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Do Expert Declarations Help?

livinglies.wordpress.com | March 6, 2019

The bottom line is that facts --- or absence of required facts --- is what persuades the judge. The value of good investigation and case analysis lies not in the opinion of the writer of the report but in the usefulness of the facts that are revealed or, more importantly in foreclosure cases, the usefulness of revealing facts that should be present but are not.

A good analysis, like the one we do and the ones done by Bill Paatalo and Dan Edstrom, finds out what should be true and then shows how at least some elements are missing. 100% of the cases in which the homeowner won a judgment or a good (and confidential) settlement or "modification" have one thing in common: one or more things were missing from the case brought by the adversary seeking foreclosure. Those missing "things" posed a threat not only to winning the case but more importantly a threat to a securitization scheme which is based upon presumptions of facs that are contrary to reality.

The truth is that an expert declaration does very little in practice. That is why, despite my obvious credentials, very few people ask me for an expert written declaration. Expert opinion testimony does little more.

But an expert reporting on actual facts does give you some traction, if it is presented as part of a persuasive argument. As for forgeries etc. you need an expert that can testify and show the court how the signature is not consistent with any known signature of the party who supposedly signed it. Unless the court is convinced, it will fall back on the bias that if a bank says it, it's true.

So first you need facts and then you need to have those facts sewn into the fabric of a defense narrative. That is what we do. We do not have any magic bullets though and while we know our work has significantly improved traction in court it does not guarantee a satisfactory result.

All the cases that have resulted in either a judgment for the homeowner or a satisfactory settlement for the homeowner, including the cases I have won directly as lead counsel or as consultant were concluded because gaps were revealed in the proof of the adversary seeking foreclosure.

The common error by homeowners is to allege something that you can't prove. We advise clients, subject to the opinion of their local counsel, to stay away from making allegations and stick with denials of facts that are asserted or implied by the party seeking foreclosure.

The expert report should provide you with a roadmap not what seems to be a magic bullet. It guides the pleadings, discovery, motions, cross examination and closing argument.

Experts come in many different varieties or flavors. There is no such thing as an expert who does not convince the judge to recognize him or her as an expert. The only effective expert is one who could either convince the judge directly of an essential point or who can help you convince the judge. If the expert is not clear and convincing, they should not be used as a witness and possibly should not be used as reference point for the roadmap of the defense narrative. In general, if you don't understand what the expert is talking about, neither will a judge.

  1. Some experts have published recognized treatises on real property law, contracts, or securities practices and laws.
  2. Some experts come with academic credentials, which is important for credibility, but not necessarily entirely persuasive.
  3. Some experts have experience in investment banking, which is helpful to assess the context of the deals that are referenced or assumed. Such experts can explain the context of irregularities revealed by the homeowner.
  4. Some experts have neither academic credentials nor experience with investment banking, but they do have experience as an auditor who has reviewed hundreds of cases.
  5. Some experts have practiced law or are involved with delivery of legal services related in some way to collection of mortgage debt and foreclosures.
  6. Some experts have all or some combination of the above.

Everyone else is a "servicer" who will tell you what you want to hear but tell you nothing about how to achieve a successful result defending the property from foreclosure. Their reports are worse than useless. They lead homeowner and their attorneys into making allegations that can't be proven without access to the records of not only their adversary but third parties as well --- access that might well be restricted by the court.

 

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"CFLA was founded by the Nation's Leading Foreclosure Defense Attorneys back in 2007 to serve the Foreclosure Defense Industry and fight pervasive Bank Fraud. Since opening our virtual doors, CFLA has rapidly expanded to become the premier online legal destination for small businesses and consumers. But as the company continues to grow, we're careful to hold true to our original vision. For us, putting the law within reach of millions of people is more than just a novel idea–it's the founding principle, just ask Andrew P. Lehman, J.D.. With convenient locations in Houston and Los Angeles, you can contact Our National Account Specialist and General Manager / Member Damion W. Emholtz at 888-758-CFLA (2352) for a free Mortgage Fraud Analysis or to obtain samples of work product, including cutting edge Bloomberg Securitization Audits, Litigation Support, Quiet Title Packages, and for more information about our Nationally Accredited and U.S. Department of Education Approved "Mortgage Securitization Analyst Training Certification" Classes (3 days) 24 hours for approved CLE & MCLE Credit (Now Available Online)".

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