WASHINGTON (Reuters) – Federal bankruptcy judges in Delaware are due to hold separate hearings Monday on requests by two defunct subprime mortgage lenders to destroy thousands of boxes or original loan documents.
The requests, by trustees liquidating Mortgage Lenders Network USA and American Home Mortgage, come despite intense concerns that paperwork critical to foreclosures and securitized investments may be lost.
A series of recent court rulings have increased the importance of original loan documents, holding that they are essential for investors to prove ownership of mortgages and to have the right to foreclose.
In the Mortgage Lenders case, the U.S. Attorney in Delaware has formally objected to the requested destruction because loss of the records “threatens to impair federal law enforcement efforts.”
The former subprime lender shut down in February 2007. In a January 6, 2010, motion, Neil Luria, the liquidating trustee, asked Bankruptcy Judge Peter J. Walsh for permission to destroy nearly 18,000 boxes of records now warehoused by document storage company Iron Mountain Inc.
Luria stated that destruction is necessary to eliminate $16,000 per month in storage costs as he disposes of the last assets of the bankrupt company.
In the American Home Mortgage case, the liquidating trustee, Steven Sass, has asked Bankruptcy Judge Christopher Sontchi to approve destruction of 4,100 boxes of loan documents stored in a dank parking garage beneath the company’s former headquarters in Melville, Long Island.
* Two defunct lenders seeking to destroy boxes of records
* One judge temporarily blocks document destruction
* In separate hearing, destruction partially allowed
* Rulings come amid wide concerns of missing loan docs
By Scot J. Paltrow
WILMINGTON, Del., Jan 24 (Reuters) – A U.S. bankruptcy judge temporarily blocked bankrupt subprime lender Mortgage Lenders Network USA from destroying 18,000 boxes of original loan files after federal prosecutors said documents in them may be needed as evidence in more than 50 criminal investigations.
In a hearing Monday before U.S. Bankruptcy Judge Peter J. Walsh, a representative from the Delaware U.S. Attorneys’ Office said she did not know details of any of the investigations.
But she said prosecutors and FBI offices around the country had requested time to access to the boxes and assess whether the contents contain needed evidence before the judge permits any destruction.
WASHINGTON (Reuters) – Federal bankruptcy judges in Delaware are due to hold separate hearings Monday on requests by two defunct subprime mortgage lenders to destroy thousands of boxes or original loan documents.
The requests, by trustees liquidating Mortgage Lenders Network USA and American Home Mortgage, come despite intense concerns that paperwork critical to foreclosures and securitized investments may be lost.
A series of recent court rulings have increased the importance of original loan documents, holding that they are essential for investors to prove ownership of mortgages and to have the right to foreclose.
In the Mortgage Lenders case, the U.S. Attorney in Delaware has formally objected to the requested destruction because loss of the records “threatens to impair federal law enforcement efforts.”
The former subprime lender shut down in February 2007. In a January 6, 2010, motion, Neil Luria, the liquidating trustee, asked Bankruptcy Judge Peter J. Walsh for permission to destroy nearly 18,000 boxes of records now warehoused by document storage company Iron Mountain Inc.
Luria stated that destruction is necessary to eliminate $16,000 per month in storage costs as he disposes of the last assets of the bankrupt company.
In the American Home Mortgage case, the liquidating trustee, Steven Sass, has asked Bankruptcy Judge Christopher Sontchi to approve destruction of 4,100 boxes of loan documents stored in a dank parking garage beneath the company’s former headquarters in Melville, Long Island.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JACK R. LORRAINE AND, :
BEVERLY MACK :
Plaintiffs :
:
v. : CIVIL ACTION NO. PWG-06-1893
: MARKEL AMERICAN :
INSURANCE COMPANY :
Defendants
Excerpt:
Thus, when a lawyer analyzes the admissibility of electronic evidence, he or she should
consider whether it would unfairly prejudice the party against whom it is offered, confuse or mislead
the jury, unduly delay the trial of the case, or interject collateral matters into the case . If a lawyer is
offering electronic evidence, particularly computer animations, that may draw a Rule 403 objection,
he or she must be prepared to demonstrate why any prejudice is not unfair, when measured against the
probative value of the evidence. In this case, counsel did not address whether Rule 403 was implicated
with respect to the electronic evidence attached to their summary judgment memoranda.
Conclusion
In this case the failure of counsel collectively to establish the authenticity of their exhibits,
resolve potential hearsay issues, comply with the original writing rule, and demonstrate the absence
of unfair prejudice rendered their exhibits inadmissible, resulting in the dismissal, without prejudice,
of their cross motions for summary judgment. The discussion above highlights the fact that there are
five distinct but interrelated evidentiary issues that govern whether electronic evidence will be
admitted into evidence at trial or accepted as an exhibit in summary judgment practice. Although each
of these rules may not apply to every exhibit offered, as was the case here, each still must be
considered in evaluating how to secure the admissibility of electronic evidence to support claims and
defenses. Because it can be expected that electronic evidence will constitute much, if not most, of the
evidence used in future motions practice or at trial, counsel should know how to get it right on the first
try. The Court hopes that the explanation provided in this memorandum order will assist in that
endeavor.63
May 4, 2007
/S/
PAUL W. GRIMM
CHIEF UNITED STATES MAGISTRATE JUDGE
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