Check out this “advice” from Lance Olsen a USFN (United States Foreclosure Network) member…
Affidavit Review: Read Twice/Sign Once
The phrase “in this environment” has become a fixture in describing the current state of mortgage servicing and the courts. For the attorney representing creditors, “this environment” means one of hyper-scrutiny by judges, trustees, and attorneys, coupled with an apparent general presumption of distrust.
Hmmm.. I wonder why…
The importance of truthfulness in affidavits cannot be overstated. An affidavit is testimony under oath; the same as if the signor were present in court and speaking from a witness stand. Each fact asserted within the affidavit is done so under penalty of perjury. The consequences of testifying falsely can range from simple embarrassment to something far worse.
Really? Something “far worse?” Like what?
Too many affidavits open with a broad paragraph detailing how all of the following testimony is offered from the personal knowledge of the affiant. The intent of this introduction is to establish a foundation for the testimony. However, the breadth of the statement can actually undercut its credibility. For example, an affiant at a large servicer cannot offer personal knowledge…
You don’t say…
Too many affidavits open with a broad paragraph detailing how all of the following testimony is offered from the personal knowledge of the affiant. The intent of this introduction is to establish a foundation for the testimony.
Oh okay…
Frequently, affidavits are filed asserting a balance due on a loan or a default described in certain terms with no restrictions. The difficulty with this type of testimony is that loan balances are often dynamic, not static. The better practice is to specify a date certain within the affidavit on which asserted amounts are due.
And then there is this…
The use of document custodians has become common in modern loan servicing. Rarely do individual technicians have actual access to original documents. Rather, most originals are held by a custodian for the benefit of a servicer, and possibly an investor/owner. It is possible that some courts may require confirmation of actual possession; but, more often, simple reference to the right to possess the original loan documents and a discussion of the role of the custodian will be sufficient. The worst-case scenario is offering testimony of absolute possession, only to be unable to produce the original if later challenged in court.
Just another day in Foreclosure World…
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Hyper-scrutiny? Like noticing signatures vary wildly? Like noticing legal land ownership documents are unsigned but somehow notarized by a person who is personally known to the notary? Happening to take noticing that one signer is a corporate officer of a myriad of financial institutions, and also employed by the foreclosure mill litigating the case? Having it brought to one’s attention that the notice of hearing was sent 2 weeks late in an envelope with an undated stamp from a postage machine?
Maybe noticing that two different copies of the “same” original note have been filed in the case? OR maybe an assignment of mortgage where the grantor’s corporate officer signs in recent months for a company that has been out of business after filing for bankruptcy protection 10 years ago but still has corporate officers transferring property without going through the bankruptcy trustee?
I mean, it’s not like there’s notice of an undotted i or an uncrossed t. We are talking about making up evidence and swearing that it’s authentic.
Maybe taking notice of this: http://myfloridalegal.com/__85256309005085AB.nsf/0/A4F1B85DCC5D5ACD852577130045B63F?Open&Highlight=0,florida,default