Robo-Testifying In a Nutshell: The Triumph of Expediency Over Due Process in Foreclosure Cases
What is a robo-testifier or robo-witness?
A person with little or no prior banking experience hired by the banks (servicers) for the job of testifying at hundreds of often back-to-back foreclosure trials who are specially trained by the servicers to give hearsay testimony on the banks’ behalf.
After the great robo-signing controversy (which involved the rapid signing of summary judgment affidavits under oath by individuals without personal knowledge of the truth of the statements in the affidavits), new rules were put in place that required greater supervision of the creation of summary judgment affidavits to ensure that the signers actually had personal knowledge of the matters to which they were attesting. As a result, the banks stopped seeking summary judgment and instead went to trial. Foreclosure cases are tried to a judge, not a jury, so the only practical difference for the banks was that what was formerly proven by a summary judgment affiant would now be proven by a live witness. If you would like to learn more about how to find houses in foreclosure, you can head to auction.com.
The servicers trained an army of testifiers whose sole job was to testify in court. These witnesses generally had no experience with the recordkeeping matters they would testify to. They go from trial to trial, usually reading the records related to a particular case just days before the trial.
Why should we care about that? – The triumph of expediency over the due process protection of the hearsay rule.
Foreclosure trials are about the servicers’ paperwork-documents that usually speak to three main issues:
1. Standing-proof that the bank either owned or “held” (possessed) the promissory note before it filed the case;
2. Conditions precedent-proof that the bank sent the borrower the required notice of acceleration; and
3. Damages-proof of what the borrower did not pay and what the bank paid on the borrower’s behalf, such as taxes and insurance.
All of this evidence is in documents and documents are hearsay, meaning they are statements made outside of court by someone who is not under oath and which are being introduced into evidence to prove the truth of the matters asserted in them.
Business records exception to hearsay
The central hearsay battleground in foreclosure trials is the exception to hearsay enjoyed by “business records”-a term of art relating to certain records of a company which meet a specific trustworthiness requirements in the evidentiary rule. To establish the necessary trustworthiness, the rule and related case law require that a record custodian or other qualified witness (someone familiar with the recordkeeping process) testify that the records were created fairly near the time of the event they record by someone with personal knowledge of that event, and that the company creates and keeps these records in the regular course of business. The principal idea is that trustworthiness comes from records of transactions that are made for a business purpose (think entries in an accounting journal or receipts given to a customer) rather than a litigation purpose.
The servicer presents the robo-testifiers as a records custodian or “other qualified” witness. They are told during training that the documents the bank wants to use at trial (quite conveniently) meet all the criteria for the business records exception to hearsay. The witnesses swear an oath at trial and then dutifully parrot what their employer has told them about the records-an act that is indistinguishable from that which shocked the nation about robo-signing. A robo-testifier simply has no personal knowledge as to whether the things he or she is testifying to are true.
Records from other prior servicers
Exacerbating this is the fact that the banks that actually own and hold the notes change servicers so often that, at the time of trial, the then servicer’s robo-testifier must not only make his or her own company’s records admissible, but those of other companies. Again, the testifier’s employer simply tells him or her what to say about other companies’ recordkeeping procedures or (as permitted by a new exception created by the courts just for foreclosure cases) about procedures that each new servicer allegedly performed to verify the accuracy and trustworthiness of the records it received from the previous servicer. With respect to this latter method, the witness will usually use some vague technical jargon such as a “data integrity check” which sounds impressive until further cross-examination reveals that the receiving servicer is simply checking that they have an exact copy of the previous servicer’s records, not whether the information in them is accurate.
The servicers feed their employee robo-testifier hearsay (about recordkeeping procedures) so that he or she can regurgitate it in court under oath in order to establish an exception for other hearsay (the documents). And they are being fed the least trustworthy kind of hearsay because it is being told to them for a litigation purpose. The entire hearsay rule has been eviscerated because there is no document that will not meet the exception if the party that needs to use that document in court can just tell its witness to say that it does. And because the ability to cross-examine those testifying against you is the central reason for the hearsay rule, its complete destruction in foreclosure cases is a fundamental due process violation.
Why don’t the judge’s care about that?
“We’re under a mandate from court administration, Supreme Court, to get the older cases out. Because we might lose funding for that.” ~ Foreclosure judge Diane Lewis
The Supreme Court mandated that judges clear the backlog of foreclosure cases that came from the Supreme Court. This means that evidentiary standards were disregarded at the trial level and rubber stamped with PCAs (per curiam decisions affirming without opinion) at the appellate level. Some judges have acknowledged the robo-testifying problem quasi-publicly.
The testimony of robo-testifiers and proof of their lack of personal knowledge.
The most interesting ones, such as the robo-testifier who had been employed as a cabinet installer before landing the professional witness job. Another had been a meteorologist, which produced this not-to-be-missed exchange at trial:
BY MR. ANTHONY [homeowner’s attorney]:
Q Sir, let me ask, first of all, where were you in 2004? What position did you have at what company?
A I was a meteorologist.
Q All righty.
THE COURT: You were what?
THE WITNESS: A meteorologist.
MR. KATZ [bank’s attorney]: A weatherman, Judge.
THE COURT: Oh, okay.
THE WITNESS: Your Honor, if I may, the difference between a weatherman and meteorologist, I was degreed.
MR. KATZ: I, I apologize.
Another, Cindy Shanabrook, was also a summary judgment affidavits signer back in 2010-2011.3 Note that she testified back in 2008 in a bankruptcy case where the judge concluded in a footnote, that she had no direct knowledge of what she was testifying about.
“The testimony of Shanabrook raises independent issues. By her own admission, she was not involved with this case and became aware of it only in preparation for her appearance at the hearing on the order to show cause. There was no evidence that the person or persons who had direct knowledge of this case or the policies in force at the relevant time were unavailable or unable to appear at the hearing, or that they communicated with Shanabrook. For those reasons, this court finds that Wells Fargo failed to provide a witness competent to testify to matters relevant to this proceeding, and so the court will draw an inference from this refusal that had competent testimony been produced, it would have been adverse to Wells Fargo.”
How does this hurt the borrowers?
As with the robo-signing controversy, some question whether any of this really harms a borrower who admittedly owes somebody some money. Often, the harm is that the judgment amount is overstated. See e.g., Palacios briefs which point out the discrepancies between the bank records and the judgment:
• Many of the amounts awarded cannot be found in the records at all (Title Search, Title Update, Mediation Fee, Property Preservation, Property Inspection and BPO/Appraisals)
• The records show half the amount in the judgment for 2010 taxes–which happens to be about double what was paid every other year. This is a $32,412.86 swing.
• Neither the interest nor the principal due can be computed from the records in evidence
Yet the witness testified that the figures in the final judgment were supported by the records in evidence. The appeal was PCA’d (affirmed for the bank without an opinion).
Proof of attorney involvement
Trial orders generally require the parties to disclose their witnesses before trial. It is typical that, even though servicers rarely use more than one witness at trial, they list several, even dozens, all to testify about the same thing because they do not know which of the army of robo-testifiers will be assigned to the case. The very fungibility of these witnesses indicates that they have no personal knowledge of the facts of any particular borrower’s loan.
Note that the evidence code permits parties to introduce documents into evidence at trial through “a certification or declaration” of the records custodian or other qualified witness that says that the records meet the “business records” hearsay exception. § 90.902, Fla. Stat. So there is no need to undergo the expense of training and transporting live witnesses, when they could just submit what is essentially an affidavit as to each set of records. This can only mean that the real records custodians/qualified witnesses will not testify as needed, not just because the banks attorneys are choosing the more expensive route, but because submitted such affidavits would expose the signers to deposition-just as the original robo-signers were.
The Rolle case
In 2013, plaintiff’s counsel emailed exhibits in the case of Deutsche Bank National Trust Company v. Rolle, Case No. 56 2012 CA 001461 (St. Lucie County). The email inadvertently included instructions from one of the attorneys to others about preparing the Ocwen witnesses for trial which included questions and answers that the witnesses were to give. It also included instructions on how to get the witnesses the documents that they would be testifying about at trial. In other words, although they were being presented as the “records custodian” or at least the person who combed through the bank’s records to obtain the relevant ones, what are alleged to be company records actually come from the attorney.
This revelation of this before trial last year resulted in a lot of accusations and an unsuccessful attempt by Ocwen to seal the records from the public. The case was dismissed, but attorneys around the country are still requesting copies of these documents.
More on the Rolle case, including the inadvertently emailed documents, can be found here…