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Hi I'm Eric Lanigan with Lanigan and Lanigan. I want to take a couple of minutes and talk
about foreclosure trials. Is it justice or is it just the lender's rubber stamp? The
answer to that question is quite simply it is what you make it. And I think one of the
first things everybody has to understand, especially people outside the legal community
is what is the role of the judge in a foreclosure trial? Or for that matter in any type of trial.
Most people think that the judge is there to act as a referee. And the answer to that
is yes and no. In a sense they are a referee but not in the common sense that we think
of them. For example, in sports when a referee say in a basketball game sees a foul, they
blow the whistle, the game stops and he penalizes the team that's commiting the foul. Well a
referee in court, the judge, is different in the sense they don't call the fouls. You
have to call the fouls. What the judge does is then determines whether or not you are
correct: did a foul occur and what to do about it. So you have to be a referee. So if you're
in trial and no ones calling the foul, so to speak, then the trial l is going to go
through and a number of things are going to happen that shouldn't. I've had personal experiences
when I've been in trial and I'm asking questions and I'm thinking to myself, how long is this
other lawyer going to let me get away with this? I'm asking questions that are clearly
asking for hearsay evidence or I'm asking for opinion testimony from someone who's not
been qualified as an expert. And if the other attorney just sits in his chair and plays
tic tac toe then the judge is not going to step in and say something to stop it and the
jury's going to hear all of that testimony because the other side just didn't bother
to object.
Likewise I've been in trial where someone's trying to get something into evidence and
they don't know how to do it. And objection this and objection that and the judge is granting
those objections because they're correct.
And sometimes I've had situations where somebody couldn't get something in evidence that should
be in evidence just because they didn't know what predicate had to be laid in order for
the judge to admit it.
I've even been in severe situations where the judge I think improperly, but at least
understandably, has sort of stepped in and said, "Listen, Mister Lawyer, why don't you
just ask the witness such and such?" In other words, here's how to do it.
They shouldn't do it but I can understand sometimes the frustration of what the judiciary
feels and like, let's just get to the next stage. And I think this is just critical in
a foreclosure trial because virtually in every foreclosure trial that I've seen the lender
shows up with one witness. Well given what we know they have to get admitted into evidence
in order to successfully complete the trial. There's no way they're going to bring just
one person in and get that done. There again, if the other side doesn't object and the the
person just identifies documents and the bank's attorneys says, "judge we offer this into
evidence," and the judge says, "any objections," and no one says anything it's admitted. No
matter how objectionable it's might actually be it's going to be admitted.
So I have seen foreclosure cases go through and the trial is completed, the judgment is
granted in favor of the bank, none of which ever should have happened because none of
the documents that they needed or at least the vast majority of them that they needed
never should have ever been admitted into evidence. I have likewise seen foreclosure
cases where just the opposite occurs. You destroy the ability of the witness to offer
these things into the evidence. They are not what we call the true custodian of record.
We see this all the time where they've got some sort of hybrid name like litigation supervisor.
Well what does that mean?
It certainly doesn't mean custodian of records and when that person is vordiared or cross
examined it comes out that they basically get all these documents once they got into
the litigation. They don't know how these documents got to the lender. They didn't do
anything to do with storing them, or their authenticity they're merely handed these documents
once a case goes to trial.
Well if all of this is exposed those documents are not going to come into evidence, because
that person is not competent to offer them into evidence. Or to lay the predicate to
get them into evidence. So all of these things should be going on in a foreclosure trial
just like they are in the most hotly contested securities case or medical malpractice case
or criminal case. Go watch one of those trials and you'll see how the lawyers contest the
admission of documents into evidence and what the ruminations that the lawyers have to go
through to make sure that these things are properly admitted and that the proper predicate
is laid for admission. So if you've been through a foreclosure trial or you're facing a foreclosure
trial and you haven't geared yourself up through proper and competent legal counsel to take
these steps that need to be done in a trial, then and you lose, don't come out and blame
the judge, just look in the mirror and you'll see whose fault it is.
They have