Defending Your Own Foreclosure? It Could Cost You.

The internet is filled with do-it-yourself articles encouraging homeowners to defend themselves against their bank’s foreclosure action without the assistance of an attorney. Most of these articles focus on issues of standing, or whether or not the bank has the necessary documents to foreclose. But, there is more to a foreclosure than just issues of standing, a lot more. There are a number of federal and state laws governing debt collection, federal and state laws governing residential foreclosures, state rules of civil procedure, local rules of civil procedure and, perhaps most importantly, rules of evidence. If you defend yourself based on internet how-to articles, it could end up costing you more than your realize.

To illustrate my point, I took a look at an appeal decided a few days ago by the Pennsylvania Superior Court. The homeowner appealed a foreclosure judgment entered against her (without an attorney) on grounds that the bank did not have standing to foreclose. The homeowner lost the appeal, and tragically for this homeowner, she did not recognize that the business records the bank filed with the court to obtain the judgment are likely objectionable hearsay under the Pennsylvania Rules of Evidence, and would have been inadmissible…had she raised a proper objection.

In this case, the bank filed a payment history and an affidavit attempting to certify that the payment history is a business record under Rule 803(6) of the Pennsylvania Rules of Evidence. Here is an excerpt from the banks’ motion for summary judgment:

Defending A Foreclosure Without An Attorney Could Cost You.

The banks motion for summary judgment contain 17 pages of payment history records, along with an affidavit signed by an employee at Seterus, Inc, a third-party mortgage servicer, alleging to have “personal knowledge” of the documents. The first few pages of the records appear to be generated by Seterus:

This is what hearsay looks like!

But, half way through the payment history, it becomes obvious that only a small portion of the document is made by Seterus. The remainder of the payment history was actually made by a separate third-party servicer. A few pages in, and the documents begins to look like this:

One of these doesn’t look like the other. Can you spot the hearsay?

So what does all this mean? What was being offered as a business record of one mortgage servicer, was actually two separate business records made by two separate servicers. And, without additional evidence, such as an affidavit from both servicers, the payment history is inadmissible hearsay. If you want a more in depth explanation, read Commonwealth Financial Systems v. Smith and U.S. Bank v. Pautenis.

If your home is in foreclosure, trying to represent yourself could end up costing you more than hiring an experienced foreclosure attorney. The Mays Law Firm PC offers a free, no-obligation consultation to review your case. Call (215) 792-4321 now to schedule your consultation.