away with presenting an employee of a company that has been falsely designated as being the “servicer.”

They are referring to this employee as a “representative.” But in all cases this “representative” is merely a paid actor with a script.

He or she has no personal knowledge of any fact or event relating to the origination, current existence, maintenance, or any data entries on the books and records of the designated “creditor.”

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Upon questioning it will be revealed that they only express general familairity about the records or business records of their employer (the designated servicer who is not servicer).

The truth is that neither the company designated as “servicer” nor the company designated as “creditor” possesses any attributes of a servicer or a creditor.

Both pro se litigant and lawyers for homeowners who are defending Foreclosure actions often fail to take issue with the presentation of a “representative.” It is not the use of the word that is objectionable. It is what is meant by it.

To be a proper representative, the person must have knowledge + authority. Both need to be specified. Knowlege of what?  Authority to do what?

The usual representative is an employee of a company who is designated as “Servicer,” but the functions normally associated with “servicing” are performed by third parties known as FINTECH servicers under new CFPB rulings.

This representative will only say he is Familiar with the “records” of the company that has been designated as a servicer but is not doing any servicing — so their records are irrelevant (and their authority is irrelevant).

In recent correspondence with a former client I wrote the following:

You don’t want a representative, unless they are responsible for debits and credits on a loan account that exists on the books and records of the named plaintiff.

The plaintiff in your case is US Bank. The fact that it is acting as a trustee does not mean that the plaintiff is “U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR BANK OF AMERICA FUNDING CORPORATION MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007.” The trust does not have any authority or power to appear in court in any capacity except through a legal person authorized to act as trustee.

 
They are playing with you and the court. And it appears that the court does not recognize the difference between (1) a representative, which is merely an employee of a servicer, and (2) an officer of US Bank.
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Unless the employee of a servicer is in possession of personal knowledge regarding the existence, ownership and maintenance of an unpaid loan account on the books and records of US Bank, there is a lack of foundation for the testimony of that employee of the servicer, and a lack of foundation for the introduction of any documentary exhibits based on the testimony of that employee.
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PRACTICE HINT: You can use this strategy to point out that US Bank or whoever is named as Plaintiff is not showing up for court or emdiation. Not showing up for mediation menas they are violating a court order —  the order setting mediation. Once you have the foundation a violation of a court order, you have the basis for a motion for sanctions or even a motion for contempt. And in doing so, it is wise to demand both economic sanctions and evidentiary sections, with an emphasis on the latter.
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Besides cross-examination can liberally ask for the right to conduct voir dire, which is a legal procedure by which you determine whether or not witness is competent to testify or represent anything.
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If they are not competent to testify about the truth of the matter asserted, there is no foundation for any written document that the foreclosure mill wants the judge to consider. And this is because no document is admissible without foundation because all documents are hearsay — they are not subject to cross examination. 
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In plain language you can’t cross examine a peice of paper or a stick. It needs to be a human being that can reply to your questions. There are other articles I  have published here on competency and the most famous discourse is by Professor Arthur Younger, RIP. Suffice it to say that the 4 components for competency are Oath, Perception, Memory and the Ability to Communicate.
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The fact a witness testifies he or she is familiar with “records,” putting aside whether the records are even relevant, does not mean the witness knows anything about them nor does it describe the depth of their knowledge.
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This is addressed in voir dire and cross examination. In voir dire you must be careful not to stray into cross examination. The judge will shut you off like a switch.
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Neil F Garfield, MBA, JD, 75, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE COMMENTS ON THIS BLOG AND ELSEWHERE ARE BASED ON THE ABILITY OF A HOMEOWNER TO WIN THE CASE NOT MERELY SETTLE IT. OTHER LAWYERS HAVE STRATEGIES DIRECTED AT SETTLEMENT OR MODIFICATION. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.

But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

Yes you DO need a lawyer.
If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.

Please visit www.lendinglies.com for more information.

3 Responses

  1. dadzrites is correct. To Javagold – that is critical in bankruptcy courts.

  2. What a lot of servicers try to do is present the “representative” as a “Vice-President” of some department within the lending institution, usually a bank or mortgage company. I’ve had several different titles thrown at me, such as “Vice-President” of mortgage loans, “Vice-President” of records, “Vice-President” of lending, etc. The judge usually buys this designation as some type of credible proof of a witness. However, time and again, we challenge them as witnesses and demand interrogatories and depositions, but are always shot -down on both, saying that the documents are business documents as for hearsay exceptions, and are therefore credible. We object like crazy, but the courts have no interest to overturn their own orders, whether on reconsideration or vacate/set aside the foreclosure action, or overturn appeal orders.

  3. US Bank NA Trustee for XYZ Trust. Is NOT a Creditor !!!!!!!!!!

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