I keep getting messages from homeowners who are furious with the corrupt system of the courts because they tried to call a witness to testify as an expert and they failed. Calling an expert means you must fulfill numerous requirements. One of them, the threshold question, is whether an expert is even needed.
The Judge determines if an expert is needed, And as the trier of the facts, he or she considers whether the court possesses sufficient Information about how foreclosures work. No, the court need not know about how securitization works because the case is not about whether securitization was proper or improper. The case is about whether the plaintiff is the owner of an unpaid debt owed by the homeowner to the claimant. It is about whether the declaration of default was properly and timely issued by a party with full authority to make such a declaration.
The case in foreclosure is not about whether the opposition consists entirely of thieves even if they are thieves. That is for later after you’d defeat their case against the homeowner. And that is where both pro se litigants and lawyers often go off the rails. In court, there is specified order in which actions can be taken. If you go out of order you are either taken out of the contest or put to the back of the line. the fact that you don’t understand that order is not a problem for the court. ANd it is not a sign that the court is corrupt.
So it is not unusual for a court to refuse to allow someone to testify as an expert even if they are an expert. And it is a mistake for a forensic expert to offer opinions for which the proposed expert possesses no special qualifications, education, licensing, or training.
But that person may still testify. If they have done work doing research or investigating the documents or events, they can testify as to what work they performed. The court will not stop them from testifying about that. And they can testify about apparent inconsistencies without offering an expert opinion (for which they are ordinarily not legally qualified to render).
The investigator can testify that he was asked to investigate who paid for the alleged underlying obligation, whether that obligation still exists and whether the documents proferred by the opposition are consistent with the allegations of the claim —- as long as it is not a legal opinion, which will be excluded.
So the moral of this story is don’t call your investigators to testify as experts unless they actually do have some legally recognized expertise that is relevant to the issues in the case. Call them as fact witnesses and during their testimony, they can offer their opinions unsolicited if there is no objection and no motion to strike.
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Neil F Garfield, MBA, JD, 75, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).
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