Evidence Rules In Mortgage Litigation

Judge Pamela Pepper convened a “hearing” on related disputes involving a debtor’s mortgage, the creditor’s standing, and the payment history on the loan.  The various parties to the dispute sought to obtain, introduce and exclude evidence at the mock hearing.  The comments are almost exclusively hers as she analyzed what we’d just seen.

This is bankruptcy court; does anyone care about evidence? Judges care, it’s our playbook. You might care if the other side is represented by TBL’s. Appeals Courts care.

Fact pattern. ABC mortgage co files r/s; they argue that debtors have missed 4 payments. Debtors argue that ABC doesn’t have standing.

Debtors allege that servicer tried to securitize loan after BR filing.

Combined hearing on Debtor’s objection to claim; r/s; ABC’s objection to confirmation.

These are contested matters and FRCP 9014, allows for discovery under FRCP 7026. Rights under 7026 broader than 2004.

Subpoena: Nothing in Rules of Evidence provides for subpoena. The Rule is in FRCP 45. Defines the qualifications for a subpoena. Is it sufficient to subpoena “The loan file”. Is that sufficiently specific. Often it is overly broad, or vague. Suggest including date ranges for documents.

Can you serve it by mail? Rule 45: Must be delivered to named person. Have to prove service, with statement showing date and manner of service and who was served. Judge: safer to use certified mail to be able to prove it up.

Can judge in a San Antonio case quash a subpoena issued by the court in the district where the witness. No. The judge in the case can give more time to bring the motion to quash but motion must be in issuing court.

A lawyer here can sign a subpoena from a court in a state where they aren’t admitted. [MAYBE NOT. RULE 45 SAYS COURT CLERK OF REMOTE COURT ISSUES IT.  Thanks to Karen Oakes who looked this up while we listened.]

Got to send check for witness fee and mileage. Ask the court clerk for what the witness fee is in that district.

How do you object to subpoena in the issuing court?   Open a Miscellaneous Proceeding in that court. File the motion to quash and the court will open a Miscellaneous Proceeding.

How much notice does the deponent get? It depends. It must be served “timely”.

Consider issuing the subpoena to person with certain kinds of knowledge, rather than by name.

Why subpoena rather than notice depo? Better means of enforcement.

Procedure rules tell you how to GET the documents; Rules of Evidence tell us how to get documents into evidence.

ABC wants to introduce a copy of the mortgage: Is it objectionable because it’s a copy. No.

1002 is the original writings rule—there is nothing known as “best evidence rule”.

1003 says a copy is just as good as a copy.

In cases of forgery or Photoshopping, the original may be important to proof authenticity.

Maybe possession of the original is important, but it’s not for evidentiary purposes.

Problem: debtor doesn’t remember signing the document. Remembering isn’t a requirement for admission as evidence.

902 makes mortgages self authenticating. Seal, signature of official, certified as authenticate. If it is certified, don’t unstaple it or you lose the certification.

Is there a hearsay objection to introduction of mortgage? No, see Rules 801, 80 2. Judge recommends the NCLC Summary of Rules of Evidence. 803(14) excepts document as record of interest in property.   She says she keeps it on her bench as a handy guide.

Business Records 803(6) exception to hearsay. Has a number of elements that are required to meet. Must have been made in the regular course of business of the custodian. Get a script to check the elements.

Make sure that the record is actually made by the custodian’s business…some mortgage lenders outsource record keeping…same issue on records of prior servicer.  Hearsay rule exception doesn’t protect it if it was not made by the witness’s employer in the course of its business.  The exception doesn’t extend to documents in the business’s file not created by the business, such as correspondence from others.

The business records exception 803(6) is the only exception that requires a custodian to authenticate it.

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