Why Courts Are Taking a Closer Look at Affidavit Accuracy in Foreclosure Proceedings

Affidavits play a critical role in foreclosure litigation. They provide sworn support for default, payment history, note possession, servicing authority, notice compliance, and the right to foreclose for lenders, servicers, and trustees. When affidavits are accurate, they keep a case running smoothly. But when they are vague or inconsistent, they may give rise to borrower challenges.

Courts in North Carolina, South Carolina, and Tennessee look carefully at affidavits to ensure that they match the loan file, business records, and applicable state procedures. Find out how Crawford & von Keller can help you plan accordingly—call us at 803-790-2626 to reach our South Carolina office, 910-363-1637 to connect with our North Carolina team, or 615-807-0939 to reach our Tennessee team.

How Affidavits Function in South Carolina, North Carolina, and Tennessee Foreclosures

The role of an affidavit in foreclosure depends on the state and type of foreclosure proceeding.

South Carolina foreclosures are judicial. Court rules indicate that foreclosure actions are tried by the court and referred to a master. Affidavits of debt are used to support the requested judgment amount and other calculations.

In North Carolina, the power-of-sale foreclosure process includes a clerk hearing. Per state law, the clerk may consider affidavits and certified document copies when determining whether the statutory elements for foreclosure are met. These elements include valid debt, default, right to foreclose, proper notice, and the absence of certain foreclosure-prevention issues.

Tennessee primarily uses nonjudicial foreclosures, so affidavits are not used in the same front-end way as they are in South Carolina and North Carolina. Still, they may become relevant when a borrower seeks an injunction, files suit, or challenges authority. They may also be used when you, as a lender or servicer, move for summary judgment. Tennessee law requires supporting and opposing affidavits to be based on personal knowledge, include admissible facts, and show that the affiant is competent to testify.

Why Courts Are Scrutinizing Affidavits More Closely

Foreclosure affidavits may be signed by employees of loan servicers, not the original servicer or the party who actually handled the transactions in the loan’s history. This is not generally an issue, but it can become one if the affidavit does not explain the affiant’s role, the records reviewed, or the basis for their statements. In this scenario, courts and opposing counsel may question whether the signer can testify about the borrower’s default, the servicing history, or the plaintiff’s right to enforce the loan.

Elevated scrutiny can also bring to light prior foreclosure documentation problems courts have handled, such as robo-signing concerns and mass-produced affidavits. It does not necessarily matter if these issues are present in a specific case, as their history is enough to make courts be more wary of conclusory statements.

Best Practices

Lenders and servicers can protect themselves by treating affidavits as litigation documents, not routine forms. Before moving forward with foreclosure, counsel should confirm that the affidavit matches the note, deed of trust or mortgage, assignments, servicing records, and other numbers.

It’s also important to be clear about the affiant’s role. The affidavit must specify the records reviewed and avoid broad conclusions where more specific facts are needed. Close to filing, it’s recommended that you recalculate amounts due, as payments, escrow advances, and fees may change the balance.

Accurate affidavits protect your case, but they also preserve your credibility with the court, reduce avoidable objections, and may prevent post-sale challenges.

Contact Crawford & von Keller to Discuss Your Foreclosure Concerns

The team at Crawford & von Keller understands the importance of accurate affidavits that stand up to court scrutiny. Our focus on lender- and servicer-side representation allows us to anticipate challenges and prepare for them in advance. Schedule a time to talk now by calling us at 803-790-2626 in South Carolina, 910-363-1637 in North Carolina, or 615-807-0939 in Tennessee. You can also reach us online.