This is the second in an occasional series.
One problem with the attempt to overwhelm the Court System with Foreclosure Lawsuits, thus laying the groundwork for "reform" by making Foreclosures easier for Foreclosure Plaintiffs to sue, lies with the presentation of Affidavits and Testimony and other unsupported Evidence. See the previous posts for several years in those categories as applicable, and in the Category of "Foreclosures".
In presenting unsupported Affidavits, Testimony and other Evidence, Foreclosure Plaintiffs often present Affidavits or Testimony which does not rest on personal knowledge. Further, some Witnesses or Exhibits purport to offer "summaries" of other people's calculations or work. Unless the Homeowners are represented by counsel when they are sued as Defendants, there is no-one to object under the most-followed, current Court System model.
This system is well known to Foreclosure Plaintiffs. The response of Courts and Legislatures to the overwhelming number of filed Foreclosure Lawsuits has often been to engage in "reforms" suggested by Foreclosure Plaintiffs which will "speed up" the process of their Foreclosures.
A major problem with these "reforms" is when they require the acceptance in a Court proceeding, a lawsuit, of testimony and evidence which has not previously been found acceptable. I.e., Affidavits and Testimony and other unsupported Evidence.
Here are three possible solutions to the problems. These possibilities are offered here in the context of possible changes to Court and Bar Rules. Perhaps the involvement of Legislatures and statutes may be required in some jurisdictions. Further, the language in these proposals addresses the only problem before the Courts in Foreclosure Lawsuits at this time, which is the presentation by Plaintiffs of unsupported Evidence in those cases. If other problems arise, the language can be changed to address additional problems which may develop in the future.
As noted, thes following proposals address a problem currently posed by Foreclosure Lawsuits, which is the presentation of unsupported Evidence by or on behalf of Plaintiffs particularly against Defendants who have no Legal Counsel.
1. Summary Judgment Rule and/or Rules regarding Affidavits filed in Court proceedings. Proposal to add to existing Rule(s):
This provision is applicable to any Foreclosure Lawsuit in which the Plaintiff offers an Affidavit(s) in support of a motion for summary judgment of Foreclosure:
(a) In which the Defendant in a Foreclosure Lawsuit is not represented by Counsel, the Court is empowered and authorized to hold Hearings and take Testimony including in person from the signer of any Affidavit(s) submitted by the Plaintiff, for the purpose of determining compliance with these Rules, including but not limited to the purpose of a finding on the issue of whether the Affidavit was made on personal knowledge.
(b) In any Foreclosure Lawsuit in which the Court shall determine that the Affidavit(s) have not been made or filed in accordance with these Rules, the Court shall strike the Affidavit(s) from the Court File. In addition, the Court in any such case upon such a finding may in its discretion also:
(1) Strike the pleadings of the Plaintiff.
(2) Dismiss the lawsuit.
2. Appellate Rule. Proposal:
In any Appeal from a Judgment of Foreclosure on the ground that the Judgment of Foreclosure is not supported by the Evidence, or is against the manifest weight of the Evidence, review of the Judgment with regard to such ground or grounds shall be de novo [brand new by the reviewing Court on appeal].
3. Pro Bono Bar Rule. Proposed additions:
(1) Include representation of Foreclosure Lawsuit Defendants who do not qualify for Legal Aid.
(2) Include representation of Foreclosure Lawsuit Defendants who have qualified for Legal Aid and upon referral and certification by Legal Aid that Legal Aid is unable to handle the representation without the referral.
Do you have other solutions? If so, or if you want to comment upon these proposed Rule changes, please leave a Comment with your thoughts. Thank you.
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