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The Benefits and Limitations of Expert Declarations and Testimony in Foreclosure Actions

livinglies.wordpress.com | July 6, 2016

By Neil Garfield


Homeowners and their lawyers have been misusing expert declarations since the mortgage meltdown began. A few like Ron Ryan out in Tuscon, did use it correctly but generally the judges back in 2007-2012 were not interested in anything other than getting the foreclosure sale done. Ron understands that the expert declaration is far more useful in motions and pursuing discovery than at trial. It is the expert himself/herself that must present live testimony in court if you want the results of forensic analysis to be taken into account in reaching the decision.

I can't count the number of times that people and lawyers, despite my instructions, offered my expert report as evidence rather than persuasion and found out that the report was inadmissible because it was hearsay without me testifying there in court or over satellite or other video conference modes. Some of them came back to me saying the expert declaration was useless. When I pointed out that the instructions that went with the report specifically stated the hearsay and other problems and that the report should only be offered (a) in motions (b) in discovery and (c) at trial with my live testimony attesting to the contents of the report, they get angry at their own lack of knowledge and skill in court rooms.

I have a manual I wrote on the use of expert witnesses. Most people make the error of thinking that a report from an expert witness should "speak for itself." it doesn't speak for itself and in fact it doesn't speak. It could be used with an affidavit to aggressively pursue discovery. It could be used as providing foundation for allegations in your complaint --- but usually you are already on the wrong track if you need to point to an "expert" report to shore up the allegations in your complaint or counterclaim. But at trial the written report is hearsay for the same reasons that we oppose the business records exception on the basis that the records come from an untrustworthy player, and derive from an untrustworthy process and probably are inconsistent with other versions of the same documents or related documents.

No court is going to replace its own conclusions with that of an expert. The expert should be involved to clarify, simplify and direct the narrative that provides the court with a reasonable foundation upon which the Court could provide relief to the homeowner or grant the claims of the homeowner.

An expert is a person who possesses superior knowledge to the Court --- not conflicting opinions with the court. The expert must be able to clearly and convincingly show that the facts uncovered or that have been withheld specifically draw together some FACTUAL conclusions and why --- along with corroboration in real life (an opinion is not corroboration).

And I would not necessarily rely on the expert's "opinions." You can refer to the FACTS contained in the report, but the opinions will hold very little weight. Referring to a third party as an expert and as a forensic analyst who came up with real facts is much stronger than referring to her as an expert.

Most designated experts, while accepted by the court as experts get virtually no traction in court because they do not gain the respect of the judge or jury without a display of "plumage" --- i.e., educational degrees, licensing and experience. Experience here could mean having the experience of looking at hundreds or thousands of loans but it would mean a lot more to the Judge if experience was in the field of law, Government, accounting or document examination. Otherwise the court has no inclination to accept the opinions of the analyst or expert.

Yes there is a snobbery here but ignoring it will just lead you to righteous destruction. Only people who have degrees, certifications and licenses along with real world experience are going to be taken seriously by a Judge. Most of those are employed by banks, leaving slim pickings for the lowly homeowner.

The expert must be perceived as possessing real qualifications as an expert on their own. If the "expert" is an excellent presenter of work distilled from others but has no accounting, legal, or government credentials either by education or practice, THEN use the expert for presentation under the rubric or umbrella of being an expert who merely presents facts. One of the good things about expert testimony is that experts can rely upon hearsay in order to form opinions. It isn't admitted as evidence without corroboration but it gets facts in front of the trier of fact that they might otherwise not hear.

An expert witness is BY DEFINITION a person who has superior knowledge to the trier of fact and who can explain to the Court the significance of certain facts leaving the court to draw its own conclusions. The expert is there to educate the judge --- not argue with him/her. The opinion is about why certain facts are significant, factually, not legally. The expert's legal conclusions are (a) irrelevant since the court makes that determination and (b) unsupported by any competent evidence, even if they are true. Having the expert in court to listen to the evidence and then being able to comment on the evidence is a dispassionate way could be very powerful.

The expert's opinions must tie the significant facts together. The danger is that the expert's "facts" and opinions might collectively be disregarded by the Court --- if the opinion is not corroborated or substantiated by the facts presented in the report which is then presented in live testimony from an expert who holds up under cross examination. The expert opinion must state the specific facts upon which the expert relies for a specific opinion. The opinion must give the court a clear understanding of the facts and should not be written as an advocate for the homeowner. Only an expert with no dog in the race will be taken seriously. In addition the expert should state what questions were asked and how she answers them or if she can answer them and with what probability her answers are true.




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CFLA was founded by the Nation's Leading Foreclosure Defense Attorneys back in 2007 to serve the Foreclosure Defense Industry and fight pervasive Bank Fraud. Since opening our virtual doors, CFLA has rapidly expanded to become the premier online legal destination for small businesses and consumers. But as the company continues to grow, we're careful to hold true to our original vision. For us, putting the law within reach of millions of people is more than just a novel idea—it's the founding principle, just ask Andrew P. Lehman, J.D.. With convenient locations in Houston and Los Angeles, you can contact Our National Account Specialist and General Manager / Member Damion W. Emholtz at 888-758-2352 for a free Mortgage Fraud Analysis or to obtain samples of work product, including cutting edge Bloomberg Securitization Audits, Litigation Support, Quiet Title Packages, and for more information about our Nationally Accredited and U.S. Department of Education Approved "Mortgage Securitization Analyst Training Certification" Classes (3 days) 24 hours for approved CLE & MCLE Credit (Now Available Online).

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