Affidavits and Robo-signing

The Foreclosure process often involves affidavits, which are documents in which someone attests to a set of facts. Foreclosure affidavits typically involve the mortgage servicer confirming that the foreclosure is valid specifically, that the servicer or mortgage holder has a right to foreclose because the mortgagee has defaulted on the mortgage.

Foreclosure Process and Affidavits

Often, mortgage servicers looking to foreclose ask the court for what is called summary judgment, which means they want the court to rule in their favor without need for a trial based on clear evidence that the foreclosure is in order. To show the court that it should order foreclosure, the servicer or mortgage older typically submits affidavits and other proof (such as the mortgage note) showing who in fact owns the mortgage in question. Foreclosure affidavits also include statements about the status of the mortgage account, such as payment history, what is currently owed, when it went into default and how far behind the mortgagee is.

If the borrower does not contest the foreclosure, many foreclosure cases end at this point, with the judge granting summary judgment for the mortgage servicer. This allows the foreclosure to be executed and the property to be sold.

"Robo-signing" and Foreclosure Affidavits

Affidavits are documents submitted to the court in which a person attests to personal knowledge as to what is contained. This means that the person signing a foreclosure affidavit should have verified all information he or she is stating to be true.

The term "robo-signing" has been coined to describe rapid fire signing of foreclosure affidavits without adequately verifying the truth of what the affidavits state. Mortgage servicers who process very high volumes of mortgages in quick succession have been accused of robo-signing to speed up the foreclosure process.

In cases where the mortgage servicer did not review underlying documentation, foreclosure affidavits signed by the servicer may be challenged as inadequate to prove that foreclosure should occur. In some states, foreclosure affidavits must include copies of all documentation on which the affidavits rely. In these states, failure to include such documentation could also be challenged.

Challenging Foreclosure Affidavits

Typically, the mortgagee can challenge the foreclosure affidavits at the point when the bank or mortgage servicer has requested summary judgment. Citing robo-signing to challenge mortgage affidavits is one way to possible stave off summary judgment. Another way to challenge the affidavits is to challenge any inaccurate information about the mortgage and payment history contained in the affidavits.

Though foreclosure affidavits are often perfectly accurate, sometimes they may contain bad information. One example might be if the affidavits state an inaccurate amount owed or payment history. Often, mortgages have been sold many times, with information as to payment potentially lost in the shuffle. Other times, fees may have been attached to the account improperly.

What Happens Next?

Showing that a mortgage servicer's foreclosure affidavits are inadequate does not resolve the underlying dispute about the property and whether it will be foreclosed. Lenders and mortgage servicers typically rely on affidavits in order to gain summary judgment in foreclosure actions.

In cases where the affidavits are successfully challenged or found lacking by the court, the borrower may not have won a final victory, but has staved off a final decision. Such borrowers then may face the lender or servicer at trial to resolve whether the property, in fact, may be foreclosed and sold.

If you think your foreclosure may have happened improperly, an experienced foreclosure attorney can help you navigate your options.