Sorry, folks, while courts across this country from trial courts straight up to federal courts are routinely taking notice that banks and law firms are engaged in gross and systemic abuses, we have yet to see the kind of real judicial hard medicine here in Florida that we’re starting to see in other states. The latest example of a court applying the same standards in foreclosure cases that apply in other cases comes from the great state of Main and the highest court in that land, the Supreme Court of Maine….read on…..
The Murphys contend that the court erred in granting a summary judgment to HSBC because genuine issues of material fact
exist with regard to whether (1) Mortgage Electronic Services, Inc. (MERS), the mortgagee of record as ” nominee” for the original lender, Calusa Investments, Inc., effectuated a valid assignment of the mortgage to HSBC; (2) HSBC owns the note originally executed by the Murphys in favor of Calusa Investments; and (3) HSBC gave the Murphys notice of default and the right to cure in compliance with the terms of the mortgage. They also challenge the trustworthiness of the affidavits that support HSBC’s statement of material facts.
Because we determine that the affidavits submitted by HSBC are inherently untrustworthy and, therefore, do not establish the foundation for admission of the attached documents as business records pursuant to M.R. Evid. 803(6), we vacate the judgment without reaching the substantive issues raised.
We have also repeatedly
emphasized that a party’s assertion of material facts must be supported by record
references to evidence that is of a quality that would be admissible at trial.
The New York Court of Appeals, having noted the recurring problem of lenders submitting
unreliable affidavits and documents in residential foreclosure proceedings, has adopted a rule that requires
attorneys representing lenders in foreclosure cases to personally affirm that they have taken reasonable
steps to verify the accuracy of the papers filed with the court in support of the foreclosure.
Although we do not decide the merits of the Murphys’ contention that HSBC is not entitled to a
summary judgment because it failed to produce the original promissory note, if the defendants challenge the accuracy of a copy that has been produced at trial, the plaintiff should be prepared to produce the original or its electronic equivalent, or provide a valid
excuse for its non-production.