Monday, February 7, 2011

Wisconsin Appeals Court: Affidavits Not Based On "Personal Knowledge" Sink Lender's Attempt To Score Summary Judgment In Foreclosure Action

Wisconsin Appeals Court: Affidavits Not Based On "Personal Knowledge" Sink Lender's Attempt To Score Summary Judgment In Foreclosure Action


A Wisconsin intermediate appeals court recently reached the relatively unremarkable, predictable, and certainly non-ground-breaking conclusion that affidavits filed by a foreclosing lender that are not based on the "personal knowledge" of the affiant are insufficient to establish a basis for summary judgment. 


What does merit note is that, in reaching its ruling, it reversed the decision of Jefferson County Circuit Court Judge Jacqueline R. Erwin, the lower court judge who apparently didn't have a problem with these obviously flawed affidavits in deciding to allow the foreclosure to go forward. Unlike the vast majority of cases, the homeowner/couple here exercised their right to have an appellate court review, a right that most homeowners in foreclosure are either unaware of, or lack the wherewithal to pursue.

From the ruling (footnotes contained in the original text, bold text is my emphasis):

¶ 13 The Bank submitted two affidavits to support its motion for summary judgment: one by an attorney for the Bank, and one by an agent for BAC Home Loans Servicing, L.P., f/k/a Countrywide Home Loans Servicing, L.P. ¶ 14 The attorney averred that Diane Cano executed a note secured by a mortgage on her property in July 2006; that an assignment of the mortgage to the Bank was recorded in June 2007; and that the Canos had failed to make the January 2007 and subsequent mortgage payments, leading the Bank to file this foreclosure action in April 2007. The attorney attached the following documents to his affidavit: the mortgage assignment; a statement of the Canos' mortgage payment history for September 2006 to May 2009 generated by Bank of America Home Loans on June 2, 2009, and indicating that the Canos' last mortgage payment was for December 2006; and a notice of default and acceleration Countrywide sent to Diane Cano in February 2007.

¶ 15 The BAC agent averred that he had access to the financial records for the Canos' mortgage; that Diane Cano executed a mortgage to Mortgage Electronic Registration Systems, Inc., acting as nominee for S&L Investment Lending, Inc.; and that the Canos had failed to make their January 2007 and subsequent mortgage payments. The agent did not attach any documents to his affidavit.

¶ 16 We conclude that the Bank's affidavits do not establish a prima facie case for summary judgment. Affidavits supporting a summary judgment motion must be based on personal knowledge and "set forth such evidentiary facts as would be admissible in evidence."[4] WIS. STAT. § 802.08(3). Nothing in the attorney's affidavit indicates that the attorney's averments as to the Canos' payment history are based on personal knowledge. To the extent that the affidavit relies on the attached payment history with Bank of America, we conclude that the affidavit does not set forth the facts necessary to establish a prima facie case that the bank's purported payment history would be admissible at trial.

¶ 17 As we explained in Palisades, an affidavit must establish a prima facie case that attached payment statements are admissible evidence under an exception to the hearsay rule to support a motion for summary judgment. See Palisades, 324 Wis. 2d 180,

¶ 11 & n.3; WIS. STAT. § 908.01(3) (defining "hearsay" as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted") and § 908.02 (hearsay generally inadmissible). Here, the only arguably applicable exception to the hearsay rule is the exception for business records under WIS. STAT. § 908.03(6) (records "made at or near the time by, or from information transmitted by, a person with knowledge, all in the course of a regul arly conducted activity, as shown by the testimony of the custodian or other qualified witness" are not excluded by hearsay rule). Thus, for the statement of the Canos' payments to support a motion for summary judgment, the affidavit must establish that the affiant "is qualified to testify that: (1) the records were made at or near the time by, or from information transmitted by, a person with knowledge; and (2) this was done in the course of a regularly conducted activity." Palisades, 324 Wis. 2d 180,

¶ 15. The attorney's affidavit contains no such averments

¶ 18 The BAC agent's affidavit is similarly flawed. The agent avers that his knowledge of the Canos' default on their mortgage is based on his access to the financial records for the Canos' mortgage, yet no financial documents are attached to the affidavit. Even if we assume the BAC agent is referring to the statement attached to the attorney's affidavit, the agent's affidavit fails to set forth the necessary facts to establish a prima facie case for the admissibility of the statement. The agent's affidavit does not contain any facts to show that the agent is qualified to testify that the statement generated by Bank of America on June 2, 2009, was "made at or near the time by, or from information transmitted by, a person with knowledge," or that "this was done in the course of a regularly conducted activity."[5] Id. We conclude that the Bank has not established a prima facie case for summary judgment.[6] Accordingly, we reverse and remand for further proceedings.

For the ruling, see Bank of New York v. Cano, No. 2010AP477 (Ct. of App. Dist. 4, January 20, 2011) (unpublished) (go here for the "Google Scholar" version).

Sunday, February 6, 2011


This is very simple.

The LAWS dictate that the bank (or pretender lender) must offer PROOF of OWNERSHIP.

DEMAND a “pre-trial settlement conference.” Mediators are not allowed.

Make this an all or nothing wager. (Wall Street likes betting with other peoples’ money, right?)

Give the bank (or pretender lender) 60 DAYS from the initial hearing to produce the ORIGINAL NOTE (EVIDENCING THE ENDORSEMENTS IN BLANK or NO ENDORSEMENTS for TRUSTS?) – PLUS the ALLONGES, and ORIGINAL MORTGAGE.

Modern forensic analysis – to be paid by HAMP – would verify the credibility of the documents. Ink and paper can be time-dated with modern technology. Furthermore, hand writing analysis techniques and forensic computer technologies are also available and very refined today. Furthermore, The CEO’s (of the employees who “VERIFY” the accuracy of their own signing authority as evidenced in their own affidavits,) would be “sworn in” for perjury and other related potential criminal actions. This would also perhaps eliminate forgeries and criminally manufactured documents by the banks (or pretender lenders,) their foreclosure mill attorneys, and/or their default document preparation firms… To further GUARANTEE and ENSURE fairness, the Homeowner would choose the forensics firm who would operate under the penalty of perjury and fraud.

This simple wager would be established as follows:

1- The pretender lender would “sign off” at the initial “pre-trial settlement conference” on the mortgage and note, (FREE AND CLEAR with clean, marketable title, including the pretender lender’s assumption of all future liabilities for “John Does’ 1- 1000.”) The homeowner would then drop all future claims and counterclaims, and own their home free and clear. Further criminal prosecutions would be dropped for this individual case.

2- IF the pretender lender would NOT “sign off,” then the FORENSIC TESTING RESULTS – OR pretender lender’s NON-COMPLIANCE … in the following 60 days … would determine the FINAL OUTCOME of their claim.

3- At the end of 60 days at the NEXT summary hearing, (held exactly in 60 days,) IF the bank CAN LEGALLY PROVE THEIR OWNERSHIP by producing the legally necessary documents to the court, the HOMEOWNER has 30 days to peacefully surrender the premises without any further litigation.

4- At the end of 60 days at the NEXT summary hearing, (held exactly in 60 days,) IF the pretender lender COULD NOT PROVE THEIR OWNERSHIP to the court, the HOMEOWNER would receive the HOME – FREE AND CLEAR – (and FREE FROM ALL FUTURE LIABILITIES from “John Does’ 1 – 1000″ ….) PLUS, the homeowner would additionally receive FIVE MILLION DOLLARS CASH ($5,000,000.00) from the pretender lender now proved to be a criminal. Mandated criminal prosecutions and incarcerations would then follow for corporate parties found guilty of fraud, perjury, RICO Conspiracy, etc….




C) END THE TYPICALLY UNFAIR AND DECEPTIVE PRACTICE OF QUESTIONABLE FORECLOSURES – and, so far, MOST (if not ALL) FORECLOSURES are questionable! (… Let’s not forget about the RAMPANT MORTGAGE FRAUD by the BANKERS in the lax and irresponsible origination and appraisals.)

D) END UNNECESSARY LITIGATION COSTS to homeowners, who cannot afford litigation in the first place. Only 5%(?) of homeowners are litigating and many of them are going bankrupt to merely protect their legal rights. There is currently very little JUSTICE for most homeowners.

Long and protracted litigation, through slick, legal maneuvering by attorneys (on both sides) – is demonstrably immoral and unethical.

E) END The strain of COURT COSTS to the TAXPAYERS and STATES!

F) END EMBARRASSMENT by many Judges, Bar Associations, and GOVERNMENT AGENCIES who have aided and abetted, at the very least, unethical behavior, or at the very worst, criminal behavior – regarding foreclosure fraud and mortgage fraud by the banks!

G) END The MISTRUST by citizens of law enforcement, regulatory agencies, and governments who have been wholly negligent of thier DUTIES to PROTECT and SERVE the citizens (who pay the “PUBLIC SERVANT’s” wages and benefits through taxes!)

H) END the WASTE and FRAUD perpetrated on America by worthless government and social policy programs!

I) END the CERTAIN DECLINE OF OUR ECONOMY. Millions of FREE and CLEAR HOMES would RE-START our economy with legitimate (and immediate) equity based lending!

J) END CLOUDED, UNMARKETABLE TITLES that will clog up the legal system for years to come!




You may call this:



Thursday, February 3, 2011


Hundreds of Judges across the country have put foreclosures into a waiting pattern demanding that the parties complete the HAMP modification procedure before they rule on the foreclosure or any defenses and counterclaims. The attorney for the pretender lender usually comes back with what Judge Redfield Baum, Federal Bankruptcy Judge in phoenix, called a haphazard array of answers usually amounting to a a report that the “investors turned down the modification.”



This means that the servicer is pretending to go through a modification procedure,  after acknowledging that the servicer has no stake in the obligation, note or mortgage, and after putting the borrower through hoops and ladders, lost papers, resubmissions, and a variety of other stall tactics then reports back, often directly to the Court that the investors turned down the modification. 

Our best information here is that no investor has EVER been contacted regarding a modification or settlement of ANY mortgage at any time. Based on our information no such attempt was ever made or intended and the lawyers who made those representations in Court knew it, inasmuch as it was always the intent of the servicer to create the illusion of a modification process rather than act as the go-between in an actual settlement process. 

Further, based upon the information we have obtained directly from people involved in the securitization process, even Deutsch Bank, the most often used name as “Trustee” of asset backed securities pools, does not have a single Trustee from their Trust Department involved, nor are these deals considered to be within the scope of duties of their Trust department. To the contrary, senior officers of Deutsch confirm that they neither have the duty nor the power to approve modifications or settlements and that they have virtually no contact with investors. It appears that the ONLY thing that “Trustees” actually do is a collect a fee for pretending to be a fiduciary (Trustee) much like the loan originator with the homeowner was paid a fee to pretend to be a lender. 

Courts are not pleased when they are the used as a vehicle for fraud. They are especially not pleased when large law firms and large financial institutions in whom the Court reposes a certain amount of trust, perpetrate such a fraud. Lawyers and pro se litigants are now asking for proof that the investors were presented with a modification and proof that the investors turned down the modification. The attorneys for the pretender lenders are stone-walling for the same reason that they stone-walled on the mortgage documentation — no such evidence exists because nothing was ever done. 

This was probably the reason why Levitin called for elimination of the servicers from the modification or settlement process and installing a government sponsored agency to act as the go-between. The servicers and pretender lenders are fighting this proposal tooth and nail because if it went through, the entire lie would unravel. It would become obvious that many “trusts” never existed or do not now exist, many investors have already elected their remedies and the the pool was dissolved, and the ownership of obligation, note and mortgage has never been transferred.

Tuesday, November 30, 2010

Gulfport man tries to kill himself as bank forecloses on his home

Editor's Note: This isn't just another sad story of someone loosing their home to the thieving banks, this is your neighbor, your brother, sister, parents, best friend. This is the type of stress the media normally doesn't write about, but it happens everyday in all parts of the country, not just Florida. People are fighting for, in many cases, not only their homes, but their lives. They are loosing not only their homes, but their jobs, their marriages, and now their lives.

When does this stop? When, or how do we give some HOPE to these persons, whom feel they are all alone in this fight? The fraudulent practices of these big banks are all over the news, in the court rooms, foreclosure mills are being called out of false documents, but where is the justice? Ladies and gentlemen I implore you to take a few minutes out of your daily lives and write your state Senators, your state Attorney Generals (all 50 state AG contacts listed in this blog). Let these persons of our government, whom we put in office with our voice, via votes, understand that enough is enough.

These big banks, need to stop the fraudulent foreclosures, they need to modify the thousands of mortgages that they bleed every penny they can, then tell the persons they don't qualify because of missing paperwork (that the banks have conveniently lost on their own), help put this economy back on track that they so skillfully helped destroy.

This editor's note isn't just some person on a ban-wagon, I have proof of these accusations, those thieving banks have been trying to do the same to me and my family, for the past few years, hence the reason for this blog. To notify those out here that read this, they can be beat, but we need to stand together and fight. Remember: THE MASSES WILL BRING DOWN THE GIANTS!!!!


Gulfport man tries to kill himself as bank forecloses on his home

By Jamal Thalji, Times Staff Writer
In Print: Thursday, November 18, 2010

A sheriff’s deputy and bank representative were taking possession of the home in Gulfport on Monday when they heard Rubright shoot himself. Foreclosure began two years ago.
A sheriff’s deputy and bank representative were taking possession of the home in Gulfport on Monday when they heard Rubright shoot himself. Foreclosure began two years ago.

[DIRK SHADD | Times]
GULFPORT — The foreclosure process started more than two years ago. Papers were served. Hearings held. Judges ruled. Back and forth it went, inexorably. Like millions across the nation, Boyd Rubright, 71, was slowly losing his home.

The writ of possession — the final document that strips someone of a foreclosed home — was signed Nov. 2. The occupant received 24 hours' notice. Then, ready or not, he had to go.

Monday was the day.
The bank representative was the first to arrive at 5840 Gulfport Blvd. S. It's the white house with the green trim and the empty birdbath.The house looked vacant, but the representative thought he saw someone inside. A deputy arrived, and knocked on the front door. He announced himself from the outside, loudly.

No one answered.

The bank sent someone to drill through the lock. It was 9:02 a.m. when the drilling stopped. The busted lock hit the floor inside.That's when they heard the gunshot.

• • •

The deputy moved everyone away from the house and called for backup. Then he and a Gulfport officer went inside, weapons drawn.They found Rubright slumped in an armchair in a small room. Police said he placed the barrel of a .357-caliber revolver in his mouth and pulled the trigger.

The officers couldn't find a pulse; paramedics were called.

His oldest daughter learned about the shooting when she talked to a St. Petersburg Times reporter Wednesday night.

"When the foreclosure started a couple of years ago, he told us that he was not giving up his house for anything," said Margaret Fitzgibbons, 44. "They would have to take him out or he'd kill himself. 

"That's why I wasn't surprised."

• • •

It's hard to find anyone who really knew Rubright. Everyone knew a piece of the man. But not the whole.
He was married and divorced three times. His last marriage ended in 2007. He has three daughters and a son from the first two. The son and a daughter want nothing to do with him.

The other two daughters tried to reconnect with their father. Fitzgibbons, who lives in New York, wanted her three children to know their grandfather.It hasn't been easy. Depressed. Difficult. Disconnected. That's how the oldest daughter described her estranged father. They didn't meet until she was 14.

Rubright spent two decades working at Ted Peters Famous Smoked Fish. He left three years ago. He either quit, was fired, or retired, depending on whom you ask.His health was failing, but he kept checking himself out of the hospital. He lived on Social Security and couldn't afford the house payments anymore.

As foreclosure loomed, Fitzgibbons said she and her half sister asked Rubright to come back to New York to live with them.He refused. He had been in that house for two decades.He threatened to take his own life. His daughters didn't know what to do.

"He didn't want to leave his home," she said. "He said if he left his home he couldn't keep his guns and smoke his pot."

• • •

Mental health issues. Substance abuse. Stress. Hopelessness. Withdrawing from loved ones and friends. Mood swings. Rage. All classic warning signs of suicide.

Suicides hit a 12-year high in Florida in 2008, when 2,723 people took their own lives, according to the state. Pinellas County also had a record that year, with 177 suicides.

Is Florida's sour economy and unending housing crisis to blame? The cause of suicide is always greater than a single problem. But the economy has definitely become a factor.

"Dangerous times are times of transition," said Senta Goudy, director of the Florida Statewide Office of Suicide Prevention. "It's the loss of a spouse, the loss of a home, the loss of a job. Those are the times when a person is most at risk.

"They don't have the support network they need. They don't have a place to talk to somebody when they lose hope."

Pinellas sheriff's deputies evict people in landlord-tenant disputes and foreclosures about 300 times a month in the county. 

It's rare for someone to still be living there by that point. Sgt. Richard North oversees the court processing unit, which always seems to be delivering bad news: witness subpoenas, foreclosures, evictions, domestic violence injunctions.

While rare, Rubright isn't the first person to try to take his own life in the moment they must face leaving their home.North has seen it a handful of times in the last 10 years.

It almost happened last month. A 42-year-old Clearwater man who was being evicted in a family dispute tried to hang himself. The deputy forced his way inside and pulled the man down from the belt tied around his neck.
"He saved his life," North said.The man told the deputy he didn't have anywhere to go.

• • •

Paramedics arrived at 5840 Gulfport Blvd. S just minutes after the gunshot. When they checked Rubright, they were able to find a pulse.They rushed him to Bayfront Medical Center, where he has been in critical condition since Monday. Police believe the bullet may have missed his skull and instead went through his throat.

His prognosis is unknown. Rubright has not regained consciousness. But one of his few friends, 69-year-old Karla Kegerise, visited him Wednesday."I went down to pray with him and he looked good," she said.
His two daughters desperately want to fly down to visit him. But they can't afford it. Susan Rubright, 40, lost her job as an administrative assistant on Nov. 1. She has three children.

"They need us at the hospital," she said, crying on the phone from her home in New York. "We're his only next of kin, and they can't make any decisions without us."But we can't afford it at all. I can't even pay my rent."

Jamal Thalji can be reached at or (727) 893-8472.

Need help?
Anyone contemplating suicide can call the National Suicide Prevention Hotline toll-free at 1-800-273-8255.
For more information about suicide online, go to . If a suicide attempt is imminent, call 911.

The fraudulent documents are flying

Wisconsin Statutes, Chapter 134, 134.15 “Issuing and using what is not money; contracts void. (1)Any person who shall knowingly issue, pay out or pass, and any body corporate, or any officer, stock holder, director or agent thereof who shall issue, pay out or pass, or receive in this state as money or as an equivalent [...]
The fraudulent documents are flying.

Please forward your documentation to:

State of Wisconsin, Department of Justice
Nelle R. Rohlich, Asst. Attorney General
17 W. Main Street/P.O. Box 7857
Madison, WI 53707-7857
Phone 608-267-8901 Fax 608-267-2778

If you have a problem with a judge, try this:

Wisconsin Judicial Commission
110 E. Main Street, Suite 700
Madison, Wisconsin 53703
Phone: 608-266-7637
Fax: 608-266-8647