Is Your Witness Ready For Your Foreclosure Trial?

Before the early 2000s, foreclosure trials were almost unheard of. There were few defenses, and defaulted borrowers rarely even contested foreclosure cases filed against them. But after the foreclosure crisis that began in about 2006, things have changed, and if you aren’t ready for a trial in your foreclosure case, you could end up with a real problem.

Getting Witnesses

One thing that many lenders struggled with when foreclosure cases became foreclosure trials, was who would testify on the lender’s behalf. Many loans had been transferred multiple times, and even if it was apparent who owned the loan, a loan can have a trustee, a lender, a services, and multiple other parties—so who actually needs to sit in a trial and testify on behalf of a bank?

Personal Knowledge

The law requires that your witness in your foreclosure trial have personal knowledge of the facts of the case. Many banks get into trouble because their witness does not have any knowledge at all about the loan, the borrower’s default, the payment history, or the facts of the case.

The witnesses that banks were presenting at trial often had little or no knowledge of any of this, and savvy foreclosure defense lawyers seized on that. As a result, many foreclosures were denied.

Who Will You Use?

Many lenders today are more aware of the legal requirements to win a foreclosure case, but it bears repeating that your witness must have knowledge of all of the necessary information in the case. Alternatively, you may need multiple witnesses (although this is not a requirement) if one witness doesn’t have personal knowledge of all the required information to foreclose.

Your chosen witnesses don’t have to have personally qualified the buyer, given the loan, and spoken to the borrower on the phone every time the borrower called—that would be impossible. But the witness should know more than having reviewed the file a few minutes before the foreclosure trial.

Your chosen witness should be ready to answer the questions that the attorney for the borrower will ask.

That may include questions not about the loan, but questions about the witness’ employment history with the lender and beforehand, and questions about how the witness actually knows about the things he or she is testifying to. Expect to be asked questions about how the loan was transferred or assigned if it was before the default.

Review the Case

The witness should be familiar with the documents in the case. Not just the mortgage or the note, but also about demand letters, or correspondence sent to and from the borrower. The witness doesn’t have to have the payment history memorized, but he or she should have an ability to read and interpret the payment history so that the court understands it.

Contact Gilbert Garcia Group, P.A.can help you with your contested foreclosure case, or if you need default legal services on a real estate matter. Contact our Tampa contested foreclosure attorneys today for help.

Source:

law.cornell.edu/rules/fre/rule_602