Many of the witnesses being called in foreclosure trials have no idea how documents including notes and default notices were created. The foreclosure defense lawyers assert that violates court rules.
Ice claims judges are ruling against homeowners after hearing from custodians who don't meet the minimum criteria. He points to a deposition he took in 2011 in which Marcos Flores, a witness for OneWest Bank, said he didn't know who prepared a default notice that Ice's client received before the foreclosure suit.
The notice informed borrowers who are three months behind on their mortgage payments how much they need to pay to bring their loan up to date and avoid foreclosure.
"To be honest with you, I don't know," Flores said when asked who prepared the notice. "I think it's somebody in our foreclosure department, I believe."
He also had a hard time figuring out who sent the notice to Ice's client, Enrique Fabre.
"Typically, the sending of the letter I believe it occurs in our Kalamazoo office," he said during the deposition.
During trial, Flores said "he had the responsibility of testifying" and "had testified over 200 times in the previous 11 months."
Ice lost the trial and appealed to the Third District Court of Appeal, where the case is pending.
"Can these people, who are not qualified as record custodians, come in and read their records to the judge?" Ice asked. "Because that's what they are doing."
Jarvis said he often hears complaints that record custodians try to authenticate business records "that are in fact not very good" in foreclosure trials.