In an article the banks are celebrating a success for their shell game or “musical chairs”(see above link). The appellate court reversed the trial court who through out the business records of the prior servicer.
BUT, the court pointed out that the robo-witness was also employed by the prior servicer and could therefore speak from personal knowledge about record keeping of the prior servicer. This doesn’t happen very often. SO when the foreclosing party tries to bring in the prior records the point needs to be made that the records are not admissible and the case is not authoritative IF the robo-witness was never employed by the prior servicer.
The conclusion from this decision is actually good for borrowers. The whole purpose of slipping in a new servicer, trustee or agent is to put layers in to protect the real parties from liability for wrongful foreclosures.I think the decision means that the testimony from a representative of the prior servicer IS required if the main witness from the “current servicer” did not work for the prior servicer.
As a practice note for lawyers, you should not be lured into this argument as the beginning and end of the issue. The main issue remains — did the prior servicer or the Plaintiff for that matter, ever have any authority to act as servicer and if so, from whom? That issue comes back to standing — i.e., whether the Trust that is asserted as owning the loan ever purchased the loan and if not, then the Trust is representing the interests of a creditor other than the trust. If so, who is that?
And that returns us to the issue of possessor, holder and holder in due course. If they are not willing to assert that the Trust purchased the loan (which may be inferred by failing to allege holder in due course status) then they are admitting in their pleading that the trust does not own the loan which is conflict with their position in judicial foreclosures that the trust owns the loan, note or mortgage.
Filed under: foreclosure |