What Are Affidavits in Foreclosures?

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Affidavits serve as formal documents wherein an individual affirms a series of facts. The person signing, known as the affiant, asserts personal knowledge of these facts. Typically, affidavits necessitate endorsement in the presence of a notary public. By doing so, the affiant is solemnly declaring, under the threat of perjury, the accuracy of all information presented in the document.

Many states mandate the inclusion of affidavits in foreclosure proceedings. These affidavits, in turn, obligate the mortgage servicer to verify the legitimacy of:

  1. Mortgage documents; and
  2. Foreclosure proceedings

Within the affidavit, it's important to affirm that the loan servicer or mortgage holder possesses the legal authority to initiate foreclosure. Furthermore, it must cite a valid cause for the foreclosure, often indicating the homeowner's default on mortgage payments.

How are affidavits used in summary judgments?

In a foreclosure in Cook County, mortgage servicers may petition the court for summary judgment, allowing the court to decide in their favor without a formal trial. This requires presenting unequivocal and undisputed factual evidence demonstrating that foreclosure is legally warranted. To support their case for foreclosure, the servicer or mortgage holder typically provides the court with:

  1. Affidavits
  2. Other legal documents indicating mortgage ownership
  3. Foreclosure affidavits containing information on the mortgage account's status, such as payment history, current outstanding amount, default initiation, and the extent of the mortgagee's arrears.

The borrower may lack a legal excuse or relevant facts to challenge the mortgage holder's affidavit. If the borrower fails to contest the foreclosure with a valid defense, the foreclosure case concludes, and the court grants summary judgment to the mortgage servicer. This enables the foreclosure sale to proceed, resulting in the sale of the property.

What do Affidavits have to do with Robo Signing?

The term "robo-signing" has been coined to depict the hasty signing of foreclosure affidavits, a process carried out by automatic "robo-signers" that do not thoroughly validate the accuracy of the statements within the affidavits. Given the substantial volume of mortgages processed by mortgage servicers, some individuals managing foreclosure documents in quick succession have faced accusations of engaging in robo-signing practices. Allegedly, this is done to expedite the foreclosure process and minimize potential damages, particularly in terms of loss mitigation.

Numerous mortgage servicers, including Bank of America, JPMorgan Chase, Wells Fargo, GMAC Mortgage, and Ally Financial, Inc., have been implicated in robo-signing scandals, with investigations conducted by several state attorneys general.

Homeowners have recourse if the mortgage servicer neglects to review the underlying documentation. They can contest the foreclosure affidavits signed by the servicer, arguing that these affidavits may be insufficient to substantiate the necessity of foreclosure. In certain states with foreclosure laws mandating the inclusion of supporting documentation in affidavits, failure to provide such documentation can impede or completely halt the foreclosure process.

Can you Challenge a Foreclosure Affidavit?

When a financial institution seeks summary judgment, the homeowner can contest the foreclosure affidavit by:

  1. Pointing out inappropriate robo-signing practices, as applicable
  2. Reporting any inaccuracies present in the information provided
  3. Challenging erroneous mortgage data and payment history outlined in the affidavits.

While foreclosure affidavits generally maintain accuracy, there are instances where they may contain incorrect information. This could include inaccuracies in payment history or the amount owed. For example, in cases of securitization, mortgage debt undergoes packaging and sale to investors, potentially leading to the loss of payment information through multiple transactions. Additionally, fees may have been incorrectly added to an account.

At The Law Center, we are a team of specialists that are passionate and up to date about the foreclosure process from start to finish and helping homeowners at the highest level. Our staff and attorneys approach each client and each property as a new challenge, one that requires thorough analysis, zealous representation, and thoughtful strategy. It’s your home, let The Law Center help you defend it.

Call us now and speak with a foreclosure expert on how you can make the foreclosure process work for you -- not against you. (312) 600-8815

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Disclaimer – The Law Center, LLC is not a debt collector and is not affiliated with your mortgage lender, service or any government entity. The attorney responsible for the content of this advertisement is IL Attorney B. Fard. Nothing on this website is to be construed as a guarantee or prediction of result. No recipient of content from this site, client, whether current or otherwise, should act or refrain from acting based on information at this site. Any and all information on this website is not intended to, nor does it, constitute or establish an attorney-client relationship.