It is quite clear under hundreds of years of legal precedent that documents cannot be introduced as evidence of anything. They are clearly hearsay. Some Banks are trying to use the phrase “self-authenticating” which simply does not apply to self-serving fabrications of documents. The real strategy is using the “business records exception” to hearsay, and all eyes seem to be on Florida now. Matt Weidner has written an excellent article on the subject at http://mattweidnerlaw.com/calloway-v-bony/. And from the other side see http://www.jdsupra.com/legalnews/congratulations-you-now-own-the-loan-18283/
But I think there is a basis to use information in the public domain to challenge the business records exception. We already know of findings by administrative agencies and Congressional hearings and law enforcement that the banks were fabricating documents and wrongfully foreclosing on as many as 95% of all the foreclosure (See Elizabeth Warren’s questioning of FDIC investigator).
I would argue that the bank or servicer is not entitled to use the business record exception because of all the cases and information we have on the internet, including governmental proceedings, where it was revealed that most of the foreclosures were based upon false premises. References to the Katherine Ann Porter investigation, the San Francisco Report (65% of all foreclosures were by strangers to the transaction”) would be helpful. The Consent Orders and Settlements also give rise to a presumption that the records of the banks and servicers are NOT trustworthy nor are they actual business records. They are instead reports prepared for trial about which the presenting witness knows nothing.
Accordingly, I would argue, the records are inherently untrustworthy which is what has been found on thousands of cases where the bank lost and the homeowner won. And I would further argue that this exception is for convenience, not proof. If there is any doubt about the existence of a loan in the chain relied upon by the foreclosing party, or any doubt about whether there was a purchase or sale of the loan, the note, the mortgage, the deed of trust, or the authenticity of a MERS executive authorization or Power of Attorney, I would say that the proponent of such an assertion must prove it rather than rely on the presumptions used in connection with “negotiable” instruments — particularly when the “negotiation” took place when the loan was already in default, meaning that it was NOT a negotiable instrument. If not a negotiable instruments there are no presumption to apply.
And lastly I would argue lack of prejudice. If the transactions were fictitious, the court should certainly want to enter a judgment on the real facts than the lies proffered by parties in court. If anything, the prejudice is to the homeowner in letting the bank or servicer use self serving documents of unknown origination in lieu of presenting real facts by real witnesses with real knowledge carrying real documents.
If the transactions were real, they should have no problem showing proof of the movement of money in consideration for the purchase of a loan. How hard is that? They supposedly did it when they sold the loans — why can’t they do it now when they are saying they have the right to foreclose the loans? Maybe because the entire securitization scheme was a fraudulent scheme using the court system to legitimize illegal acts.