Competent Evidence, What is it?

Over the past decade the deceitful, deceptive, and illegal business practices of all major mortgage lenders have given rise to a new industry in the area of consumer advocacy. This industry has been coined the “Foreclosure Defense Industry”.

This situation, created by the mortgage lenders, has also given rise to a lot of companies whose purpose is to provide evidence to the homeowner, and/or homeowner’s attorneys showing that the mortgage was grievously defective and a subsequent foreclosure is wrongful.

A homeowner whether in good standing with their alleged lender or facing foreclosure or a pending eviction must be very careful regarding who they turn to for their evidence. There are a lot of service providers out there that provide evidence that cannot pass the test of competency.

Once a client (or counsel) has, and let me stress, “COMPETENT EVIDENCE” they should be asking if the documents and instruments (note, deed of trust & riders) create a valid lien.

The reason I make such a big deal out of “COMPETENT EVIDENCE” is very important to understand here. What we have been saying for a long time now was confirmed to me in mid January in a conversation with a California (foreclosure defense) attorney. Allow me to illustrate what I mean with some background, theory, and confirmation.

There are 42 states in the union that have “License Requirements” for “Private Investigators” and/or “Private Investigation Companies”.

What constitutes being engaged in this occupation?

I encourage researching these state’s statutes as we have done to validate what I am saying here. Here is a list of the states you can take off the list;

NO “STATE” PI LICENSING REQUIREMENTS:

1) COLORADO (Private Investigators Voluntary Licensure beginning July 1, 2012)

2) MISSISSIPPI

3) SOUTH DAKOTA

The following states have NO STATE PI LICENSING, but some cities have their own licensing with minimal requirements:

4) IDAHO (Boise has city licensing only)

5) ALASKA

6) WYOMING (some cities have city licensing, although no state licensing)

7) ALABAMA (only requires a state “business license” with no PI experience needed)

According to a relatively universal language throughout the remaining 42 states if one is (loosely translated to fit the average scope of these remaining states);

1) a finder of facts who, by using a database not available to the general public

2) generates a report containing those findings that is,

3) intended to go before a court of law, then by definition one is considered to be conducting a Private Investigation as a Private Investigator, or operating a Private Investigation Company for which there are license requirements.

In other words, you can look into your own issues all day long no problem, even if you look on a system not available to the general public, and I’ll address providing your own findings in a moment, but as soon as someone looks into the issues of another, they are then by definition conducting a “private investigation” for which, they had better have a license. If the finder of facts is not licensed then what ever evidence they produce is incompetent by nature of that individual’s or company’s failure to meet the state’s licensing requirements.

Now let’s look at a homeowner providing their own findings. If you enter your own findings as evidence it is easily shown by opposing counsel to be bias and prejudice and move the court to strike your evidence and dismiss your cause because you have an interest in; the outcome of the evidence, the process of gathering your evidence, the property itself, and the outcome of the case, etc., and now the question of omissions comes into view, i.e. did you, the finder of facts, leave out anything that was not beneficial to your argument or anything that may have proven fatal to it?

This instills an advantage to your evidence being provided by an uninterested 3rd party who is; 1) licensed, 2) insured/bonded and therefore, 3) experienced; 4) can take the stand and offer “Expert Witness” testimony, and thus; 5) capable of providing “COMPETENT EVIDENCE” that can and should be offered and recorded on the record of evidence, as evidence.

Confirmation:

The attorney I referred to above told me that he had lost a case about a month prior to our conversation for that very reason. He said, “Work product is everything”.

It is my understanding that it was alleged by opposing counsel that the homeowner’s evidence admitted into court was incompetent because of a failure to meet licensing requirements and upon those grounds moved the court to strike the evidence from the record and then moved to dismiss the homeowner’s action for lack of evidence. His (opposing counsel’s) motions were granted. The homeowner lost because the evidence was incompetent.

To date some of the evidence that has been generated and submitted into the court record has worked successfully for a handful of homeowners however on the heels of this revelation it seems just a matter of time before this tactic is implemented by other bank/foreclosure mill attorneys in order to destroy a homeowner’s evidence without regard to the accuracy of the findings therein.

Can it get any worse for a homeowner fighting a foreclosure? Yes it can. An attorney or pro se litigant can face disciplinary action and be sanctioned for submitted incompetent evidence into the record of the court. In addition, the service provider can face severe disciplinary action by the state for conduction a private investigation, or operating a private investigation company without a license. Here in the state of Texas a fine of $10,000.00 and up to 5 years in jail can be imposed for each offense.

If you need assistance getting “Competent Evidence”, backed up by an “Expert Witness” to show the court why your mortgage is unenforceable please click “Contact Request For Assistance” or visit the “Contact” page on Pro Se Foreclosure and sent me an email and I will be glad to help you get that.

Steve Skidmore

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