Does the Bank have a “Witness” at Trial?

There are a billion nuances to defending a homeowner at a foreclosure trial.  Here’s a fun one – does the bank even have a “witness” who can testify?  In my experience, often not.

Suppose the foreclosure plaintiff is Wells Fargo Bank, N.A. as trustee of some alphabet soup securitized trust.  Whenever this happens, the witness at trial is almost never an employee of Wells Fargo Bank (or whatever corporate fraudster is standing in as the plaintiff).  Rather, that witness purports to be a witness for the servicer – a totally different entity (Ocwen Financial Corp., for example).

When that bank lawyer calls the witness to the stand, one of the first things they try to establish, through testimony, is that Ocwen is the servicer of this loan for Wells Fargo.

Objection.  Hearsay.  There are no documents here establishing Ocwen is the servicer of this loan.

Often, at that point, the bank’s lawyer and witness have nothing to say – and no documents – in which event that objection should be sustained.  That “witness” has no personal knowledge of Ocwen being a “servicer” for Wells Fargo for that loan – that testimony is hearsay, based off of a pooling and servicing agreement which is not before the court and not in evidence.  That makes the testimony inadmissible hearsay.

In other cases, the bank’s lawyer will pull out some type of power of attorney, a document that purportedly gives the servicer, Ocwen, the authority to prosecute foreclosures on behalf of the plaintiff, Wells Fargo.  If you look closely at these POAs, though, you’ll often notice they are limited – the term “limited” often being in the title of the document itself, i.e. “Limited Power of Attorney.”  More significantly, in the body of the document, the servicer is given authority to prosecute the foreclosure only “to the extent authorized by the pooling and servicing agreement,” or words to that effect.

If the bank doesn’t have the pooling and servicing agreement with them in court, then guess what?  The Power of Attorney is useless.  After all, that POA only gives the servicer authority to act (and, essentially, be the servicer) to the extent authorized by a specific document … but that specific document isn’t even in court, so the bank has nothing showing the servicer has the authority to prosecute that case.

As a result, the “witness” who came to court to testify that the company he/she works for is the “servicer” for the plaintiff should not be able to even begin her testimony, as it’s all inadmissible hearsay.

This was one argument I made in a foreclosure trial yesterday, with success.  The bank thought they were going to foreclose, but its witness wasn’t even allowed to testify.

Again, there are dozens of other, little tricks like this that I use to help homeowners (many I’m not willing to share for fear they be seen by evil eyes), particularly in a trial setting.  If you’re a homeowner, but you don’t have counsel, did you know to assert this defense/objection?  If not, how many other bona-fide defenses do you think you’re missing out on?

Banks often show up to trial without a true “witness.” Don’t let them get away with it.

Mark Stopa

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