New York Probate and Estate Administration Lawyer Blog
MBIA Insurance Corporation (MBIA) filed a motion in limine for the court to allow MBIA to use statistical sampling to be able to present evidence for fraud and breach of contract and also to prove damages against Countrywide Home Loans, Inc., Countrywide Securities Corp. and Countrywide Financial Corp. (collectively Countrywide). A motion in limine is a request for a judge to rule if evidence may or may not be introduced in a trial. This can be done before or during a trial. Countrywide opposed this motion. A New York Probate Lawyer said that this is usually done to make sure that a jury will not see a possibly damaging evidence.
On September 27, 2010, a hearing was held to examine the evidence. MBIA presented an expert witness in the person of statistician Charles D. Cowan, Ph.D. Dr. Cowan gave testimony as to his proposed method of sampling the fifteen residential mortgage-backed securitizations (RMBS), which is the issue. The court requested that the different groups submit additional arguments on October 13, 2010. The requested that these opinions be delivered by letter.
One of the motions of the defendant is that the petition was premature. A Long Island Probate Lawyers mentioned that the court in this case did not set time limits with the motions in limine. Although MBIA presented this very early in the trial, it is legal and timely. The defendants, Countrywide, as well contends that legal and factual issues prevent the decision regarding MBIAs appeal. Countrywide says that there are disputed issues that must be settled first before the use of sampling. They stated that with the granting of the motion of MBIA, the court would improperly resolve legal questions that have not yet been fully discussed by the parties in court.
The court agrees that the other issues need to be resolved but the defendant, Countrywide, is not able to present any basis that the current listed issues have a link with the current motion. Countrywide does not present how the resolution or the non-resolution of the issues affects the sample. An additional argument is that MBIA was not able to exhibit how the sampling will be useful in the hearing. Countrywide was claiming that MBIA did not present anything that shows sampling can prove fraud and breach of contract and also to prove damages.
New York Law uses a general acceptance test to test a reliability and admissibility of an expert testimony where the sampling will ultimately work with. They ask if the presented scientific evidence is unusual. This is not the case for sampling as it has been used multiple times in different case tried in court. The next test is if it is accepted by the scientific community. Sampling has a widely spread acceptance in the scientific community. They use it with a variety of things to prove and disprove. The last is if the sampling proposed is reliable. MBIA has presented that for the sampling that they will do, there will only be a 5% margin of error. There will also be different variables that will be considered including delinquency status. Westchester County Probate Lawyers found out that the court decided that the statistical sampling may be used in a trial as it passed the general acceptance test. With this, the court also states that it is not the only way that the parties can present evidence. They also say that they are not saying that the statistical method is perfect and cannot be challenged. Countrywide presented valid disputes, which at the time the court says are premature.
In the decision of the court, it says that granting the motion in limine may save all parties from a long litigation time. It also does not compromise any of the parties’ interest. The court finds no prejudice in the sampling method. MBIA may present their evidence as they choose as the burden of proof is with them and Countrywide can challenge these evidence. The court permits evidence that will be the result of the sampling method. It is not endorsing the method as it should still convince the trier of fact, which may be a jury or a judge. The court considers sampling as a method to get evidence and not the evidence itself.
In cases like this were proving fault and liability may be taken from other people, it is always better to use different methods of gathering evidence. A skilled lawyer knows this. They think outside of the box to prove your case, and they also make sure that the court knows that these techniques may be applied under the law in their presentation.
Whether you have a contractual dispute, or are involved in a estate litigation matter, contact Stephen Bilkis & Associates. We have exceptional lawyers who will be able to present your case suitably and accurately. To contact us, you can walk in any of our offices, check us online or call 1-800 NY – NY- LAW. We handle cases from New York and Long Island.