MORTGAGE RIGHTS
 The New Foreclosure Defenses Hearsay and the Prior Servicer Problem Hearsay Servicers introduce account histories into evidence to prove the amount due. Homeowners can attempt to prevent the admission of the account history by making a hearsay objection. “Hearsay” is tossed around in the lay world, but in court it has a very specific meaning. Hearsay is an out of court statement offered to prove the matter asserted. Let’s break the rule down into more understandable parts, and apply it to account histories. The word “statement” in the rule is broader than you may think. It is not limited to something said out loud by a human being. A statement can include written materials such as letters, website content and accounting records. The account history is a statement. An account history is an out of court statement because the loan servicer creates the history from its accounting records at its place of business. Account histories contain the financial history of a loan. They are supposed to show all of the payments and charges, such a late fees. The amount due is calculated every month after the payment has been applied to principal and interest. The amount due is the “matter asserted” under the hearsay rule. There are a ton of exceptions to the hearsay rule. If you can prove an exception to the hearsay rule, the evidence is admitted. Loan servicers rely on the business records exception to the hearsay rule. There are a number of things that the servicer must prove, but let’s focus on the most difficult problem for them: they must produce a witness with personal knowledge of the facts needed to have the exception apply. For example, the servicer must prove that the business records were created at or near the time of the event. The hearsay problem can pop up both on Motions for Summary Judgment and at trial. Loan servicers rely heavily on Motions for Summary Judgment so that they can avoid the expense of a trial. A court can grant a Motion for Summary Judgment if the moving party (typically the loan servicer) can prove that there is no "genuine issue of material fact." The party moving for summary judgment submits affidavits proving every thing they have to prove to obtain a foreclosure judgment: (1) the note and mortgage; (2) the default; (3) performance of all the acts that are required to be completed before a foreclosure case can be filed with the court; and (4) the amount due. The party opposing summary judgment (you) file affidavits with the court showing that there one or more facts are in dispute and/or files a brief arguing various things such as whether the moving party's evidence actually proves all of the requirements of foreclosure. The moving party can file a reply brief trying to convince the judge that the opposing party (you) is out to lunch. The evidence submitted in both side's affidavits must be admissible. Since servicers must introduce the account history to prove the amount due, they ran into hearsay problems. The servicers got in trouble early in the foreclosure crisis because they submitted form affidavits that did not satisfy the basic requirement that the person making the affidavit have personal knowledge of the facts in the affidavit. Servicers have wised up to this problem, and now submit affidavits that satisfy the personal knowledge requirement, at least on paper. Hearsay and the Prior Servicer Problem Loan servicers are running into a lot of problems when the loan has been serviced by more than one loan servicer. An active market for mortgage servicing rights (MSRs) has developed as lenders move in and out of the servicing industry and as servicers go in and out of business. The prior servicer problem is about to become a hot issue in foreclosure litigation. Loan servicers are running into a lot of problems when the loan has been serviced by more than one loan servicer. An active market for mortgage servicing rights (MSRs) has developed as lenders move in and out of the servicing industry and as servicers go in and out of business. The prior servicer problem is about to become a hot issue in foreclosure litigation. The current loan servicer cannot testify about the practices of the prior servicer because it does not have personal knowledge of the prior servicer’s practices. Without competent (based on personal knowledge) evidence about the business practices of the prior servicer, the current servicer cannot prove that the business record exception to the hearsay rule applies to the prior servicer's records. This is a huge problem: you cannot prove the amount due without a complete account history because the account history kept by the current servicer is only accurate if the account history of the prior servicer is accurate. The chapter titled, "Mistakes Snowball," has an illustration of how a mistake in either principal or interest (or both) makes wrong all the following calculations of the amounts to be applied to principal and interest. The Prior Servicer Problem When servicers began losing cases because they did not have witnesses with personal knowledge of a prior serivicer's business practices, they began arguing that the records were accurate because they incorporated the prior servicer's records into their records systems. Courts, however, have dealt with this type of situation -- when a prior business's records have been incorporated into the records of the business that is now in court-- before. You may find cases holding that the mere incorporation of the records did not prove that the records were accurate, which is the policy underlying the business record exception to the hearsay rule. Presently, the servicers must prove that they did some sort of mathematical check of the accuracy of the prior servicer's numbers before they can be admitted under the business record exception to the hearsay rule. Take a look at my post titled, "This Judge REALLY got it Right!" and the court order in HSBC v. Buset( HSBC v. Buset Final Order Granting Mtn for Involuntary Dismis...1.pdf)(in Materials section) to see how this issue plays out in court.
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 MORTGAGE RIGHTS
The site does not provide legal advice. Neither Susan LaCava nor her law firm, LaCava Law, S.C., represent you until there is a signed retainer agreement.
 MORTGAGE RIGHTS
 The New Foreclosure Defenses Hearsay and the Prior Servicer Problem
Hearsay Servicers introduce account histories into evidence to prove the amount due. Homeowners can attempt to prevent the admission of the account history by making a hearsay objection. “Hearsay” is tossed around in the lay world, but in court it has a very specific meaning. Hearsay is an out of court statement offered to prove the matter asserted. Let’s break the rule down into more understandable parts, and apply it to account histories. The word “statement” in the rule is broader than you may think. It is not limited to something said out loud by a human being. A statement can include written materials such as letters, website content and accounting records. The account history is a statement. An account history is an out of court statement because the loan servicer creates the history from its accounting records at its place of business. Account histories contain the financial history of a loan. They are supposed to show all of the payments and charges, such a late fees. The amount due is calculated every month after the payment has been applied to principal and interest. The amount due is the “matter asserted” under the hearsay rule. There are a ton of exceptions to the hearsay rule. If you can prove an exception to the hearsay rule, the evidence is admitted. Loan servicers rely on the business records exception to the hearsay rule. There are a number of things that the servicer must prove, but let’s focus on the most difficult problem for them: they must produce a witness with personal knowledge of the facts needed to have the exception apply. For example, the servicer must prove that the business records were created at or near the time of the event. The hearsay problem can pop up both on Motions for Summary Judgment and at trial. Loan servicers rely heavily on Motions for Summary Judgment so that they can avoid the expense of a trial. A court can grant a Motion for Summary Judgment if the moving party (typically the loan servicer) can prove that there is no "genuine issue of material fact." The party moving for summary judgment submits affidavits proving every thing they have to prove to obtain a foreclosure judgment: (1) the note and mortgage; (2) the default; (3) performance of all the acts that are required to be completed before a foreclosure case can be filed with the court; and (4) the amount due. The party opposing summary judgment (you) file affidavits with the court showing that there one or more facts are in dispute and/or files a brief arguing various things such as whether the moving party's evidence actually proves all of the requirements of foreclosure. The moving party can file a reply brief trying to convince the judge that the opposing party (you) is out to lunch. The evidence submitted in both side's affidavits must be admissible. Since servicers must introduce the account history to prove the amount due, they ran into hearsay problems. The servicers got in trouble early in the foreclosure crisis because they submitted form affidavits that did not satisfy the basic requirement that the person making the affidavit have personal knowledge of the facts in the affidavit. Servicers have wised up to this problem, and now submit affidavits that satisfy the personal knowledge requirement, at least on paper. Hearsay and the Prior Servicer Problem Loan servicers are running into a lot of problems when the loan has been serviced by more than one loan servicer. An active market for mortgage servicing rights (MSRs) has developed as lenders move in and out of the servicing industry and as servicers go in and out of business. The prior servicer problem is about to become a hot issue in foreclosure litigation. Loan servicers are running into a lot of problems when the loan has been serviced by more than one loan servicer. An active market for mortgage servicing rights (MSRs) has developed as lenders move in and out of the servicing industry and as servicers go in and out of business. The prior servicer problem is about to become a hot issue in foreclosure litigation. The current loan servicer cannot testify about the practices of the prior servicer because it does not have personal knowledge of the prior servicer’s practices. Without competent (based on personal knowledge) evidence about the business practices of the prior servicer, the current servicer cannot prove that the business record exception to the hearsay rule applies to the prior servicer's records. This is a huge problem: you cannot prove the amount due without a complete account history because the account history kept by the current servicer is only accurate if the account history of the prior servicer is accurate. The chapter titled, "Mistakes Snowball," has an illustration of how a mistake in either principal or interest (or both) makes wrong all the following calculations of the amounts to be applied to principal and interest. The Prior Servicer Problem When servicers began losing cases because they did not have witnesses with personal knowledge of a prior serivicer's business practices, they began arguing that the records were accurate because they incorporated the prior servicer's records into their records systems. Courts, however, have dealt with this type of situation -- when a prior business's records have been incorporated into the records of the business that is now in court-- before. You may find cases holding that the mere incorporation of the records did not prove that the records were accurate, which is the policy underlying the business record exception to the hearsay rule. Presently, the servicers must prove that they did some sort of mathematical check of the accuracy of the prior servicer's numbers before they can be admitted under the business record exception to the hearsay rule. Take a look at my post titled, "This Judge REALLY got it Right!" and the court order in HSBC v. Buset( HSBC v. Buset Final Order Granting Mtn for Involuntary Dismis...1.pdf)(in Materials section) to see how this issue plays out in court.
 MORTGAGE RIGHTS
The site does not provide legal advice. Neither Susan LaCava nor her law firm, LaCava Law, S.C., represent you until there is a signed retainer agreement.
 The New Foreclosure Defenses Hearsay and the Prior Servicer Problem Hearsay Servicers introduce account histories into evidence to prove the amount due. Homeowners can attempt to prevent the admission of the account history by making a hearsay objection. “Hearsay” is tossed around in the lay world, but in court it has a very specific meaning. Hearsay is an out of court statement offered to prove the matter asserted. Let’s break the rule down into more understandable parts, and apply it to account histories. The word “statement” in the rule is broader than you may think. It is not limited to something said out loud by a human being. A statement can include written materials such as letters, website content and accounting records. The account history is a statement. An account history is an out of court statement because the loan servicer creates the history from its accounting records at its place of business. Account histories contain the financial history of a loan. They are supposed to show all of the payments and charges, such a late fees. The amount due is calculated every month after the payment has been applied to principal and interest. The amount due is the “matter asserted” under the hearsay rule. There are a ton of exceptions to the hearsay rule. If you can prove an exception to the hearsay rule, the evidence is admitted. Loan servicers rely on the business records exception to the hearsay rule. There are a number of things that the servicer must prove, but let’s focus on the most difficult problem for them: they must produce a witness with personal knowledge of the facts needed to have the exception apply. For example, the servicer must prove that the business records were created at or near the time of the event. The hearsay problem can pop up both on Motions for Summary Judgment and at trial. Loan servicers rely heavily on Motions for Summary Judgment so that they can avoid the expense of a trial. A court can grant a Motion for Summary Judgment if the moving party (typically the loan servicer) can prove that there is no "genuine issue of material fact." The party moving for summary judgment submits affidavits proving every thing they have to prove to obtain a foreclosure judgment: (1) the note and mortgage; (2) the default; (3) performance of all the acts that are required to be completed before a foreclosure case can be filed with the court; and (4) the amount due. The party opposing summary judgment (you) file affidavits with the court showing that there one or more facts are in dispute and/or files a brief arguing various things such as whether the moving party's evidence actually proves all of the requirements of foreclosure. The moving party can file a reply brief trying to convince the judge that the opposing party (you) is out to lunch. The evidence submitted in both side's affidavits must be admissible. Since servicers must introduce the account history to prove the amount due, they ran into hearsay problems. The servicers got in trouble early in the foreclosure crisis because they submitted form affidavits that did not satisfy the basic requirement that the person making the affidavit have personal knowledge of the facts in the affidavit. Servicers have wised up to this problem, and now submit affidavits that satisfy the personal knowledge requirement, at least on paper. Hearsay and the Prior Servicer Problem Loan servicers are running into a lot of problems when the loan has been serviced by more than one loan servicer. An active market for mortgage servicing rights (MSRs) has developed as lenders move in and out of the servicing industry and as servicers go in and out of business. The prior servicer problem is about to become a hot issue in foreclosure litigation. Loan servicers are running into a lot of problems when the loan has been serviced by more than one loan servicer. An active market for mortgage servicing rights (MSRs) has developed as lenders move in and out of the servicing industry and as servicers go in and out of business. The prior servicer problem is about to become a hot issue in foreclosure litigation. The current loan servicer cannot testify about the practices of the prior servicer because it does not have personal knowledge of the prior servicer’s practices. Without competent (based on personal knowledge) evidence about the business practices of the prior servicer, the current servicer cannot prove that the business record exception to the hearsay rule applies to the prior servicer's records. This is a huge problem: you cannot prove the amount due without a complete account history because the account history kept by the current servicer is only accurate if the account history of the prior servicer is accurate. The chapter titled, "Mistakes Snowball," has an illustration of how a mistake in either principal or interest (or both) makes wrong all the following calculations of the amounts to be applied to principal and interest. The Prior Servicer Problem When servicers began losing cases because they did not have witnesses with personal knowledge of a prior serivicer's business practices, they began arguing that the records were accurate because they incorporated the prior servicer's records into their records systems. Courts, however, have dealt with this type of situation -- when a prior business's records have been incorporated into the records of the business that is now in court-- before. You may find cases holding that the mere incorporation of the records did not prove that the records were accurate, which is the policy underlying the business record exception to the hearsay rule. Presently, the servicers must prove that they did some sort of mathematical check of the accuracy of the prior servicer's numbers before they can be admitted under the business record exception to the hearsay rule. Take a look at my post titled, "This Judge REALLY got it Right!" and the court order in HSBC v. Buset( HSBC v. Buset Final Order Granting Mtn for Involuntary Dismis...1.pdf)(in Materials section) to see how this issue plays out in court.
 MORTGAGE RIGHTS
 MORTGAGE RIGHTS
The site does not provide legal advice. Neither Susan LaCava nor her law firm, LaCava Law, S.C., represent you until there is a signed retainer agreement.
 The New Foreclosure Defenses Hearsay and the Prior Servicer Problem Hearsay Servicers introduce account histories into evidence to prove the amount due. Homeowners can attempt to prevent the admission of the account history by making a hearsay objection. “Hearsay” is tossed around in the lay world, but in court it has a very specific meaning. Hearsay is an out of court statement offered to prove the matter asserted. Let’s break the rule down into more understandable parts, and apply it to account histories. The word “statement” in the rule is broader than you may think. It is not limited to something said out loud by a human being. A statement can include written materials such as letters, website content and accounting records. The account history is a statement. An account history is an out of court statement because the loan servicer creates the history from its accounting records at its place of business. Account histories contain the financial history of a loan. They are supposed to show all of the payments and charges, such a late fees. The amount due is calculated every month after the payment has been applied to principal and interest. The amount due is the “matter asserted” under the hearsay rule. There are a ton of exceptions to the hearsay rule. If you can prove an exception to the hearsay rule, the evidence is admitted. Loan servicers rely on the business records exception to the hearsay rule. There are a number of things that the servicer must prove, but let’s focus on the most difficult problem for them: they must produce a witness with personal knowledge of the facts needed to have the exception apply. For example, the servicer must prove that the business records were created at or near the time of the event. The hearsay problem can pop up both on Motions for Summary Judgment and at trial. Loan servicers rely heavily on Motions for Summary Judgment so that they can avoid the expense of a trial. A court can grant a Motion for Summary Judgment if the moving party (typically the loan servicer) can prove that there is no "genuine issue of material fact." The party moving for summary judgment submits affidavits proving every thing they have to prove to obtain a foreclosure judgment: (1) the note and mortgage; (2) the default; (3) performance of all the acts that are required to be completed before a foreclosure case can be filed with the court; and (4) the amount due. The party opposing summary judgment (you) file affidavits with the court showing that there one or more facts are in dispute and/or files a brief arguing various things such as whether the moving party's evidence actually proves all of the requirements of foreclosure. The moving party can file a reply brief trying to convince the judge that the opposing party (you) is out to lunch. The evidence submitted in both side's affidavits must be admissible. Since servicers must introduce the account history to prove the amount due, they ran into hearsay problems. The servicers got in trouble early in the foreclosure crisis because they submitted form affidavits that did not satisfy the basic requirement that the person making the affidavit have personal knowledge of the facts in the affidavit. Servicers have wised up to this problem, and now submit affidavits that satisfy the personal knowledge requirement, at least on paper. Hearsay and the Prior Servicer Problem Loan servicers are running into a lot of problems when the loan has been serviced by more than one loan servicer. An active market for mortgage servicing rights (MSRs) has developed as lenders move in and out of the servicing industry and as servicers go in and out of business. The prior servicer problem is about to become a hot issue in foreclosure litigation. Loan servicers are running into a lot of problems when the loan has been serviced by more than one loan servicer. An active market for mortgage servicing rights (MSRs) has developed as lenders move in and out of the servicing industry and as servicers go in and out of business. The prior servicer problem is about to become a hot issue in foreclosure litigation. The current loan servicer cannot testify about the practices of the prior servicer because it does not have personal knowledge of the prior servicer’s practices. Without competent (based on personal knowledge) evidence about the business practices of the prior servicer, the current servicer cannot prove that the business record exception to the hearsay rule applies to the prior servicer's records. This is a huge problem: you cannot prove the amount due without a complete account history because the account history kept by the current servicer is only accurate if the account history of the prior servicer is accurate. The chapter titled, "Mistakes Snowball," has an illustration of how a mistake in either principal or interest (or both) makes wrong all the following calculations of the amounts to be applied to principal and interest. The Prior Servicer Problem When servicers began losing cases because they did not have witnesses with personal knowledge of a prior serivicer's business practices, they began arguing that the records were accurate because they incorporated the prior servicer's records into their records systems. Courts, however, have dealt with this type of situation -- when a prior business's records have been incorporated into the records of the business that is now in court-- before. You may find cases holding that the mere incorporation of the records did not prove that the records were accurate, which is the policy underlying the business record exception to the hearsay rule. Presently, the servicers must prove that they did some sort of mathematical check of the accuracy of the prior servicer's numbers before they can be admitted under the business record exception to the hearsay rule. Take a look at my post titled, "This Judge REALLY got it Right!" and the court order in HSBC v. Buset( HSBC v. Buset Final Order Granting Mtn for Involuntary Dismis...1.pdf)(in Materials section) to see how this issue plays out in court.
 MORTGAGE RIGHTS
The site does not provide legal advice. Neither Susan LaCava nor her law firm, LaCava Law, S.C., represent you until there is a signed retainer agreement.  MORTGAGE RIGHTS