If you don’t know the rules, you can’t win the game. And remember, to the foreclosure mills and faux “servicers” and faux “trustees”, this is all a game for which we pay every day as owners, taxpayers and consumers.
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One of the interesting things about this is how much they get away with by NOT saying something. The affiant says something got mailed, but he doesn’t say that his employer mailed it, and therefore, he could not be relying upon ‘business records.”
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But he MUST be relying on business records if the testimony for affidavit is to be accepted under the rules (laws) of evidence. Bank of N.Y. v. Morga, 2017 N.Y. Slip Op. 27107 (N.Y. Sup. Ct. 2017). So is he testifying about something he knows or suspects, or just reading from a piece of paper, the origin of which is a complete mystery to him? The inquiry leads to victory. Silence leads to defeat.
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In addition, this underscores the problem with the way people and lawyers contest these false claims. By failing to contest the issues that rely on implied facts, homeowners admit them and make real (for legal purposes) that which is unreal. The goal is to stop the foreclosure — not put the opposition in prison.
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This is why the QWR, DVL, and Complaint to the CFPB are so very important before filing anything in a legal proceeding. In the same way that the foreclosing conspiracists send false correspondence,s statements and notices to create a false facts scenario, the use of QWR, DVL, and complaints create the predicate for the legal challenge.
People ignore these tools because they don’t get an answer. But that is the point. If you sue someone based on a document and you can’t provide corroboration of the claim, including receipts, agreements, and correspondence, there is a high likelihood you will lose even if you are right. But if nobody challenges your allegations or the implied allegations, then there is a high likelihood you will win, even if you are wrong.
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The people who sign these documents and testify in court are employees or independent contractors for a registered name that is a business entity. That entity performs no servicing functions as anyone would reasonably expect but are included in the label “servicer” (Reg X) because they are involved in the collection process — even though the collection process is the pursuit of a false claim.
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The witness cannot testify that his employer sent anything because it didn’t, and he doesn’t know. But MORE important is that the employer is not a “Servicer” as it is usually assumed in court. It does not receive, deposit, process, or distribute payments from homeowners.
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That said, the APPARENT “servicer” cannot produce a business record of transactions with the homeowner because it never did any business with the homeowner. This was all performed by independent third-party financial technology companies who did everything, including correspondence, statements, and notices.
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But none of this will be a possibility until you ask. And once it becomes a possibility, the odds of getting increasingly better rulings from the court improve dramatically.
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So while the witness was relying upon the reports in front of him neither he or his company could attest to the facts about them or in them. His company is there as the focal point for spewing out false claims that they can say they didn’t know were false.
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Hence the ability to rely on “business records” is not a proper foundation for the witness to testify or swear to in any affidavit. But it is used in the courts because the witness has the right to rely on “familiarity” with the “business” records and thus testify to establish the foundation for introducing those same records.
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But the Payment History report is not a business record of the witness’s employer and, therefore would normally be ruled as inadmissible evidence. And most of the time, that is exactly what judges do, even if they are biased toward granting the claim for foreclosure.
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It is a perfect example of circular logic that defeats everything about legal procedure designed to ferret out the truth of the matter asserted.
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PRACTICE NOTE: THIS IS A PRIME EXAMPLE OF A “WRONG WITNESS.” THE ONLY WITNESS YOU SHOULD ACCEPT IS AN EMPLOYEE OR OFFICER OF THE DESIGNATED CLAIMANT, NOT THE “SERVICER.”
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No such person exists because nobody is willing to commit perjury. Nobody from Wells Fargo, Deutsch, bank of New York Mellon, US Bank et al will come to court saying they are an employee or officer of the bank and that the bank maintains a trust account in which there is a loan due from the homeowner. NOBODY!
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The difference between homeowners who win and lose is their willingness to believe that everything presented might have been subterfuge.
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CLICK TO DONATENeil 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 14 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).
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