Evidence and Forensic Reports

Posted on February 12, 2018 by Neil Garfield
Every once in a while it is helpful for the consumer to realize that a non lawyer giving advice or opinions about legal matters is like going to a nail salon for a medical opinion, or worse, treatment.
There is a simple test for hiring a  purported forensic investigator: Are they in close touch with attorneys who understand the law and how to apply the law, particularly the laws and rules of Evidence? If not, steer clear of them as they will lead you down a rabbit hole.
Let us help you plan your narrative and strategy: 202-838-6345. Ask for a Consult.
Register now for Neil Garfield’s Mastering Discovery and Evidence in Foreclosure Defense webinar.
Get a Consult and TEAR (Title & Encumbrances Analysis and & Report) 202-838-6345. The TEAR replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).
https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments. It’s better than calling!
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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At our upcoming webinar this Friday, 2/16 at 1PM, we explore not only discovery and the actual rules of evidence, but also what constitutes facts that could be admitted into evidence — and cross examination or trial objections that prevent or remove information from being considered as evidence proving the truth of the matter being asserted.

Some of those facts that could be used as evidence or “anti-evidence” (information that removes the foundation or credibility for evidence admitted) come from the court filings but many of them come from forensic investigators whose task is to report on facts that tend to prove gaps in the narrative of the foreclosing party. At the Webinar will be two forensic investigators whose work I support because they understand the difference between facts and the law.

It is challenging for forensic investigators to refrain from  giving opinions on legal matters. But in order for their report to be taken seriously and in order for the conclusions to be persuasive, forensic investigators need to refrain from expressing conclusions of law. If not, they will be ripped to shreds on the witness stand where their credibility will sink to zero. Keep in mind that the report is not evidence nor will it ever be admitted into evidence without authentication and foundation from a live witness (the author).

It is interesting that I frequently come under attack from non lawyers who are constantly trying to steer people to forensic investigative reports that apparently ignore the standards for issuing such reports — because they pretend to be knowledgeable about the law and they offer legal advice and commentary which is the unauthorized practice of law.

Their reports are inevitably half baked and favor the banks by discounting the best defenses and offensive plays for a homeowner in favor of strategies that will almost certainly fail. Which in turn leads to the question: Why are non lawyers polluting the discussion with pro-bank obfuscation?

Even more interesting is that bank lawyers who have published articles about rescission and foreclosure defenses assume that rescission and foreclosure defenses based upon standing and such are valid. Indeed even the most biased courts recognize that standing is the root of their jurisdiction. Without standing the court cannot do anything other than dismissing the vacating the foreclosure complaint or sale. And winning on standing is far from simply delaying the inevitable.

“Mortgage examinations” in lieu of getting advice from a licensed attorney is legal suicide. But there are some entrepreneurs selling exactly that. Slick talking is not replacement for 3 years of law school, internship, and experience in the practice of law. So when I get something like this it worries me that anyone might read or believe it:

What’s wrong with foreclosure pretense defense attorneys all over Florida?  Why to they hang their hats on standing issues that serve only to delay the inevitable, predictable, and proper loss of the borrower’s home to justified foreclosure?
If all those lawyers who “get it” (meaning get the scheme of bilking clients for the privilege of losing their house for them) were to get mortgage examinations done for their clients and thereby find numerous causes of action underlying the loan transaction, then they would have something worthwhile to bring to the court instead of dilatory standing issues.
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The question is basically a cynical dud advanced by the banks. Foreclosure defense lawyers are not pretending anything. They are doing the best they can with what they are getting paid. Standing is not just important in terms defeating the current foreclosure action. It is also important in preventing future ones, and important for collateral damage cases based in wrongful foreclosure, interference in business relations, emotional distress and potentially punitive damages.
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As thousands of homeowners can attest, when they won on standing and the servicer and so-called mortgagee or beneficiary has painted themselves into a corner, the scales have tipped very much in favor of the homeowner. The banks do not have a ready option to submit different paperwork and pursue the second foreclosure — although it has been done. The only reason why successor foreclosures are successful is default. Homeowners, exhausted by the first round simply give up and walk away or settle for cash for keys or modification.
Your money is much better spent on licensed attorneys rather than unlicensed, uneducated, untrained lay people whose only exposure consists of presenting false challenges to real lawyers — except where those investigators are working at the direction of or in support of some lawyer. Their reports are no substitute for a lawyer who understands and uses objections and the art of cross examination to bring the factual findings to life.
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Many lay “entrepreneurs” have attempted to lure me into a “debate” so that they can raise themselves on the radar to put out more useless reports. Every once in a while it is helpful for the consumer to realize that a non lawyer giving advice or opinions about legal matters is like going to a nail salon for a medical opinion, or worse, treatment.

 

 

Filed under: burden of persuasion, BURDEN OF PROOF, CORRUPTION, discovery, evidence, expert witness, foreclosure, forensic investigation, legal standing, Mortgage, originator, Pleading |

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2 Responses

  1. legisman, on May 5, 2018 at 6:02 am said:

    Mr. Garfield, it is you who relies on forensic reports from the likes of Paatalo and Macklin, who both lost their homes. The courts have held these securitization, TEAR, COTA audits, or whatever else you’re calling them these days, that you have been selling to unsuspecting homeowners are “empty gimmickry” and the auditors “charlatans.”

    So, why do you condemn anyone posting the fact that most so-called foreclosure defense attorneys have never won a case, using the tripe aforementioned, despite their lies to the contrary.

  2. Rhody, on February 12, 2018 at 3:30 pm said:

    How do we ask the court to send the so called original promissory note endorsed in blank for forensic examination?

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