The first thing you need to know is that the banks will never bring their own expert to contradict your expert.
The second thing you need to know is that the use of an expert is complicated if you really want to achieve victory.
People often request now that I provide expert testimony. The main reason they ask is that they think that if I say under oath that securitization is a scam, the court will then rule against the foreclosure mill pursuing the forced sale of their homestead. My consultation and even testimony can be helpful in achieving a favorable result (no guarantees).
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Nobody should automatically assume victory because expert testimony reveals defects in the prima facie case against the homeowner. It’s more complicated than that.
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An expert must be able to demonstrate specific superior knowledge outside of the purview of the normal lay people as to (a) this specific case (b) applicable rules, regulations, customs and practices in the industry (c) what work was done in this case (d) what facts were revealed and (e) the significance of those facts. In addition the expert must be able to defend on cross examinations the conclusions reached and the quality of the work performed in order to reach that conclusion.
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A general affidavit about the industry is worthless. It must state specifically the factual conclusions about the case at bar or it will be either rejected as evidence or simply ignored. And if the presentation fails to show the judge how those factual conclusions were reached it will also be ignored.
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So here is how I work:
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Without doing some cursory review of title and other documents it is difficult for me to be precise. But in general here is how it breaks out:
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Expert Witness Report: $1,500
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Expert witness testimony: $650 per hour (note in depositions the other side pays for prep time and time spent at deposition)
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Assistance with discovery: $650 per hour, usually less than $3 hours.
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Reviewing and editing motions, pleadings or declarations: $650 per hour.
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After the case analysis is complete, we would have a CONSULT which is included in the Case Analysis. During that conversation you and your attorney would make a decision if (a) you actually needed or wanted an expert witness and (b) the specific scope of expert opinion and expert facts that are needed. It is possible at this point in the process that your attorney might decide that while my guidance would be helpful, he or she would prefer to use me as a consultant. This often happens.
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About expert witness testimony:
It tends to be very helpful if it reveals facts that relate to basic elements of a foreclosure case. It is somewhat helpful as to opinions and conclusions reached by the expert. My expertise is based upon my experience, training, education and personal use or direction of securitization business plans. I am an expert in securitization of debt, but my testimony will most likely be that securitization of debt never occurred nor was it ever intended to occur. This is sometimes referred to as “securitization fail.” However it cannot be said that something failed if it was never attempted.
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The securitization that did happen relates to intangible property that is created when information is aggregated and the issuer of a security takes one position about the data and the buyer of the security takes another position. Value is exchanged based upon the mutual promises contained in the contract (i.e. the security).
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For example, investors are essentially betting that they will receive scheduled payments from an investment bank when they purchase “certificates.” But they are not buying any debt, note, mortgage or right to enforce any payment from any residential homeowner. The certificate contains formulas for payment that are dependent upon the sole discretion of the issuing investment bank who is doing business under the name of a nonexistent trust. Thus in effect investors are purchasing future performance of the investment bank based upon data about loans not ownership of the loans.
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All of that is interesting and frequently leads to frustration and anger when one realizes that the payment of money to the homeowner was labeled as a loan but there was no counterparty to the “loan.” At the end of the securitization cycle there simply is no person or company that owns any homeowner obligation arising from the origination of the transaction. Instead, the homeowner was drafted into the securitization process by issuing the initial documents — the note and mortgage — without which the securitization cycle would never have begun and the homeowner transaction would not have occurred (nor would the sale of certificates to investors).
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The banks created a strategy that is entirely dependent upon getting the homeowners, their lawyers, the courts and regulators to presume that the loan was sold to investors despite the absence of any fact pattern that would provide a legal foundation for such a claim. They adopted that strategy because current law, reflecting centuries of development, requires that in the event of physical forfeiture of property, the claimant must have paid value for the claim that is supposedly secured by a mortgage.
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Since all of their claimants are merely designess or nominees, that is impossible. And since one of the purposes of securitization was to eliminate the debt account and therefore the role of creditor, the banks fabricate documents to make it appear as though the loan was sold into the secondary market and then securitized in sales to investors.
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The banks never show proof of payment by the named claimant or anyone in the chain leading up to that claimant. This is because no such payment occurred. Because the loan was never sold and payments received were not credited to any loan account or allocated to ownership of such an account, the investment banks were able to freely issue and trade securities whose value is derived from information about the transactions with homeowners without any credits or debits to the nonexistent debt account.
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There are several types of experts who can assist in revealing the fatal absence of a creditor in the foreclosure claim. What you will most likely find is that the expert’s report is far more likely to have an impact when the homeowner seeks to compel discovery rather than at trial. The failure to respond to basic questions about the status and ownership of the debt is generally fatal to the case pursued by foreclosure mills.
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To be effective an expert must demonstrate superior knowledge about facts that are in dispute in the case at bar. Unless the judge is convinced that the expert knows something that the court does not understand, without help from an expert, the expert testimony will either be barred or ignored. Most often it is ignored if not presented properly. The expert has two jobs: presentation and persuasion. Some people would argue with that statement but I am certain it is true. The expert must be persuasive without appearing as an advocate with a stake in the outcome.
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The ONLY way that happens is if the expert can report on what analysis was performed, what he found and how that fits within industry practices and rules. Since the expert is going to be testifying about the absence of evidence, the presentation must persuasively produce an end result in which the absence of evidence is essentially evidence of absence — raising the inference or presumption that the claimant has never paid for the underlying obligation, and that therefore the claimant suffered no injury.
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But beyond that it is helpful to explain the full impact of securitization as currently practiced in order to show that the most basic presumption of the courts is incorrect. Investors are not, directly or indirectly, receiving the money from proceeds of foreclosure sales nor were they ever intended to do so.
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Neil F Garfield, MBA, JD, 73, is a Florida licensed trial attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst. RESUME NFG 2020
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Summer — how about robots for judges?
I am actually convinced that Judges in Chicago are corrupt and professionally incompetent since most Judges are either friends of untouchable IL Mafia Boss Michael Madigan (who is recently involved in another huge bribery scandal, now with Comed) or relatives, friends and secretaries of other well-connected Judges. Here are no accidental Judges in IL Courts, it is all about Family and Friends club.
If Al Capone would appear in today’s Chicago Court, he would walk away unharmed, plus receive a handsome settlement from the city. Because today’s Chicago Judges will never switch the Jury; and Madigan would be the best friend to Al. .
If Judges need education on the law they practice every day -particularly Contract law – which results in forfeiture of someone’s home for lawyers who are either relatives of judges or pay generous donations to sitting judges – when we probably need an alternative Court system for average citizens based solely on Jury Trials, without Judges. Because right now Judges always stand for the money.
Seattle wants to defund and dismiss their police. How about start from Courts? Jury Trials would be more efficient, unbias and much cheaper that paying $200+ to Judges who only serve interest of a particular group of people – Banks , corporations and well connected lawyers.
If Judges do not know the law of contracts, then what is the difference if decisions are made by average people (Jurors) who also do not know this law or know very little about it?
I think everyone needs expert assistance. Cost often precludes. However, there is often a point in time that principal matters more than the “house” itself or money. Dignity.
And courts may also preclude. But courts need education – BADLY. It is worth the investment if you can get in. Believe will turn the tide on bad decisions that lacked the educational expert input for a long time. Those bad decisions became precedent.
I am not convinced that judges are corrupt or bad. They are not educated in this area. What is done after all this pandemic “forbearance” will be critical to shed the light to courts. .The courts will not be able to label borrowers as “deadbeats” as the media told us – over a decade ago. But they are already trying. Claiming “disincentive” to work for enhanced unemployment. That is GOP. Businesses are closed, some permanently, and some can’t operate with “masks,” Oh – haven’t the bank and non-banks worn masks for decades?
They are already setting up separate “liquidity trusts.” No one gets – done if in forbearance. Done has to the path of the “transaction.” Gone down the long winding road of debt buying and point of no return.
Recall who told us how bad we the people are – posting again – link to Rick Santelli’s chant. If this is not enough to convince to stand on principal – I don’t know what is. And that was Obama and Pelosi. So where do we the people stand against massive fraud?. Biden? Trump? Pelosi? Dems? Reps? Answer – none of the above.
Rick, are you going to do the same chant today?