Ask the Expert: Foreclosure Defenses

Maher Soliman is an expert witness who testifies in these matters concerning securitization and federal banking rules violations

The expert disclosure provisions of Rule 26 must be considered, however vague they appear. This is brought forth to counsel with respect to full acknowledgment and understanding for the claim f material violations.

The requirements demand that counsel be alert whereby parties must disclose the identity of all witnesses they might use at trial to present evidence under Rules 702, 703 or 705 of the Federal Rules of Evidence. Fed. R. Civ. P. 26(a)(2)(A).

If such a witness either is retained or specially employed to provide expert testimony, or if the witness’s job duties as a party’s employee regularly involve giving expert testimony, the disclosing party also must provide a written report prepared and signed by the expert containing certain information specified in Rule 26(a)(2)(B). Whether and to what extent the report requirement applies to a non-retained witness who also happens to qualify as an expert on some topic, a so-called “hybrid” witness is not as clear.

My suggestion is the 1993 Advisory Committee Notes to Rule 26 for some if not much guidance. The references describe in some manner the report requirement of Rule 26 and its proper application to the mater. Specifically, it solely “applies only to those experts who are retained or specially employed to provide such testimony in the case or whose duties as an employee of a party regularly involve the giving of such testimony.” Id. advisory committee’s notes (subdivision (a)(2)).

Thus, a “treating physician, for example, can be deposed or called to testify at trial without any requirement for a written report.” Id. Our understanding are of little concern for r the topics on which a non-retained witness who otherwise could provide expert opinion testimony (such as a treating physician), but who did not prepare a Rule 26 report, may testify at trial.

In Anatomy of a Witness List Hon. Michael L. Stern writes that "each witness should tell the next part of your story and move your case forward."The order in which witnesses are called at trial can make or break a case. The process of preparing a witness list, including careful consideration of who to call, when and why, may forecast a verdict even before counsel step into the courtroom for trial. It is vital to determine which witnesses will provide maximum impact at different point’s into a trial.

Each (expert) witness must be evaluated as a potential "opener," "closer," or "sleeper." Some witnesses can persuasively establish or refute liability on damages issues.

Others are better for introduction of documentary or other exhibits. Sometimes witnesses must be called adversely for essential information or taking the edge off problem areas. Above all, calling any witnesses requires strategic thinking, not simply conjuring up an arbitrary list of persons with potential testimony.

The testimony is unusual in that Witness to the events leading to a breach of duty was in fact witnessed and considered something very strange out of normal business practices. Something occurred with respect to the subject of the defendants claims against “SunTrust” where the lender appears to have undertook the own pursuit to cure the problem.

There was also a need for SunTrust to make a series of deceptive and material violations to fair business practices, generally accepted accounting rules and both State and Federal Civil codes. If not, no other explanations are available for the fraudulent second mortgage used to replace the prior federal Credit Union Loan. The events leading up to July 2007 are now coming to light as for arguments supporting why Sun Trust did not seek to provide a more honest assessment of the facts and issues involving the obligation the Olehy received on various separate occasions.

Labels: dangerous, Deceptive, DEED IN LIEU, Default, GUIDELINES

posted by Mortgage-Mess  # 6:08 PM