Appeals Court Says 'No Way' To BofA's F'closure Eviction Attempt; Crappy Affidavit Sinks Effort To Boot Homeowner; Another Lower Court Ruling Reversed

A defective affidavit filed by an officer ("Hiatt" - maybe a robosigner?) of loan servicer Bank of America in an action for ejectment targeting a recently-foreclosed borrower was the focus of another appeals court reversal of a lower court ruling adverse to homeowners.

After considered analysis of the facts of the case, and the state law applicable thereto, the Alabama Court of Civil Appeals ruled as follows:(1)

• In the case now before us, Hiatt's affidavit did not show that Bank of America was a participant in the servicing of the mortgage or in the foreclosure.
  
  It did not explain how Hiatt, in his capacity as an officer of, and attorney-in-fact for, Bank of America, would have acquired personal knowledge of the information he testified to in his affidavit.
  
  Moreover, none of the documents that accompanied his affidavit were sworn, certified, or otherwise authenticated.
  
  Consequently, based on the holding of the supreme court in Crawford, we hold that the testimony contained in Hiatt's affidavit and the documents that accompanied his affidavit were inadmissible and, therefore, that the trial court erred in entering a summary judgment in favor of the Secretary.
  
  Therefore, we reverse the summary judgment and remand the cause for further proceedings consistent with this opinion.

For the ruling, see Smith v. Secretary of Veterans Affairs, No. 2100194 (Ala. Civ. App. June 24, 2011).

(1) Before addressing the admissibility of the affidavit, the court addressed BofA's defense that, because the homeowner failed to file a motion to strike the affidavit in the trial court, he effectively waived his right to challenge it:

• In the case now before us, although Frank did not move to strike Hiatt's affidavit and the unsworn, uncertified, and unauthenticated documents that accompanied it, Frank's response to the summary-judgment motion called the trial court's attention to the inadmissibility of the affidavit and those documents by objecting to them and stating the grounds of the objection.
  
  Therefore, we find no merit in the Secretary's argument that Frank waived his objection to the Hiatt affidavit and the documents that accompanied it because he failed to move to strike them. See Ex parte Elba Gen. Hosp. & Nursing Home, Inc.