Mathew Bavaro
Photo by Melanie Bell
CORRECTION
The article mischaracterized a distinction drawn by Miami-Dade Circuit Judge Jennifer Bailey between the testimony of records custodians and the affidavits of robo-signers. Records custodians need personal knowledge of foreclosure record protocols and procedures. Robo-signers lied in affidavits about what they knew about foreclosure records.
Robo-signers, who broke court rules by signing foreclosure affidavits without personal knowledge of loans for banks, may have faded from the scene. But homeowners now are dealing with a similar lender's representative who they claim infringes on their right to due process.
South Florida foreclosure defense attorneys object to the breadth of records introduced in foreclosure trials by business custodians of record, dubbing them "robo-witnesses."
The problem seems more prominent in Miami-Dade Circuit Court, where the court has placed a priority on pushing stalled foreclosure cases to trial. By late last year, Miami-Dade had 47,738 pending cases.
Defense lawyers claim circuit judges are under so much pressure to close cases that some are neglecting people's right to a fair trial by allowing witnesses who may not be legally qualified to testify on behalf of lenders.
"What's happening now is like someone is pushing the plunger down the toilet to flush all these cases down the system," said foreclosure defense attorney Bruce Jacobs of Bruce Jacobs & Associates in Miami. "The whole idea of making sure the procedures are afforded to both sides seems to have taken a back seat to clearing the backlog of cases."
Many of the cases on trial were filed in 2008, 2009 and 2010 when many big lenders were represented by some foreclosure law firms that succumbed during a state attorney general's investigation of fraudulent foreclosure filings.
A year after attorneys general signed a $25 billion settlement with the nation's largest banks accused in the robo-signing scandal, the landscape hasn't changed much for defendants in Miami-Dade, said foreclosure defense attorney Thomas Ice, founder of Ice Legal in Royal Palm Beach.
The national mortgage settlement put an end to the so-called robo-signing practices popular during the peak of the foreclosure crisis. Back then, lenders and their law firms hired people to sign thousands of affidavits without personal knowledge of the information they were attesting to.
Now, the robo-signers have morphed into the so-called robo-witnesses, defense attorneys claim.
"In short, the robo-signing has not gone away, it has simply moved into the courtroom," Ice said.
Prolific Witness
Under the law, witnesses called to testify about business records needed to meet certain requirements. For example, they need to have sufficient knowledge of their company's business operations and record keeping, said Bob Jarvis, a law professor at Nova Southeastern University.
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