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

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.

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.