LIT COMMENTARY

If you’re not familiar with the “affidavit” sham, take notice. Banks, foreclosure lawyers, servicers and their employees are committing perjury via false statements on affidavits throughout the court system to enable foreclosure.

Here’s what appears to be a prime example of the court relying on such affidavits.

DAVIS, W. EUGENE

SOUTHWICK, LESLIE H.

HIGGINSON, STEPHEN A.

In an unpublished opinion that happened to come out the same day as the slightly-revised “robosigning” opinion of Reinagel v. Deutsche Bank, the Fifth Circuit briefly reviewed the requirements for a summary judgment affidavit in a note case.

 RBC Real Estate Finance, Inc. v. Partners Land Development, Ltd., No. 12-20692 (Oct. 30, 2013, unpublished).

As to foundation, the affidavit purported to be based on personal knowledge, and said that

“[a]s an account manager at RBC, [the witness] is responsible for monitoring and collecting the . . . Notes.” “Therefore, [he] is competent to testify on the amounts due . . . .”  

As to sufficiency, the Court quoted Texas intermediate appellate case law:

“A lender need not file detailed proof reflecting the calculations reflecting the balance due on a note; an affidavit by a bank employee which sets forth the total balance due on a note is sufficient to sustain an award of summary judgment.”

§ 1026.41 Periodic statements for residential mortgage loans.

(8) Delinquency information. If the consumer is more than 45 days delinquent, the following items, grouped together in close proximity to each other and located on the first page of the statement or, alternatively, on a separate page enclosed with the periodic statement or in a separate letter:

(iii) An account history showing, for the previous six months or the period since the last time the account was current, whichever is shorter, the amount remaining past due from each billing cycle or, if any such payment was fully paid, the date on which it was credited as fully paid;

(e) Exemptions —

(iii) Makes available upon request to the consumer by telephone, in writing, in person, or electronically, if the consumer consents, the information listed in paragraph (d)(2) through (5) of this section; and

(iv) Provides the consumer the information listed in paragraph (d)(8) of this section in writing, for any billing cycle during which the consumer is more than 45 days delinquent.