Declarations and Affidavits Barred by Hearsay Rule: "I am familiar with…"

Sep 23, 2012

we keep seeing the same thing. The case goes to a brand new company that had nothing to do with origination, servicing, processing, paying the creditors, or negotiating for insurance and credit default swaps proceeds. The new company doesn’t appear until long after the declaration of default, and the commencement of foreclosure proceedings. The an employee fo the company that never had anything to do with the loan gets one of its employees to sign an old favorite “I am familiar with…” and she goes on to state the loan in default, the establishment of foundation of the note and mortgage etc.

By definition she has no personal knowledge of the transaction or anything else that transpired before the execution of the affidavit and is therefore not a competent witness to testify as to any of those facts or even the documents. “I am familiar with” is insufficient as a matter of law. You can get that through Lexus-Nexus or anywhere else.

In no state of the union can the business records exception be invoked based upon “I am familiar with”. She is not a competent witness, she therefore cannot lay any foundation for any of the documents, which therefore cannot be admitted into evidence. The elements for the business records exception are clear and have been litigated all the way up to the US Supreme Court. There is absolutely no doubt that this is hearsay and that the witness does not meet the requirements of a competent witness.

Objection should be filed prior to hearing. specific objection to that declaration. Ken McLeod may be able to help. Call our customer service number if you want a referral for his services. Private investigator. He can call her and get her on a recorded conversation saying that her duties don’t start until after long after the foreclosure proceedings have already been started. Before that she saw nothing, knows nothing, heard nothing and wrote nothing about this case.