Hat tip to Elle
She raises probably the most important problem confronting homeowners in conflict with pretender lenders. “what if the witness is clearly lying, but it is affecting the judgment of the presiding judge?”
The procedural answer is that even if it is clear to you and the rest of the courtroom, once the judge says the light was green, the traffic light was green for all legal purposes — even if it was red. You can counter that narrative, but you need to be pretty good at trial techniques.
The issue is your choice of words, “clearly lied.” The judge’s decision trumps your description of “clearly lied.” Once the judge says it is credible, it is a fact for the purposes of that specific case.
In court, you either have admissible evidence that is properly presented in support of the truth of the matter asserted or implied, or you don’t.
When it comes to lying or fraud, the stakes are high, and so is the burden of proof. It is not enough to imply lying. You must present evidence of a specific material and relevant fact that was said in a specific context at a specific time.
Then you produce clear and convincing direct evidence that the statement was wrong, factually like a traffic light being either red or green. Then you must show that the speaker knew it was false and was intentionally making the false statement to affect the behavior of someone who reasonably relied on that statement to their economic detriment.
PRACTICE NOTE: Within the context of foreclosure litigation, the way to attack a witness who is “clearly lying” is to raise objections before they can answer or argue the objection and motion to strike if they snuck in the answer.
The lying witness in foreclosures does not know anything. So objections are based upon personal knowledge, lack of asserted familiarity with records that do not qualify as business records, and hearsay. Once you remove the foundation for the question, the witness’s testimony is excludable upon motion.
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Neil F Garfield, MBA, JD, 76, 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 COMMENTS ON THIS BLOG AND ELSEWHERE ARE BASED ON THE ABILITY OF A HOMEOWNER TO WIN THE CASE NOT MERELY SETTLE IT. OTHER LAWYERS HAVE STRATEGIES DIRECTED AT SETTLEMENT OR MODIFICATION. 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 14 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).
Yes you DO need a lawyer.
If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.
Please visit www.lendinglies.com for more information.
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