On January 3, 2010, Associated Press' "Foreclosures weigh on home appraisals" made the Yahoo! buzz reporting that the National Association of Home Builders said low appraisals affected a quarter of new home sales. New homes were being compared with foreclosures or short sales. Appraisers determined property value by looking at recent sales of comparable homes.
Borrowers affected by foreclosures can negotiate a loan modification or a Chapter 7, 11 or 13 bankruptcy filing. Sometimes when loan documents violate the Truth in Lending Act (TILA), a civil lawsuit may need to be filed.
In civil litigation, California Evidence Code Section 1105, comes into play to review habit or custom to prove a specific behavior. The TILA promotes informed use of consumer credit, by requiring disclosures about its terms, and to standardize the manner in which costs associated with borrowing are calculated and disclosed. When a lender regularly responds to a repeated situation, habit and custom may be used to show intent, absent of mistake or accident. People v. Bennett (1969) 276 CA2d 172, 80 CR 706. Andrews v. City & County of SF (1988) 205 CA3d 938, 252 CR 716. People v. Memro (1989) 38 Cal.3d 658, 681.
When evidence is unreliable or public policy requires exclusion, Evidence Code Section 405 applies. A party may introduce evidence before a jury to weigh on credibility under Evidence Code Section 406.
During trial or discovery, Evidence Code Section 702 requires personal knowledge in witness testimonies. Personal knowledge relates to one of the five senses.
Before written evidence may be introduced at trial, Evidence Code Section 1400 requires authentication, meaning a finding that it is the writing the proponent claims, or proof by other means (e.g., stipulation of the parties, by pleadings, or by use of a presumption).
A civil judgment is not judicial estoppel, meaning evidence from a civil case may be used for a criminal case afterwards. Banks that do not comply with regulations on loans may face civil and criminal challenges depending on the violations. Engage a bankruptcy lawyer who understands litigation processes, and has experience negotiating with banks to resolve loan modification or short sale issues.
