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Q is for Qualified Witness

Categories: Bankruptcy Alphabet

Since the mortgage crisis of 2008, we’ve heard a lot about the mysterious and elusive “robo-signors,” who crop up like cockroaches.  Just when you think you’ve killed one off, another name shows up.  They have been working in the back rooms of national law firms and loan processing companies like Lender Processing Services, and one of its divisions, DocX. These “robo-signors” has signed and notarized documents that have made their way into our county recorder’s offices and courtrooms throughout the nation that have caused millions of homeowners to lose ownership of their homes to foreclosure. In an effort to provide Quality information to our legal community, my letter Q in the Bankruptcy Alphabet is for Qualified Witness.

A qualified witness is a witness who helps lay a foundation for admission of evidence under the business exception to the hearsay rule by explaining how a business keeps its records. Every attorney practicing in federal court needs to understand the Federal Rules of Evidence (“FRE”). I highly recommend having a copy of Evidentiary Foundations, by Edward J. Imwinkelried in your library. Every lay witness, not an expert, must have Personal Knowledge, FRE §602, “A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence of personal knowledge may consist of the witnesss’s own testimony.”

When business records of a loan servicer are presented in our bankruptcy court system, they must be authenticated. According to Imwinkelried, the foundational elements, for computer records are:

1.  The business uses a computer system
2.  The computer is reliable
3.  The business has developed a procedure for inserting data into the computer
4.  The procedure has built-in safeguards to ensure accuracy and identify errors.
5.  The business keeps the computer in a good state of repair.
6.  The witness had the computer read out certain data
7.  The witness used the proper procedures to obtain the readout
8. The computer was in working order at the time the witness obtained the readout.

We bootcampers who follow the bankruptcy litigation model, have found that when a loan servicer or lender puts forth a declaration, asserting they have personal knowledge of a debtor’s loan in a bankruptcy Proof of Claim, they generally do not have the required personal knowledge. In order to discredit, disqualify and exclude the witness’ testimony, counsel must usually obtain a deposition of the witness. Alternately, counsel can search court records where the witness’ testimony has been inadmissible and use that to establish a pattern and practice by the witness and her employer. However, this would only be persuasive.

 

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