Foundation of “Lost” Document — Wigmore on Evidence

The biggest mistake most people make is not knowing basic rules of evidence. That is why I cover it in my manuals, seminars and books. Here is Wigmore on evidence which I stumbled across while looking for something else. The basic thrust is that the burden of proof increases geometrically on a party wishing to prove up the contents of a document that is not present in court. Testimony from a “copy” is inadmissible. Testimony is inadmissible unless it comes from a witness accepted by the court — not some lawyer lathering up his mouth and using finesse to escape the rules of evidence. Every witness must be sworn, must have personal knowledge of the contents, must remember it ALL and be able to communicate it with specificity such that a court could rule without the court creating a document that had never been in existence before the evidentiary hearing.

As soon as the Lawyer starts talking you should probably be objecting since he is not sworn, not a witness and never will be.

Wigmore on Evidence
Chapter 73. Verbal Completeness
I. Must The Whole of The Utterance be First Offered by The Proponent?
B. Documents
§ 2105. (b) Document lost or destroyed: (1) Deeds, letters, contracts, abstracts, etc.; substance of the material parts suffices.

“In dealing with the general principle requiring the production of a documentary original if it is available, it has already been seen (§ 1267 supra) that testimony based on recollection is an allowable mode of proof for lost documents, though for some kinds of documents testimony by copy is preferred if it can be had (§§ 1268-1272 supra). Assuming, then, that there is no prohibition of any qualified witness to the contents of a lost or destroyed document, the question arises, under the present principle… (a) As to entirety of parts, it is clear that for documents having in themselves a legal effect — such as deeds and contracts — all the material parts must be established by the testimony to contents. It would be imprudent to act judicially upon a part of a document whose material effect must depend equally upon other and missing parts. This practice, doubtless, would sometimes leave honest rights unenforceable because their tenor is unknown; but this contingency is preferable to …”

So what this means is that an affidavit that is sworn must be the “testimony” of a witness accepted by the court who has personal knowledge and is not reporting what was told to them by someone else and not be reporting what they read in another document.

Foreclosure Defense and Offense: Lost Document Affidavit

This is reply to a question which has been posed to us recently by several readers through email and at least one comment. We have advised demanding the alleged lender (the one suing you in foreclosure or who has scheduled the sale) allow you to inspect and provide you copies of original documents so they can prove their standing or authority to proceed — or you can assert they have no standing, no authority because they don’t have the supporting documentation, they don’t own the loan anymore, and they have no written authority to proceed along with bona fide original documentation showing the assignment.  If they do not respond or admit they don’t have the documents, the case is over, you win they lose.

By the way, they are definitely NOT going to want to show you or anyone else that assignment. It has things in it that they don’t want public. 

But what if they come back with something — just not what you asked for, like an affidavit that says the original was lost? The answer is that an affidavit which does not contain an explanation for what happened to the original and does not attach a copy of the original with a person who REALLY knows, signing the affidavit that the copy is indeed a copy of the original, it is worth nothing. You win, they lose.

An affidavit without those components is simply an admission that they don’t have it. Case over.

The explanation must be plausible and be signed by someone who REALLY knows. If such an affidavit is sent in, in all probability is signed by someone who was presented with it along with the instruction “sign this or be fired.”

  • So you want to ask by interrogatory
  • or bluff them with a request for admissions 
  • (or take their deposition), along with a subpoena duces tecum that demands they bring with them all the original loan documents — if they have some of them, they better have a very convincing explanation of what happened tot he rest besides “we can’t find it)
  • that establishes that the person who signed it didn’t work for the lender at the time of the loan closing, and/or 
  • had nothing to do with the loan closing, and/or 
  • never saw the alleged original, and/or if they did see it, 
  • whether they are taking the blame for losing it on themselves with again, a plausible explanation.
  • whether they have been disciplined or if any change in policy was published for the company at the time of the alleged discovery of the “lost document.”

Without a copy of the original, nothing matters. They don’t have it and it is extremely unlikely that will succeed in proving the “lost document” since these documents are copied all over the place. If the copy doesn’t have your signature on it, it isn’t the original. The copy you have probably doesn’t have your signature on it either. Thus they can’t prove it with their records or even yours.


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