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HOW TO FIGHT FORECLOSURE WHEN YOUR BANK TRIES TO USE ROBO-WITNESSES
On behalf of Rubin & Licatesi, P.C. posted in Real Estate on Sunday, August 21, 2016.

As our law firm continues to defend our clients in their fight to preserve and protect their civil and property rights in residential mortgage foreclosure actions, the banks’ use of “robo-signers” to prepare foreclosure documents remains a viable and significant defense to our clients. Courts must rule upon the lender’s actions when its employees, with no knowledge of the circumstances of a particular mortgage, purported to give evidence and affidavits on lawsuits that they did not even review before signing the foreclosure documents. The courts are required to rule upon the legitimacy and legality of these types of activities.

Rubin & Licatesi PC has recently been active in defending its clients against a new type of witness now seen in the courtrooms on behalf of the banks and mortgage servicers. The robo-signer has now been joined by a “robo-witness,” a bank “expert” who testifies to the veracity of the bank’s records despite having no personal knowledge of the history of the loan. And as with the robo-signer, courts are starting to be taken to task to rule upon this new type of witness employed by the banks and their attorneys to foreclose on your residential properties.

MERS and its relationship to the robo-witness

MERS is the Mortgage Electronic Registration System, a system created by large lending institutions to enable the assignment and trade of mortgages without incurring certain costs and significant expenses which would have otherwise been paid by the lender. Within MERS, mortgages regularly changed hands, often without notice to the homeowner, and when faced with this process the homeowner has little knowledge of these transactions. This often led to prejudicial results, such as foreclosure actions by the new holder of the mortgage against a homeowner who had been paying the previous lender of record or negotiating and working for a loan modification or relief of some fashion from the burdens and chaos of mortgage arrears.

In order to introduce a business record as evidence in court, a witness must lay the foundation by speaking from personal knowledge about how the record was created. If the bank’s witness cannot speak from personal knowledge about the record, that record may be found inadmissible. These newly minted “bank experts” may actually be the modern “robo-witness,” simply reading from a bank record that they couldn’t vouch for with personal knowledge. Our courts will be faced with the issue of whether to dismiss this robo-witness testimony in foreclosure actions.

Well-prepared homeowners can defeat banks and their robo-witnesses

The fact that your bank may have gaps in its record keeping may provide you with an excellent opportunity to defend your home, but you must be prepared.

  • Retain experienced foreclosure defense lawyers as soon as your lender initiates a lawsuit.
  • Do not rely on promises or advice from the lender and its attorneys.
  • Keep accurate records to paint a clear history of your mortgage, including any communication (written, electronic or oral) from all lenders who have serviced your loan.
  • If you’ve been through a modification, keep a detailed record of all communications and forms.
  • Provide all documentary evidence, including land records, to your attorney.

If you’re under threat of foreclosure, call your attorney and make immediate arrangements to obtain accurate copies of your land records. These can be used together with your first-hand knowledge of your loan history to defend and protect your civil and property rights against residential mortgage foreclosure actions. Remember, your banks have attorneys and so should you.

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