If you’re an attorney or other advocate involved in defending homeowners or consumers, you should be acutely aware of the difficulties lenders or creditors face in trying to obtain foreclosure or judgments that entitle them to collect the debts. The bottom line is that in the vast majority of cases,
Plaintiffs trying to foreclose or collect debts have absolutely no admissible evidence that a court could use t0 grant them a judgment.
This is so important I want to state it again.
Plaintiffs trying to foreclose or collect debts have absolutely no admissible evidence that a court could use t0 grant them a judgment.
If you don’t believe me, please read the following excerpt of an article that was written by a prominent Plaintiff’s debt collection attorney:
All of us know it is more difficult to collect purchased debt than originated debt by using the traditional legal collection
approach. The difficulties from a lawyer’s perspective lie mainly in problems of proof. A creditor that originates debt has
access to the documentation that courts require attorneys to introduce as evidence in order to obtain a judgment. Many debt
purchasers either do not have access to the source documents or can only obtain those documents at great cost. How then can
debt purchasers utilize the court system to collect debts that are legally due and valid? Ken Gelhaus reports that in New York
the problems of collecting on purchased debt have increased greatly in the last year. At one time in New York, court clerks
entered a default judgment on claims for “sums certain” without running the papers past a judge for review and signature. In
recent months, however, clerks are refusing to do so and requiring that a judge’s order granting default judgment be obtained.
The Full Article Can Be Found here
I wanted to emphasize that last paragraph for you. That paragraph is a stunning admission that reflects what is still happening in foreclosure courts and other courtrooms all across the country.
COURTS CONTINUE TO GRANT SUMMARY JUDGMENT IN FORECLOSURE AND COLLECTIONS CASES WHEN THEY HAVE NOT A SINGLE PIECE OF ADMISSABLE EVIDENCE TO SUPPORT THE GRANT OF SUMMARY JUDGMENT.
I’ve examined thousands of affidavits to support foreclosure and I’ve seen very few that meet the most basic evidentiary basis to support summary judgment. Some of the reasons are identified in the article described above, but there are others. The bottom line is and let me state it again….
COURTS CONTINUE TO GRANT SUMMARY JUDGMENT IN FORECLOSURE AND COLLECTIONS CASES WHEN THEY HAVE NOT A SINGLE PIECE OF ADMISSABLE EVIDENCE TO SUPPORT THE GRANT OF SUMMARY JUDGMENT.
Some judges now get it and are starting to do something about it. To refresh your memory, please review this recent post which details an article that appeared in the Wall Street Journal. Importantly, take a moment to read this transcript from a hearing in front of Pinellas Judge Anthony Rondolino. Note that this learned and experienced trial judge performed extensive research on the subject and essentially confirmed the serious problems Plaintiffs face in trying to obtain summary judgment.
Finally, I attach here a detailed Motion to Strike Affidavit that I have filed in a case which, in great detail, describes why the affidavits submitted in foreclosure cases are legally insufficient. So what’s a crafty Plaintiff’s attorney or lender to do? Well, right now they’re just trying to push through as many foreclosures as they can before more judges catch on to what judges in this circuit have learned. But when courts finally shut down this evidentiary farce that’s occurring all across the country, they’re going to resort to other means….which brings us to the last exhibit in this post.
BEWARE OF ALL MODIFICATIONS!
Most mortgage modifications do very little, if anything to benefit the homeowner. What they do accomplish however, in many cases, is the solve the Plaintiff’s very difficult evidentiary challenges. Remember the article above and how it details the challenges Plaintiff’s face in proving their foreclosure case. The way they will seek to overcome these challenges is to enter the modifications or novation agreements as the proof they need to win their case…
And there you have it folks, that’s how the lenders will get their unwinnable case won!
