The Neil Garfield Show: Evidence- What you DON’T know can Kill your Case

Feb 8, 2018

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Please read this case prior to the show: Deutsche Bank Natl Trust Co. v. Burke 117 F. Supp. 3d 953 – Dist

Why do homeowners win their cases?

It’s not because they disproved the debt. The debt remains, although the ability to foreclose has been defeated. What happened in those cases where the homeowner emerged as the victor?

The answer is in the evidence and how it was presented. Our seminar on Evidence on February 16, 2018, seeks to guide lawyers and pro se litigants on the procedure for successfully challenging evidence. We already know that the procedure starts off with Discovery, Motions to Compel, Objections at Trial and Cross examination. But what is the underlying theme behind those objections and cross examination?

All objections and cross examination questions arise from a knowledge of the rules and laws of evidence. What you don’t know can kill your defense. The law of evidence is that hearsay evidence is excluded for the trial record. But the procedure requires that a timely objection be raised contemporaneously with the the question asking for a hearsay response. This is where pro se litigants and inexperienced lawyers get steamrolled. If the objection is not deemed timely by the trial court, then the objection is waived and the hearsay testimony or hearsay document comes into evidence.

Evidence is an art not just a skill. The goal is not just to score points on an imaginary scoreboard. The goal is to actually persuade the judge that in this case the bank, servicer or Trustee should lose because they didn’t fulfill the requirements of a prima facie case.

In our last seminar I referred people to Deutsch v Burke as a reference point for Death of the Originator. Now I return to the case to show the value of the case in planning a successful foreclosure defense.

If you read the case carefully before the program and again before the seminar you will get far more out of our show tonight and far more out of the Evidence Seminar on 2/16/18.