Servicing is about money. If the money paid by homeowners is not deposited by their own employees into a financial account owned by the company claiming to be a servicer, then they have no right to record the receipt of such money. And they don’t.
I received the following inquiry: why does a “loan boarding analyst” need to be a computer coding expert. The answer is that the job description was put there in the name of a company that claimed to be a servicer and was not. The actual function is to make certain that all correspondence, statements, and notices go out under the name of the company claiming to be a servicer without that company ever performing servicing functions.
Because what those employees do has nothing to do with boarding “loans.” In our current example, SPS is a company whose servicing functions are performed by third parties. That would be legal if the third parties were performing those functions under the supervision of SPS. The records produced by those third parties would be qualified “business records” to avoid exclusion under the hearsay rule.
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Servicing is about money. If the money paid by homeowners is not deposited by their own employees into a financial account owned by the company claiming to be a servicer, then they have no right to record the receipt of such money. And they don’t.
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Everyone needs to be careful about accepting the labels and descriptions used by the banks to describe companies and their activities. Most of them are false and intended to mislead you and the rest of the world. So the reality of a job description for a “loan boarding analyst” is that the person needs to be a computer coding specialist with no required knowledge as to banking, bookkeeping or accounting. The object is to reset the basic data after the illusion of a transfer of servicing function has been created. This is shown to the homeowner as a “change of servicer” despite the fact that no such change ever occurred.
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So after the claimed “loan boarding” date has been established, the third party who is actually performing the duties of a servicer (on behalf of investment banks, not investors) will start sending out correspondence, notices, and statements to homeowners who will think that they are corresponding with the company claiming to be a “servicer” and who would not think to question it.
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Everyone assumes that the company claiming to be a servicer is a servicer. But it isn’t. And the records produced in court by a witness declaring that he/she is familiar with the record-keeping practices of the company are not qualified to be exceptions to the hearsay rule.
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And that is because the further testimony that the data shown on those records were made by an employee of the company at or near the time of the transaction is untrue. The company never received any money and therefore made no entries on its accounting records to account for the receipt of money it never received. And this is why there are also no data entries for disbursement of money never received.
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Anyone who has received a bad check understands this premise. If you received a check you only received a piece of paper. But if the check is negotiated into a depository account that you own and control then you also received the money. The money is what this is all about. Don’t let anyone fool you with paper. And by all means, don’t let reports about the paper stand in for reports on the money. It’s not the same thing. If someone sends you a check to an address owned and controlled by someone else, who is receiving and reporting the receipt of payment? It isn’t you. You didn’t receive it unless the third party was working for you and not the other way around.
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The data was recorded, perhaps accurately and perhaps not, by a different company’s employee (or automated robot) because the depository account into which the money was deposited was named for the company claiming to be the servicer but owned by a different company. That means that both the testimony of the robowitness and the exhibits are not admissible into evidence and there is no other proof available to the foreclosure mill to establish legal proof that their claim exists.
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BUT — unless the homeowner or the homeowner’s attorney attacks the presumptions through discovery, motions, and objections, this false testimony and the false exhibits proffered using the false testimony as the foundation for establishing the exhibits as business records, will be admitted. Upon admission, they become the facts and law of the case. The court has no room for discretion.
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Even if the court suspects that the testimony and exhibits are false, the judge must rule for the foreclosure mill. The court is bound by the greater weight of the evidence. Questions and accusations do not count as evidence that will balance out the false evidence of the opposition. It is not false unless you present enough evidence that it is more likely than not that the evidence proffered by your opposition is false.
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This is exactly where pro se litigants and inexperienced trial lawyers get hung up. They know enough to accuse the other side of wrongdoing but they can’t prove it.
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The homeowner never has access to any admissible evidence that contradicts the presumptions created by the application of normal court procedure.
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Without having undermined the ability of the opposition to claim such presumptions, the homeowner always loses. This is only accomplished in discovery demands and then demands (motions) to compel, for sanctions, and in limine. When the judge gets angry that his/her orders are being ignored, you are on the path to victory.
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It is simple logic. If the opposition is relying upon presumed facts, you have the absolute right to test those facts in the real world. When they refuse to supply foundation evidence for the presumed facts, you have them right where you want them. The presumption fails and they have no further evidence to proffer. No evidence means no case. But without aggressively pursuing these rights, the false narrative will prevail.
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Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.
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Neil F Garfield, MBA, JD, 74, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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