Experts and Forensic Mortgage Reviews

It appears I need to weigh in here. My objective was to let the “free market” operate and have people offer various services that would assist homeowners in fighting or challenging their lenders. What we have instead is some service providers performing some of the work needed in a forensic review and many of these service providers calling themselves experts. As with any contest, if the referee leaves the field, the players will run amok and I sense that happening here. By the way, so there is no mistake about it, I am the referee.

First on the “expert issue” let us be clear. Expert testimony consists of opinion testimony or factual testimony not about an individual case so much as about an entire industry or marketplace. The opinions rendered are then applied by either direct evidence in the legal case that is pending before a court of law or by hypothetical questions. You are not an expert just because you say you are. You’re not even an expert if you really know more than others. You are an expert if your testimony has been used or officially accepted by court order based upon a complete showing of your credentials, your education, your prior experience in the industry, your prior experience in expert testimony, and a good clear explanation of the scope of your testimony and upon what resources you rely in rendering opinions.

To make it doubly clear, although I have testified as to my opinions and the workings of derivatives and securitization at deposition in current court proceedings and my declarations have been accepted in court as expert affidavits, I am not technically a recognized QUALIFIED expert witness in securitization, TILA, etc., because my opinions and testimony have not actually been used in an evidentiary hearing. So even though I have been an expert on other matters in federal and state courts, I am NOT yet officially a qualified expert in the subject of this blog and my own Garfield Continuum seminars that Brad Keiser and I do every few weeks, despite their approval by various state Bar(s) for CLE credits for lawyers. Compare that with the claims that others are making and you will see why I am writing this. You are not getting an expert or even someone who can claim to be an expert if they merely WANT to be an expert. Check carefully with references and examples of court testimony before you accept as true that they are or could be an expert. And even if they can be it doesn’t mean they would be good at it. Ask any real litigator, the success or impact of an expert witness is less about his/her credentials and knowledge and more about the ability to communicate in understandable terms often complex subject matter to the audience(judge/jury). 

Forensic reviews. People like to use the word “audit” and occasionally I have slipped those terms in as well. But an audit is something very different than what is being done by any service providers including the ones recommended or being allowed to promote themselves on this blog. It is a review not an audit. You may like the sound of the word “audit” better because it seems more important. But an audit is very different than the work being performed here.

Here is the bottom line on forensic reviews: a TILA “audit” is good and it might get you some money back but it won’t, in most cases, do ANYTHING to help you keep your house. A QWR (Qualified Written Request) should be part of the output of a review, and it can be used against the lender when the matter gets to court, but the QWR itself does NOT stop foreclosures, and it does nothing else on its own since there is at least doubt as to what consequences befall a lender who refuses to answer it properly. The same thing applies to DVL (Debt Validation Letters) or demand letters to appraisers, closing agents, trustees, real estate brokers, mortgage brokers etc. These are all preludes to court action, discovery and motion practice where you pin the lender into admitting they are a pretender lender.

A proper forensic review would include TILA, RESPA, SEC (Securitization), Public Records (Chain of title), Appraisal verification, and plugging in the actual cast of characters in your loan into a chart that has the generic players in the securitization scheme. It costs more than a TILA audit standalone product. But the TILA audit leaves your house and tens of thousands of dollars in damages on the table while you get to collect, on a good day, a few thousand dollars in rebates. The review would also take note of disparities in signatures, dates of filing, and other title related aspects of the loan or foreclosure — things that many times make the difference between sale or cancellation of the sale.

Because of all this I have ordered a review of the marketplace and I have reached out to some old friends in the banking and legal community who know how to organize things so we can all get a forensic review product out that actually helps homeowners and lawyers. The idea is to properly enable and arm every service provider who wants to do this work and use this blog as a marketing channel. Until we make that announcement, be very careful of who you pick to assist you in “TILA or Loan AUDITS”  or forensic reviews. Most of them are not the real thing.

Tags: borrower, disclosure, foreclosure defense, foreclosure offense, fraud, lost note, predatory lending, rescission, securitization
Posted in bubble, Eviction |