Court erred in admitting screen shot as evidence of amount due for purposes of granting summary judgment; rule 803(6) of the ohio rules of evidence, business records hearsay exception, construed
In Deutsche Bank National Trust Company v. Hansen, 2011 WL 899625 (Ohio App. 5 Dist., 2011), borrowers defending a foreclosure action successfully challenged whether a bank’s representative could testify in an affidavit concerning the amount due based on a screen shot when the bank’s representative could not explain how such information was collected and compiled. Based on such facts, the borrowers argued the bank could not qualify the screen shot under the business record exception to the hearsay rule.
The borrowers argued that the trial court erred in admitting the screen shot as evidence of the amount due and sought to strike the affidavit of the bank representative, asserting that it was not based on her personal knowledge.
The bank representative testified at her deposition that she did not know who entered the information into the computer to generate the amount owed, nor did she know how such information was collected and compiled. The borrowers argued that while her affidavit states that it was based on personal knowledge, the bank representative’s deposition testimony reflected that while she saw a screen shot of the balance due, she could not explain how that figure was arrived at by the bank.
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The Court of Appeals for Fairfield County determined that the bank’s representative did not have personal knowledge as to how the bank arrived at the balance due as viewed on the screen shot. The borrowers argued the screen shot is hearsay and did not meet the exception for a business record because there is no evidence of its origins or the circumstances surrounding its existence.
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Full opinion below…
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4closureFraud.org
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Deutsche Bank Natl. Trust Co. v. Hansen
Ah, this is a horrible ruling…the Homeowners LOST! This is classic case of putting bad precendent on the books….the only question left for trial court as I read it is whether the amount of debt is $110k or maybe $112k
Won the battle but lost the house….
“The mortgage assignment in the instant case states that Argent Mortgage
Company, LLC “sells, transfers and assigns” to appellee all its rights and interest in
appellant’s mortgage. The assignment further conveys the note of indebtedness
referred to in the mortgage.”
1st problem – robosigner Bryan Bly involved and it was not addressed
2nd problem – “the (mortgage) assignment further conveys the note”
WHAAAT?
MERS may be an alleged party to the “mortgage” but is not a party to the “note” and has no beneficial interest in the note….and then THIS>>>
“‘Where a note secured by a mortgage is transferred so as to vest the
legal title to the note in the transferee, such transfer operates as an equitable
assignment of the mortgage, even though the mortgage is not assigned or delivered.
Kuck v. Sommers (1950), 59 Ohio Law Abs. 400, 100 N.E.2d 68, 75.
Uh HELLO….notes do not have “legal title holders” properties do….notes have “payees”
….and the court had to go back to 1950 for an applicable cite….nothing more current I guess since that citation predates MERS and Fannie/Freddie by 25-40 years…
“In the instant case, appellants have argued that there is no evidence
establishing the conveyance transactions from Argent Mortgage Company, LLC to
Argent Securities, Inc., and there is no evidence showing the assignment of the loan
from the depositor Argent Securities to appellee. However, the assignment on its face
purports to transfer the mortgage and the note from the lender, Argent Mortgage
Company, to appellee. Appellants have presented no evidence to demonstrate that the
conveyance is improper or incomplete.
{¶50} Appellants further argue that the note was not properly endorsed
according to the PSA, and therefore the note is not properly a part of the pool.
However, as this Court held in Dobbs, supra, the transfer of the mortgage without
express transfer of the note is sufficient to transfer both, where the record indicates it is
the intention of the parties to transfer both. The assignment in the instant case transfers
the mortgage to appellee. Appellants have presented no evidence that this conveyance
was not valid.”
Guess they should have entered the whole 1900 page PSA into evidence….or got an expert witness affidavit relative to the PSA ….
Kudos and congrats. to the home owners.Way to go on showing them how to get the job done the right way the first time around.Tooo bad they don’t have such a good track record with thier reps.but worked well for the owners.Yeah thats what I’m talking about.