Friday, July 19, 2013

All Cases Rely on the Rules of Evidence; Foreclosure Cases Demand It

The Rules of Evidence Will Determine the Outcome of Every Case

I'm Eric Lanigan with Lanigan and Lanigan, I'm a real estate, business and civil litigator who spends 80 percent  of my time trying cases for clients.

I don't think that laypeople realize that in all cases: business, criminal, foreclosure that the rules of evidence decide the outcome.

In foreclosures, with the multitude of Robo-Signed cases, it's important to know that the inaccuracies and mistakes made by the banks and lenders can be beneficial to those facing foreclosure defense. Take the time to meet with an experienced foreclosure attorney so that you can learn what paperwork the lender does or does not have.

What Records Does the Bank Have?

I want to go over how a recent case that I had brought home to me how much the rules of evidence play in a foreclosure case. We were waiting out in the hall to be called in for trial and right in front of me the plaintiffs lawyer introduces herself to the so-called records custodian for the loan servicer the person who's going to identify and validate the records and they're introducing themselves to each other and realize that they've never met before and the lawyer actually hands the records to the custodian and says, "here are your records."

And I thought, well now, that's interesting. The so-called records custodian is now receiving the records that they're supposed to be the custodian of.
And I thought, well this is going to make for a great cross-examination of this person. But then, for another evidentiary reason we never even got to that point because when they attempted to submit these records I noticed as I expected that half of these records belonged to the original loan servicer. The one at trial had actually taken over the case. And that's actually a very common situation. Well I immediately objected on the basis that they can't make someone else's business records their business records just by putting them in the file.

Which is true and the judge although he didn't want to agree with me, he knew that he had no choice. He sustained the objection didn't allow the business records into evidence. Well with no records they had no case and it was dismissed.

So without a strong knowledge of the rules of evidence, those records would've come in and the plaintiff would have gotten a foreclosure judgment.

So these kinds of cases, always keep in mind, are not necessarily decided on what the facts are or even what they should be. But they're based on what is proven by the evidence.

I've had cases over the years, different kinds of cases, criminal cases other types of civil cases where my client has said, "this is the truth, I swear that this it's the truth," and I know it sounds cynical but sometimes I've actually said to them, "you need to understand something, I don't care what the truth is, in court I care what the evidence will prove."

And to follow down that road you have to have a thorough an intimate understanding of the rules of evidence.

Invest in a Legal Consultation Before Making a Decision

You've known that the foreclosure notice was coming and knew that you were behind on the mortgage. You've waited all this time and now you need to know what you're going to be facing. Do you keep the house or "let it go?" Do you fight the foreclosure knowing what you'll face in court against the lender?

Don't leave all these questions unanswered. Invest in a legal consultation by calling the Lanigan and Lanigan offices at 407-740-7379 to come into our Winter Park, Florida or Orlando, Florida locations. We'll have you complete initial paperwork and give you a checklist of items to bring. You'll find out where things stand and what direction you should go based on your choices and our legal recommendations.