How good is an “expert” affidavit in foreclosure litigation

Posted on May 9, 2023 by Neil Garfield

Very few people have studied the use of expert testimony, and fewer still have understood it. Start with the basics:

  1. An Expert is a person with knowledge beyond the scope of knowledge of the judge. So if you want someone accepted as an expert, you need to show that it is more likely than not that this witness will testify about something that the court concedes (formally or informally) it does not yet know.
  2. An expert cannot give an expert opinion on conclusions of law by using the word “illegal” or “fraud” or other words that imply that a judge and jury have heard it and rendered a verdict. So the expert can testify that in their opinion the signature is inconsistent with other signatures by the same person; but the “expert” will not even be allowed to testify if they have no credentials, licensing, education, and long-term experience examining documents for law enforfement or other venues that are deemed credible.
  3. An expert’s factual opinions will be given more weight if they have testified in other venues before with success.
  4. An expert undermines their ownt estimony the moment they appear to be na advocate for the homeowner.

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While it is possible that a court might accept opinion testimony and it might be given weight in deliberations, it seems unlikely that will happen very often. Judges think they know all about foreclosures. They see no need to delay the proceeding by listening to some witnesses give opinions about things the judge believes they know better than the witness.

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As with others who have accumulated a lot of knowledge, the apparent lack of credentials would undermine your status as an expert who could testify to matters beyond the knowledge of the court. So the setup by the lawyer becomes extremely important (vital) to getting anything contained in the expert’s report into evidence.

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But that said, your ability to produce inconsistent documents (i.e., inconsistent with the documents in a specific case) could be very valuable factually. For people who want to offer “expert services,” I see more value in an access proposition than a referral for reports and affidavits. Obviously, we need some people who want to incorporate that into their services, and they will need to see examples of what you can do.
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Don’t assume you know the rules of evidence. Even lawyers, if they are any good, do their research before trial with an eye toward likely objections and motions during trial.
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The presence of a forged note does not necessarily end the case or even delay it.
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One of the issues that I harp on regularly is that the debt, note, and mortgage are three standalone legal events. Even if you prove that the note was faked, that does not mean that the debt was extinguished or does not exist independently from that note. It might or might not delay the case. If the lawyer for the dark side manages to convince the judge that the named successor beneficiary under a deed of trust is, in fact, the owner of the debt and that it had a right to possession of the note (even if the original cannot be found), then the homeowner can and should lose. 

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CLICK TO DONATENeil 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.

Filed under: foreclosure |

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2 Responses

  1. RONALD W HOWZE, on May 9, 2023 at 7:03 pm said:

    in Pasco fl. case#2018cc2984. judge is friends of the plaintiffs family. judge has a 15k cap but he holds for 4 years a case demanding 23k.the now disbarred lawyer dropping 60+ felony counts on the record like rain
    I was ordered to remain silent. after the first 5 min in court. By proving I was the holder of all originals proof of debt and the deed. Even as I was pro se and left without a single civil right intact. I won!
    I have been forced to file suit. to stave off the county from following through with there plan a month back to demolish the property out from under my 10 year-old grand daughter and daughter.
    going as far as a asst. attorney “she will be removed by force and made to watch” her home that’s across the street from us. I gave the sheriffs fair warning and wrote it in my suit.
    DON’T TREAD ON ME!! I don’t care if it’s john cassy and adolf hitlers test tube love child. no grown ups are going to hurt any child. other than busting their buts to do tighten there attitude.
    my demand is 2k a felony and over 10 years the counties allowed over a 100+
    23-ca-3257ws/g is the case#
    I named the county of Pasco and all those employed by it.
    then myself and the United States of AMERICA AS PLAINTIFFS.
    I NEED ADVISE AND A SOUNDING BOARD MENTOR. THE COUNTY IS SO SCARED THEY ARE TRYING TO RECREATE MY MOTIONS AND JURY TRIAL DOCS. JUDGE KEPT STEALING

  2. Papergate, on May 9, 2023 at 3:54 pm said:

    Glad to see Neil posted . . . was concerned about him! Don’t scare us like that Neil!!

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