Do Expert Declarations Help?

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.

For our team at Lendinglies.com, our building blocks are chronologically as follows:

  1. The  REGISTRATION STATEMENT also known as the Client Interview Form in which we get basic information about you, your status and an indication of what service you think you need. CLICK HERE FOR REGISTRATION FORM.
  2. The TERA report which pulls the most current title report and analyzes the documents in that sequence for consistency and apparent authority for execution.
  3. The PDR CONSULT in which we review the TERA and then review certain documents that are not in the recorded chain of title and provide a 30 minute recorded Consult, a copy of which audio file is usually sent to us by our conference bridge, Freeconfernece.com and the forwarded to you for review or transcription.
  4. The CASE ANALYSIS which we review and analyze all relevant documents from the recorded chain of title and all other notices  and court documents provided to us and render a written report on our findings, our suggestions as to strategies and tactics, and suggestions on the next steps, subject to review and advice from local counsel.
  5. DRAFTING of statutory requests, lawsuits, pleadings, discovery and motions as requested by the homeowner or counsel for the homeowner.
  6. PREPARATION of the homeowner or counsel for the homeowner for hearings in recorded CONSULTS.
ONLY A COURT ORDER ISSUED BY A STATE OR FEDERAL COURT CAN STOP A FORECLOSURE SALE. IN CALIFORNIA THIS USUALLY DONE BY PETITION FOR TRO OR BY FILING A PETITION FOR BANKRUPTCY (if you qualify). CONSULT WITH LOCAL COUNSEL ON ALL MATTERS.
Failure to challenge the foreclosure in a court of competent jurisdiction will ordinarily result in a sale of your property.
None of our work should be ordered, used or relied upon without consulting with local counsel on applicable statutes, common law, the rules of court, and local rules and practices. 
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.

One Response

  1. How much weight do “Requests for Admissions” carry ? How do you get a judge to enforce if other party refuses to answer/comply?

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