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Lawyer didn't submit evidence at diversity action on foreclosure

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  • AddictionDoc
    replied
    Re: Lawyer didn't submit evidence at diversity action on foreclosure

    I have 6 other issues on appeal and the "letter" is an adhoc in order to put on display the failure of the attorney to NOT offer the letter into evidence. ( Yes Lexus the court DOES perfunctorily allow evidence related to the case BUT--, absent extraordinary circumstanes-- will only do so as long as the opponent(s) can inquire and/or object or stipulate etc.

    Plaintiff's reply to answering brief(s) now due. AND as ambiguity is often resolved in favor of the Pro Se petitioner it is worth a shot. No harm no foul trying!

    Thanks for the only reasonable answers so far.

    Richard

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  • Friend In Court
    replied
    Re: Lawyer didn't submit evidence at diversity action on foreclosure

    Other than going the appellate route where the crucial evidence you believe would have resulted in the decision in your favor is not in the record, another route is reopening the case -- a motion to set aside the judgment and vacate the decree of foreclosure.

    The advantages are several; time, simpler procedure and, of course, the critical piece of evidence would be in the lower court record.

    Court Rule 60 is what you want to look at, the various reasons to reopen a case, set aside a judgment. Attorney error is not one of them, as I recall, but if you review the rule you may find an avenue to move to reopen the case and set the judgment aside.

    Then if you lose that motion, you will have a stronger case on appeal if you are sure the evidence would dispose of the foreclosure as you contend. You would have "error of law" on appeal.

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  • Lexus
    replied
    Re: Lawyer didn't submit evidence at diversity action on foreclosure

    A lawyer cannot present just any evidence at trial. The Federal Rules of Evidence establish the kinds of evidence that can be proffered in a civil trial, and how they can be submitted. Lawyers can object whenever the opposing party improperly submits evidence, but the judge will be the gatekeeper who ensures the rules are followed.

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  • AddictionDoc
    replied
    Re: Lawyer didn't submit evidence at diversity action on foreclosure

    I agree in part with Friendincourt. A diversity action is the cause for action in District and the decision for the COA. AFFA is clueless and should refrain from banal or foolish comments not researched.. I have Shepardized but was hoping that there might be advance sheets or new cases that Justia or Pacer hasn't logged yet. The COA reviews the ssues of Law and not the issues of fact. Yet the COA certainly can look at issues of fact in the Opening Brief and Reply if there is a probable--not possible--manifest injustice.

    ...[C}ourts of appeal draw an important distinction between the review of factual issues and the review of legal issues. Conclusions of law receive de novo review. Horton v. Reliance Standard Life Ins. Co., 141 F.3d 1038, 1040 (11th Cir. 1998). Findings of fact are upheld unless clearly erroneous. Media Services Group v. Bay Cities Communications, Inc., 237 F.3d 1326, 1329 (11th Cir. 2001).
    [SIZE=4]The appellate court must accept the trial court's findings unless it's left with the "definite and firm conviction that a mistake has been committed." Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 855 (1982).

    [/SIZE]

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  • Friend In Court
    replied
    Re: Lawyer didn't submit evidence at diversity action on foreclosure

    A federal diversity action is not an appeal. It is an original action. The previous poster does not know federal Civil Rules of Procedure, much less the Evidence Rules and how to find them.

    My suggestion to the poster is that he check the annotated Federal Rules of Civil Procedure for evidence rules and cases on point.

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  • AFFA
    replied
    Re: Lawyer didn't submit evidence at diversity action on foreclosure

    I wish to inform you that no new evidence can be submitted in court without permission of court. In this regard as the case is in appeal stage thus generally appellate court overviews as to correctness of District Court order. If any new evidence is to be submitted it is submitted with after filing of motion to allow you to file submit letter from Lender in diversity action where you may justify that it was not presented in District Court without your fault.

    AFF

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  • Lawyer didn't submit evidence at diversity action on foreclosure

    Attorney failed to submit letter from Lender in diversity action at Fed. District Court trial on forecloseure that stated lender was only servicer and not note holder anymore. The letter from the then former note holder stated that it had transferred beneficial interest to Fannie Mae but was not recorded. With this letter the Court would have an unrefutable statement that would gut the Foreclosure. I have presented the letter to 9th Circuit in my brief. Is there any law to support this manifest error where the COA can consider this blunder?
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