http://www.msfraud.org/law/lounge/Standing.html
Case dismissals for lack of standing to Foreclose
Updated 9/25/13
MSFraud Forum Crosslinks, Findings and Case citations add to Ohio Federal Court Case Discussions by William A. Roper Jr.
Federal Practice Manual for Legal Aid Attorneys
3.1 STANDING
The Supreme Court has made it clear that the burden of establishing standing rests on the plaintiff. At each stage of
the litigation—from the initial pleading stage, through summary judgment, and trial—the plaintiff must carry that
burden. Standing must exist on the date the complaint is filed and throughout the litigation. Moreover, standing
cannot be conferred by agreement and can be challenged at any time in the litigation, including on appeal, by the
defendants or, in some circumstances, by the court sua sponte. Finally, plaintiffs must demonstrate standing for
each claim and each request for relief. There is no “supplemental” standing: standing to assert one claim does not
create standing to assert claims arising from the same nucleus of operative facts.
FORECLOSURE DEFENSE
WHERE DO WE STAND ON STANDING?
Winter 2011
Standing versus Justiciability
“A party must have standing to file suit at its inception and may not remedy this defect by
subsequently obtaining standing.”
Venture Holdings & Acquisitions Grp.,LLC v. A.I.M. Funding Grp., LLC, 75 So. 3d 773, 776 (Fla. 4th DCA 2011).
_______________________________
Merit Decision: Court Smacks Freddie Mac in Home Foreclosure Case. Federal Home Loan Mortgage Corp. v. Schwartzwald.
For Andy Engel (Schwartzwald's attorney): As a practitioner focusing on foreclosure defense what is your thoughts (to be pro-active) for
those who lost their home under the “cure,” to file a 60(B)(5) motion and place the new owner, title company and mortgage company on
notice?
Andy Engel says:
November 2, 2012 at 9:53 am
If the foreclosing bank relied on an after-acquired interest in the note and mortgage to establish its right to enforce the agreements, then
I would certainly seek to vacate the judgment. But you need not proceed under Civ.R. 60(B) because the judgment is void. The
Schwartzwald decision states that standing has to exist at the time the case is filed, and if it doesn’t exist, the jurisdiction of the common
pleas court was not invoked. A court without jurisdiction cannot enter any judgment (except one dismissing the case for lack of
jurisdiction). A motion to vacate a void (as opposed to a voidable) judgment is not based on Civ. R. 60(B), it invokes the court’s inherent
power. Patton v. Diemer, 35 Ohio St. 3d 68 (1988).
Do NOT let this be a deterrent. Stand up for your rights.
More Courts Reject Eleventh-Hour Attempts To Avoid Foreclosure Based On An
Alleged Lack Of Standing
Two more Appellate Division panels have refused to allow defendant's in foreclosure lawsuits to raise standing as an eleventh-hour
defense. As we previously reported -- Changing Tide in Forclosure Litigation? Courts Taking Closer Look When Defendants Assert
Lack Of Standing At Last Minute -- there is now a clear trend against allowing defendants to stay silent in the face of a foreclosure
lawsuit only to appear at the last minute, usually on the eve of a sheriff's sale, and seek to vacate final judgment based on an
alleged lack of standing to foreclose. Two recent Appellate Division cases continue to bring this point home.
In IndyMac Bank FSB v. DeCastro, [enhanced version available to lexis.com subscribers], a residential borrower moved to vacate
final judgment and dismiss the complaint 15 months after it was entered, arguing that he was not served with the complaint. The
motion was denied. Defendant filed a second motion to vacate, arguing, for the first time, that the bank lacked standing to
foreclose because it was not assigned the mortgage until after the complaint was filed. This motion was denied as untimely and
defendant appealed. In an opinion, dated March 13, 2013, the Appellate Division affirmed. In its decision, among other things, the
Appellate Division rejected defendant's standing argument, noting: "[W]e have now made clear that lack of standing is not a
meritorious defense to a foreclosure complaint." Moreover, the Appellate Division held that defendant's standing argument was
meritless "particularly given defendant's unexcused, years-long delay in asserting that defense or any other claim." In arriving at
this decision, the Appellate Division relied on many of the cases discussed in our prior post.
Similarly, in Wells Fargo Bank, N.A. v. Lopez, [enhanced version available to lexis.com subscribers], a different Appellate Division
panel rejected another residential home owner's last-minute attempt to raise standing as a defense to the foreclosure complaint.
The facts in that case were a bit more egregious because the borrower contributed to the four-year delay between the entry of
default and the filing of his motion to vacate by filing numerous bankruptcy petitions and seeking a stay to attempt to short sell the
property. Nonetheless, the Appellate Division affirmed the trial court's denial of the motion to vacate holding, among other things,
that the lack of standing, even if true, was not a meritorious defense to a foreclosure complaint, particularly in the post-judgment
context. Again, the Appellate Division relied primarily on the cases included in our prior post.
View more from the Porzio Real Property Blog.
New cases
Focht v. Wells Fargo (Pro se reversed on standing) (Florida 9/13) I concur in this decision because existing precedent requires me to do so.
Presumably, our mandate requires the dismissal of this foreclosure action, which in turn will undo the foreclosure sale. Ms. Focht will
regain possession of her property and apparently continue her free use of the duplex while the lender continues to make advances to
cover the expenses typically paid from escrow. Our certified question of great public importance is dispositive of this appeal and
worthy of consideration by the supreme court.
Wright-Patt Credit Union v. Byington (Ohio 9/13) Accordingly, because appellee failed to present the court with
evidentiary quality material in support of its assertion that it was the current holder of the note and mortgage at
issue, a genuine issue of material fact remains regarding whether appellee has standing in this foreclosure action and
the lower court erred in granting appellee summary judgment. Given this conclusion, we need not address appellants’
argument that appellee failed to meet the conditions precedent before filing suit. The sole assignment of error is well-
taken.
On consideration whereof, the court finds that substantial justice has not been done the parties complaining and the
judgment of the Erie County Court of Common Pleas is reversed.
Bank of New York Mellon v. Shaffer (Ohio 7/13) Opinion and dissent address late filing, void vs. void, standing and
jurisdiction.
Since the trial court lacked subject-matter jurisdiction and its
default judgment was therefore void, Shaffer was not required to comply with the time requirements of Civ.R. 60(B)
in order to be entitled to an order vacating the judgment.
BAC Home Loan Servicing v. Mapp (Ohio 7/13) We therefore reverse the trial court's finding that "BAC's alleged lack
of standing does not constitute a meritorious defense" and remand the case to the trial court for a hearing to
determine BAC's standing to sue, and correspondingly whether the trial court had jurisdiction over the foreclosure
proceedings. On remand, the trial court must determine whether MERS had the authority to assign the mortgage
and/or the note as the nominee for Countrywide in light of the claim that Countrywide was no longer in existence
when the mortgage was assigned to BAC.
"a common pleas court cannot substitute a real party in interest for
another party if no party with standing has invoked its jurisdiction in the first instance."
California Cases
Caporale v. Saxon, Deutsche Bank, Morgan Stanley - Judge Weissbrodt
- Order Preliminary Injunction
- Daughter-in-law letter to judge
- Claims of Saxon
- Saxon Motion to Lift Stay
- Caporale Memo in Opposition to Motion to Lift Stay
- Docket
In Re: Vargas - MERS (relief from stay Denied) Judge Bufford (explains authenticity of documents)
Dimrock v. Emerald Properties (Opinion: unlawful detainer/quiet title)
SAXON MORTGAGE SERVICES, INC., et al., v. HILLERY (Order Granting Homeowner's Motion to Dismiss) Judge Chen)
Rickie Walker v. BAC, EMC Mortgage, Bear Stearns, Citibank, MERS (Full bankruptcy docs) (2010) Lack of Standing.
Florida Cases
Brevard County Mortgage Foreclosure Procedures
Focht v. Wells Fargo (Pro se reversed on standing) (Florida 9/13) I concur in this decision because existing precedent requires me to do so.
Presumably, our mandate requires the dismissal of this foreclosure action, which in turn will undo the foreclosure sale. Ms. Focht will
regain possession of her property and apparently continue her free use of the duplex while the lender continues to make advances to
cover the expenses typically paid from escrow. Our certified question of great public importance is dispositive of this appeal and
worthy of consideration by the supreme court.
SAVER (pro se) v. JP MORGAN CHASE BANK, NATIONAL ASSOCIATION AS ACQUIRER OF CERTAIN ASSETS AND
LIABILITIES OF WASHINGTON MUTUAL BANK FROM THE FEDERAL RECEIVER - Florida COA Reversed (5/15/13)
Here, J P Morgan’s affidavits were executed after it filed suit. Additionally, they did not state when JP Morgan became
the owner of the note nor did they indicate that JP Morgan was the owner of the note before it filed suit. Thus, JP
Morgan failed to submit evidence that it held the mortgage at the time it filed suit, and the trial court erred in
granting summary judgment in its favor.
CROMARTY v. WELLS FARGO (REVERSED)(Fla. 4-13) The borrowers argue that the note’s blank endorsement was undated and the
bank’s evidence was insufficient to establish that it held the note and was entitled to enforce the note at the time it filed suit.
We agree with the borrowers’ argument as to standing and reverse.
RIGBY v. WELLS FARGO BANK (4/12) Original complaint only had a mortgage in favor of Option One attached. Later, Wells Fargo
presented an assignment of mortgage and an undated original note with special endorsement to Wells Fargo and the trial court entered
summary judgment in favor of Wells Fargo. Fourth DCA opined that Wells Fargo has to have standing at the inception of the lawsuit.
Reversed and remanded.
Duke V. HSBC (11/11)"The Dukes argued that at the time the foreclosure complaint was filed, the mortgage was held by First NLC, not
appellee, HSBC. In its complaint, HSBC alleged it owned and held the note and mortgage at the time the complaint was filed. “W h e n
exhibits are attached to a complaint, the contents of the exhibits control over the allegations of the
complaint.” BAC Funding Consortium Inc. v. Jean-Jacques, 28 So. 3d 936, 938 (Fla. 2d DCA 2010). Here, HSBC alleged in its complaint that
it “now owns and holds the Note and Mortgage,” but an assignment was
not attached to the complaint, supporting HSBC’s position. Instead, the mortgage attached to the complaint showed First NLC as the lender,
creating discrepancies between the complaint and the attached exhibit.
Thus, at the time of the argument on the summary judgment motion, genuine issues of material fact existed as to whether HSBC was the
proper owner and holder of the note and mortgage where First NLC was
named on the mortgage and evidence of an assignment was not included.
We therefore reverse the trial court’s order granting summary judgment because genuine issues of material fact remain in dispute regarding
the owner and holder of the note and mortgage at the time the
complaint was filed. Reversed."
Feltus v. U.S. Bank (10/11) (Lost Note) We reverse because material issues of fact as to which entity holding the
promissory note executed by Feltus existed at the time the trial court entered summary judgment.
- U.S. Bank's reply to Feltus's affirmative defenses asserting that it was now in possession of the original note, which
it attached to the reply. But the note attached to the complaint showed the lender to be Countrywide Bank, N.A.
Khan v. Bank of America: (4/11) Because the exhibit to Bank of America’s amended complaint conflicts with its
allegations concerning standing, Bank of America did not establish that it had standing to foreclose the mortgage as a
matter of law. As a result, the trial court acted prematurely in entering the final summary judgment of foreclosure in
favor of Bank of America. We, therefore, reverse the final summary judgment of foreclosure and remand for further
proceedings.
Bank of America v. Nebraska Investments (1/28/11) This case is DISMISSED without prejudice. No other
pleadings by the plaintiff will be permitted in this case, other than a request for rehearing if appropriate. It is
confiscatory of the Court's time to have to address this matter.
BAC Funding v. Jacques, U.S. Bank (2/12) U.S. Bank filed a written response to BAC's motion to dismiss. Attached
as Exhibit A to this response was an "Assignment of Mortgage." However, the space for the name of the assignee on
this "assignment" was blank, and the "assignment" was neither signed nor notarized. Further, U.S. Bank did not
attach or file any document that would authenticate this "assignment" or otherwise render it admissible into
evidence. Accordingly, because U.S. Bank failed to establish its status as legal
owner and holder of the note and mortgage, the trial court acted prematurely in entering
final summary judgment of foreclosure in favor of U.S. Bank. We therefore reverse the
final summary judgment of foreclosure and remand for further proceedings.
Deutsche Bank v. Lippi (2/2010) (Defendant's Amended Motion to Dismiss the Pleadings of Plaintiff is GRANTED
with prejudice because over a two year period Plaintiff failed to allege or provide documents demonstrating its right
to bring this action. Independently, Defendant's Amended Motion to Dismiss the Pleadings of Plaintiff is GRANTED as
a sanction under the dictates of the Ham decision and its progeny.
DLJ MORTGAGE CAPITAL, INC., NEW CENTURY MORTGAGE CORPORATION, SELECT PORTFOLIO
SERVICING, INC. and FLORIDA DEFAULT LAW GROUP v. Thornberry
- ORDER REGARDING PLAINTIFF'S MOTION TO RE-ESTABLISH NOTE
- DLJ Mortgage's mortgage foreclosure Complaint
- DISMISSED WITH PREJUDICE
(Update from Thornberry: 10/17/10 - The bank continued to come back and the 5th judge in the matter REVERSED the Dismissed with
Prejudice that I won. I am still fighting this injustice!!!! The first judge DWP without a hearing for lack of standing - no note due to FL STAT
71.011. but bank got latest judge to overturn BECAUSE the DWP was done sua sponte, w/o a hearing but quotes no FL STAT or code that
states a hearing is mandatory when dealing with dismissal due to lack of SMJ.)
Deutsche Bank's Summary Judgment Denied
IndyMac v. Rogers (Rogers Motion to Dismiss GRANTED), March 2010, PINELLAS COUNTY
Bac Funding Consortium v. Jacques, U.S. Bank, C-Bass (U.S. Bank failed to establish its status as legal owner
and holder of the note and mortgage. App. Court reversed SJ)
- Bac Initial Brief in Jacques
VERIZZO v. Bank of New York MERS (Summary Judgment REVERSED & REMANDED, late notice, flawed chain of assignments)
Verizzo v. Bank of New York (Order of Dismissal against BONY) ("based on the late service and filing of the summary judgment
evidence and the existence of a genuine issue of material fact, we reverse the final summary judgment and remand for further
proceedings.")
Wells Fargo v. Chesney [While "non-negotiable" instruments may also be assigned, there is no assignment attached to the
Complaint. The Note and Mortgage attached to the Compliant are made in favor of Washington Mutual, not the current Plaintiff, Wells
Fargo.]
Wells Fargo v. Cirigliano (3/10) (No evidence to show a chain of title of how the note got transferred to Wells Fargo.)
U.S. Bank v. Harpster (3/10) (Notary fraud, assignment fraud, fraud upon the court, dismissed with prejudice) Judge Tepper
GMAC v. Visicaro (4/10) (Hearing, judge sets aside his previous grant of summary judgment) Judge Rondolino
Riggs v. Aurora Loan Servicing (4/21/2010) (Court of Appeals the endorsement in blank is unsigned and unauthenticated, creating a
genuine issue of material fact as to whether Aurora is the lawful owner and holder of the note and/or mortgage. As in BAC Funding
Consortium, Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So. 3d 936 (Fla. 2d DCA 2010), there are n o supporting affidavits or deposition testimony in
the record to establish that Aurora validly owns and holds the note and mortgage, no evidence of an assignment to Aurora, no proof of purchase of
the debt nor any other evidence of an effective transfer. Thus, we reverse the summary judgment and remand for further proceedings.
U.S. Bank v. McLeod (May 7, 2010 - Judge Traynor) (Order Vacated - Dismissed w/prejudice, possible sanctions)
HSBC Bank v. Eslava - (Transcript on Hearing To Show Cause on May 7, 2010 - Judge Jennifer Bailey) (The note,
which was canceled by this court pursuant to a final judgment is null and void. Mr. Eslava is relieved of the debt.
The title shall be conveyed back to Mr. Eslava by the bank -- by the trust, as the legal liability for the note no longer
exists.
BAC v. Box (6/3/2010) (Arthur B. Federman - Bankruptcy Judge) (Trustee opposed BAC's request for relief from
automatic stay. BAC's motion is DENIED.)
U.S. Bank v. Troche (May/2010) (Order setting aside judgment and sale.)
HSBC v Ruscalleda (June 9 2010) (Based on the unique circumstances of this case, we conclude that the trial court
abused its discretion by denying the motion to continue the final summary judgment hearing and by failing to grant
the motion to transfer the foreclosure action to the division where a separate foreclosure action was pending in
which another bank was simultaneously seeking to foreclose the same mortgage.
Aurora, MERS v. Da Costa (4/2010) ("[T]he plaintiffs lack of standing at the inception of the case is not a defect that may be cured by the
acquisition of standing after the case is filed."
There is no evidence of record that establishes that MERS was authorized to assign anything to Plaintiff, and therefore, the assignment was invalid.
Even if the assignment were valid, it was not executed until after the complaint was filed. Therefore, Plaintiff s standing at the inception of the case
was based entirely on the complaint and the exhibits attached thereto. It appears on the face of those exhibits that an entity other than Plaintiff has
standing, and those exhibits control over contrary allegations contained in either version of the complaint. Plaintiff lacks standing now based on the
substantive deficiencies with an assignment from MERS. Plaintiff lacked standing at the inception of the case based on those substantive
deficiencies and the timing of the execution of the assignment. Absent standing, there is no justiciable controversy between the parties, and this case
must be dismissed.)
IndyMac v. Keyser (June 2010) (Judgment and sale set aside.)
M&T BANK v. Smith - A CASE OF SPECIAL INTEREST TO FLORIDA FORECLOSURE DEFENSE LAWYERS. BY LYNN
E. SZYMONIAK
(June 2010) [t]he Court finds the plaintiff lacks standing and is not a proper party to the suit. The Court has been misled by the Plaintiff from
the beginning. In its initial Complaint, the Plaintiff alleged it owned the note that was lost. Then Plaintiff alleged that not only was the lost
Note found, but the Plaintiff actually owned the Note by Assignment. After both of these Complaints were dismissed, Plaintiff then alleged
that Wells Fargo owned the Note, while the Plaintiff was merely a servicer of the loan. Moreover, the Assignment on which Plaintiff relied in
its First Amended Complaint postdates the filing of this foreclosure action and is inconsistent with the Mortgage, Note, stamps allegedly
affixed to the Note, and the Allonge.
BAC/Countrywide v. Stentz - (12/10) (6th Circuit, Pasco County, Florida) Motion to Dismiss Granted with a redo option. "A thief
who steals a check payable to bearer becomes the holder of the check… but does not become the owner of it.” - Judge Tepper
Lindsey v. Wells Fargo (Wetherell J.2009) The Assignment of Mortgage did not purport to transfer the note, and the original note filed
with the court did not include a special endorsement to Wells Fargo or a blank endorsement.
New York / New Jersey Cases
Capacity and/or Standing to Sue; and REMICS require ORIGINALS
Wells Fargo v. Erobobo **(NY 4/13) (Instructional) There is a difference between the capacity to sue which
gives the right to come into court, and possession of a cause of action which gives the right to relief. Incapacity to sue is
not the same as insufficiency of facts to sue upon.
In Article II, section 2.01 Conveyance of Mortgage Loans, the PSA requires that the Depositor deliver and deposit with the
Trustee the original note, the original mortgage and an original assignment.
U.S. Natl. Assn. v Said (Supreme Court, Queens County)(1-13)
Case Dismissed over Broken Chain of Assignments
In opposition, Said contends that plaintiff lacks standing and has no legal capacity to sue because the
assignment in which plaintiff was assigned the first mortgage was invalid since there was an improper
chain of assignments prior to the assignment involving plaintiff. For the reasons set forth below,
plaintiff's motion for summary judgment pursuant to CPLR §3212 is denied in its entirety; and Said's
cross-motion for summary judgment dismissing plaintiff's complaint pursuant to CPLR §3212 is granted
in its entirety.
New York Mtge. Trust v Dasdemir (11/12) (New York/Schack)(Nathan Reese's assignment of the
subject mortgage and note to NYMT, for MERS, as nominee for NYMC, in the instant foreclosure action
is without legal authority. Therefore, plaintiff NYMT could not be the holder of the subject mortgage and
note when the action commenced. Thus, plaintiff NYMT lacked standing to commence the instant
foreclosure action.
HSBC v. PUCCINI 6/12 (New York)
ORDERED that this motion by defendant Deutsche Bank National Trust Company, as Trustee for
Fremont Home Loan Series 2006-3 (Deutsche Bank) for summaryjudgment on its first counterclaim
against plaintiff, declaring that Deutsche Bank is the lawful owner and holder of a valid first mortgage
against the subject premises, declaring that the credit line mortgage was paid in full and is discharged
and satisfied of record, and declaring that plaintiff and all persons claiming by, through and under it be
forever barred from all claims to an estate or interest in the subject premises, and granting defendant
Deutsche Bank summary judgment dismissing the complaint as against it and cancelling the notice of
pendency filed by plaintiff is denied.
Deutsche Bank v. Cuesta (6/12)(New York)
ORDERED that this motion by defendant Deutsche Bank National Trust Company, as Trustee for
Fremont Home Loan Series 2006-3 (Deutsche Bank) for summary judgment on its first counterclaim
against plaintiff, declaring that Deutsche Bank is the lawful owner and holder of a valid first mortgage
against the subject premises, declaring that the credit line mortgage was paid in full and is discharged
Ohio Cases
Interim Findings of Effects of Ohio Standing Rulings
Ohio Foreclosure Help
Ohio Certificate of Readiness
Ohio Foreclosure Process
*Certificate of Readiness for Foreclosure Actions Filed
UPDATE: OHIO FORECLOSURE CASES: LENDERS BEWARE*
IT'S UNANIMOUS! OHIO SUPREME COURT SETTLES CONFLICT OF FORECLOSURE OPINIONS
in:SCHWARTZWALD v. FREDDIE MAC
Federal Home Loan commenced this foreclosure action before it obtained an assignment of the promissory note and mortgage securing
the Schwartzwalds’ loan. The Schwartzwalds maintained that Federal Home Loan lacked standing to sue. The trial court granted
summary judgment in favor of Federal Home Loan and entered a decree of foreclosure. The appellate court affirmed, holding that
Federal Home Loan had remedied its lack of standing when it obtained an assignment from the real party in interest.
Standing is required to invoke the jurisdiction of the common pleas court, and therefore it is determined as of the filing of the
complaint. Thus, receiving an assignment of a promissory note and mortgage from the real party in interest subsequent to the filing of
an action but prior to the entry of judgment does not cure a lack of standing to file a foreclosure action. {¶ 4} Accordingly, the
judgment of the court of appeals is reversed, and the cause is dismissed.
A few cases Reversed based on Schwartzwald:
For about two decades, the mortgage industry’s foreclosure scams have destroyed lives, stripped wealth; turned county land and
court records into crime scenes, and decimated parts of Ohio. Ohio courts have surveyed the damage, and appear to be cleaning
up the massive frauds upon its Honorable Courts. Many homeowners and lawyers are going back in to court and filing Motions
To Vacate to have their former foreclosure case dismissed. Here are the results of some of those cases:
Deutsche Bank v Slayton: Slayton's Motion to Vacate that was filed on the same day the Ohio Supreme Court released its
Schwartzwald decision.
Wells Fargo v. Borrows
“Once a court has determined that a default on an obligation secured by a mortgage has occurred, it MUST then consider the
equities of the situation in order to decide if foreclosure is appropriate.” Wells Fargo was required to demonstrate that it had
standing to invoke the jurisdiction at the time the complaint was filed, and it failed to do so in the complaint and the documents
attached thereto.
Freddie Mac v. Rufo To the extent this court’s prior holdings in Cart, supra; Yeager, supra; Behrens, supra; and Shaffer, supra,
are inconsistent with the Supreme Court’s holding in Schwartzwald that standing is jurisdictional, we overrule our holdings.
Opinion also cites Pratts: "When the trial court lacks subject matter jurisdiction, its final judgment is VOID."
Nationstar v. Van Cott Although not a party to the contract, Nationstar filed a foreclosure complaint against Appellants.
Bank of America v. Kutchta IT WAS AN ABUSE OF DISCRETION FOR THE TRIAL COURT TO DENY APPELLANTS’
60(B) MOTION TO VACATE WITHOUT HOLDING A HEARING.
We reverse and remand the case so that the trial court may apply Fed. Home Loan Mtge. Corp. v. Schwartzwald
Wisconsin:
Aurora v. Carlsen: We conclude that the circuit court’s finding that Aurora was the holder of the note, a finding essential to the
judgment, is not supported by admissible evidence. We therefore reverse the judgment.
Conner lacked the personal knowledge needed to authenticate Exhibit D. See WIS. STAT. § 909.01 (documents must be
authenticated to be admissible, and this requirement is satisfied “by evidence sufficient to support a finding that the matter in question
is what its proponent claims”).