Self-Serving Documents created by Self-Serving Servicers

Bank or Servicer with “Free House” they obtained by fabricating evidence.

The one BIG thing that is missing in most foreclosure litigation is that the documents submitted are hearsay.  The danger is that certain documents kept in the ordinary course of business have credibility and therefore may be admitted as an exception unless you move to strike them from the record immediately.

The point here is credibility — if the documents come from a third party unrelated to the litigation and with no possible interest in the outcome, then the authentication process is enough. But the closer you come to the proffered document being a self-serving piece of work produced solely for the purpose of litigation, the less the exception applies. In other words if the document is coming from a party to litigation it is immediately suspect, or should be. Much greater authentication is required when a party proffers a document that comes from the party itself.

So in foreclosures, this is why the records are proffered as records of the servicer who might be considered to be someone who has no interest in the outcome of the litigation. They are a non-party and thus the suspicion is avoided under ordinary circumstances. But the reality is that the attorneys are not representing the trust or the trustee. They are taking their orders from the servicer who has an interest in (a) keeping the loan as a nonperforming loan because they get higher fees for that and (b) wants foreclosure for the Master Servicer who has an interest in collection of so-called servicer advances. Without the foreclosure and subsequent sale of the property the servicer advances are not paid.

This is why I am revisiting the whole issue of who should be made to testify in court. I think the Master Servicer should be brought in. But that will meet with fierce opposition for obvious reasons — the trust does not exist and the so-called Master Servicer would need to either perjure themselves or admit that the Plaintiff in the foreclosure (or the beneficiary in a non-judicial state) does not exist and thus could not possibly own the debt, note or mortgage.

So you see the issue is whether those records are the records of the Trust (impossible if it doesn’t exist), the Master Servicer, or the certificate holders, or the subservicer who often has no legal right to act as servicer. Hence the records of the servicer are suspect and they are hearsay and they are not the records of the Trust that according to the other side has no records, even though the investors are being paid.

Posted in Uncategorized |