The Forgotten Oath

Anyone who has been a witness in court remembers the bailiff asking them to raise their right hand a repeat after him: “Do you swear to tell the whole truth and nothing but the truth, so help you God?”

There has been 6,000,000 foreclosures since the housing bubble burst. Another 3,000,000 is expected by the end of this year, 2011.

Foreclosure laws vary by state. Some states require a judicial process, meaning court action must be involved. Other states do not require court action, those states are called non-judicial states.

In a judicial state, the bank must file a complaint to start foreclosure and must personally serve you with a copy of the complaint and summons. After you have been served with a copy of the lawsuit, you will have a certain number of days (stated on the summons) to file an answer or other response – defend yourself in court.

The Complaint usually has an affidavit attached to it. An affidavit is a statement from someone who has knowledge of the facts of the case. An affidavit submitted in a foreclosure lawsuit will state specific information regarding your loan, i.e. the amount owed, late fees, etc., signed by the person who has the actual knowledge, and notarized by a notary public. When the person signing the affidavit signs before a notary public to sign it, the notary is required to ask the person for identification to ensure that he is indeed the person signing the affidavit. In addition, the notary will ask the person signing the affidavit to raise their right hand and take an oath, similar to an oath in a courtroom.

There have been numerous fraudulent affidavits filed in foreclosure cases in courtrooms across this country. The media and banks like to refer to this act as filing “flawed” documents or a “process that needs to be fixed”. In fact, in many cases where the fraudulent filing was brought to the attention of the court, the bank asked for a do over. And they got it.

Now, if you or I were to file a fraudulent document in court, we would be behind bars. When the banks do it, they get a do over. When I ask my friends on the golf course for a mulligan (a do over) after an errant tee shot, they say no. And our game doesn’t involve winning a house.

Why is this important?

One, it makes a mockery out of our judicial system. In essence, it creates a two party justice system: one for banks, and one for citizens.

Two, the affidavit is being used as evidence in a foreclosure lawsuit. The judge uses the documents in the case, sometimes rules on the documents alone, or will listen to arguments of counsel and homeowners who have the courage to defend themselves in court, and renders a decision. If the affidavit contains false information or is signed fraudulently, that creates a big problem. It could result in a wrongful foreclosure.

Don’t get me wrong. When a homeowner cannot make the mortgage payment, the bank is allowed to pursue its legal remedy and commence foreclosure. It is not too much to ask that the proceedings follow the law.

If you are unfamiliar with how the government and the banks have been playing with our home loans, you are in for a real surprise. A process known as securitization is utilized to put home loans together and sell on Wall Street. When this happens, the loans are suppose to be put into a trust, registered with the SEC, and then sold to investors. This process is also known as slicing and dicing. There are so many problems with securitizing home loans, for now, let’s just say that it creates an important question as to who really owns your loan.

So in the future, when the banks’ attorneys or employees file an affidavit in court, will they adhere to the unspoken words: Do you swear to tell the whole truth and nothing but the truth, so help you God?”