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Sunday – August 19, 2018

Foreclosure Workshop #65: Hacker v. Homeward Residential; M&T Bank v. Plaisted; and U.S. Bank Trust v. Barbier — Ten Strategies for Defeating Foreclosure by Objecting to the Admissibility of Business Records as an Exception to the Hearsay Rule

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Three especially noteworthy judicial decisions occurred this week: (1) Hacker, appeal decided 8/16/18 in the California Court of Appeal, Second Appellate Division, (2) Plaistead, appeal decided 8/16/18 in the Supreme Judicial Court of Maine; and (3) Barbier, motion for summary judgment orally decided 8/15/18 in the Second Circuit Court in Hawaii on the Island of Maui.

These three decisions provide important practical examples of successful evidentiary objections that are becoming exceptionally useful for defeating foreclosures in state courts nationally, and all three will be posted, attached to the audio of this show in the past broadcast section of our website shortly after airing.

More and more, state courts are recognizing what the Supreme Judicial Court of Maine in an earlier case in 2015 found to be wide gaps in evidence regarding missing elements essential to proving the foreclosure claims of securitized trusts, observing:

‘’The financial services industry, through the practice of securitization, spawning a byzantine mass of assignments, transfers, and documentation, has made it difficult for subsequent assignees to demonstrate that they have standing to bring foreclosure claims and prove the elements necessary to prevail in a foreclosure action in a manner compliant with the laws governing foreclosure.’’

The Maine Court further explained that securitization has made it “difficult or impossible to acquire necessary records that qualify for admission under the business records exception to the hearsay rule . . . in order to prove ownership of the mortgage, proper notices of defaults, and sums due and paid,” Homeward Residential Inc. v. Gregor, 2015 ME 108, 122 A.3d 947, para. 13.

As our listeners know, pretender lenders invariably support their efforts at foreclosure by submitting in court to establish an “evidentiary foundation” for admissibility a loan servicer‘s declaration attempting to authenticate business records, which contrary to the mistaken belief of many, by themselves are not self-authenticating.

On today’s show we encourage our listeners therefore to become familiar with the following ten powerful evidentiary objections to the admissibility of business records in their foreclosure cases which we discuss on today’s show, time permitting.

Any one of these ten evidentiary objections, challenging a lack of trustworthiness, singularly can defeat motions for summary judgment as well as give homeowners a victory at trial, remembering that pretender lenders have the burden of proof regarding all but #10 below.

1. Object to the admission into evidence of business records that were not made at or near the time, or not transmitted by someone at the time with personal firsthand knowledge;

2. Object to the admission into evidence of business records not kept in the ordinary course of the business activity;

3. Object to the admission into evidence of business records not made as a regular practice of that business activity;

4. Object to the admission into evidence of business records not supported by testimony based on firsthand personal knowledge;

5. Object to the admission into evidence of business records where the chain of ownership or title is broken, thus void;

6. Object to the admission into evidence of business records not disclosed in response to prior requests for discovery;

7. Object to the admission into evidence of business records that are contradicted by other business records;

8. Object to the admission into evidence of business records containing signatures by unauthorized representatives;

9. Object to the admission into evidence of business records that are incomplete; and

10. Object to the admission into evidence of business records the product of fraud in the factum or fraud in the inducement.

Please join us this Sunday as John and I examine, time permitting, these ten powerful evidentiary objections for both defeating foreclosure summary judgments and winning foreclosure cases at trial.

Also, we regretfully announce on today’s show that we are not going forward with the concept of a Homeowners SuperPAC due to a lack of interest by our listeners, not having yet spent any of the money contributed, all held in a trust account, and will be returning the disappointing few thousand dollars volunteered by contributing listeners.

Unfortunately, homeowners unwisely yet understandably are focused only on their own foreclosure cases, not realizing that without collective organization and cooperation the pretender lenders will continue to prevail in court with false documentation except in a sprinkling of cases where individual homeowners are represented by competent counsel and have knowledgeable presiding judges or sympathetic jurors.

In place of the Homeowners SuperPAC, and so as not to abandon our overall goal, our law firm is starting a new National Foreclosure Defense Initiative.

In order to attempt to replicate in other States the same success we have had in Hawaii, where originally there was no foreclosure defense whatsoever, our law firm is starting a “legal audit” service nationally outside of Hawaii to supplement what are presently known as more limited “forensic audits” written generally by nonlawyers, heretofore the only available technical help to many homeowners facing foreclosure.

Our “legal audits” will apply the same wide-ranging type of legal analysis we have been sharing and will continue to share with listeners on this show, targeted however at ongoing individual cases, and will be much more useful in court than present forensic audits which are generally inadmissible in court proceedings except in very limited circumstances.

However, due to the present but criticized prohibitions against multi-jurisdictional practice of law without a law license in each State, notwithstanding the First Amendment protection afforded freedom of speech, this new “legal audit” service will be offered on a limited basis as follows, given that I am licensed only in Hawaii and California:

In jurisdictions in which I am not licensed, I can only provide in-State licensed attorneys with legal audits as a consultant or expert. I cannot give legal advice in any form to pro se parties.

I am not permitted to give legal advice directly to individuals in jurisdictions in which I am not licensed. However, in exceptional cases, I could be available to formally appear as co-counsel pro hac vice.

In California where I am licensed but as a practical matter no longer maintain a law office there, I can provide legal audits directly to individuals as well as serve in a broader role as co-counsel with a California attorney with boots on the ground.

An announcement of this new nationwide service will shortly appear on our website, www.foreclosurehour.net.

And meanwhile, your comments and suggestions at info@foreclosurehour.com will be very much appreciated.

Gary Dubin

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