I agree with you that there are several uneven aspects of the transcript from the Fastiggi case. While I cannot speak for ka, my own reading of the transcript and Bill's post was that Bill was celebrating the superior job that George Gingo did in impeaching the plaintiff's witness.
I think that there is a valuable lesson there and it is totally consistent with what Mr. Roper has been teaching at the Forum for some time.
On the other hand, the Fastiggi case also shares some serious strategic defects with Cuenca.
But these do not appear to me to be those that you have identified.
Rather, like the Cuenca case, there seemed to be a fascination with defensive avenues which were both unnecessary and a distraction.
Proving unclean hands is a challenge. This is an affirmative defense upon which the defendant bore the burden of proof.
But if the plaintiff cannot make out a prima facia case, then it is GAME OVER. There is NO NEED to prove unclean hands or any other affirmative defense.
Attorney George Gingo made a very serious strategic miscalculation in the Fastiggi case. This miscalculation underscores the reason why Mr. Roper remains the leading luminary nationally in foreclosure defense. Smart attorneys employ his guidance. Arrogant fools experiment and LOSE cases where they snatch defeat from the jaws of victory.
In the Fastiggi case, it is my understanding that neither of the defendants John or Kristy FASTIGGI were identified on the plaintiff's witness list for the trial. Neither was subpoenaed to appear and in Florida, neither had a duty to voluntarily appear in person at trial in a civil case.
Once the plaintiff's sole witness was impeached, the FASTIGGI's had WON the case. Impeachment of this witness could have been reasonably expected given the change in servicer.
But due to the fascination of the attorneys with other possible defenses, including unclean hands, both Mr. and Mrs. FASTIGGI attended the trial.
After the plaintiff's sole witness was disqualified, the plaintiff's attorney called Mr. and Mrs. FASTIGGI to the stand and used the defendants to prove up most of the documents which had been otherwise excluded!
There are actually two lessons there for foreclosure defendants.
First, if a pro se defendant can get PAST SUMMARY JUDGMENT, it is BETTER to employ an attorney for the trial! A pro se defendant is going to HAVE TO ATTEND TRIAL. A represented defendant in a civil case does NOT ordinarily have to attend a trial unless subpoenaed to do so.
Second, if NOT subpoenaed to attend and NOT on the plaintiff's witness list, a defendant who is WELL REPRESENTED is usually BETTER OFF not attending the trial. This is particularly true where (a) the defendants were never deposed and never required to answer interrogatories or requests for admissions, and/or (b) the plaintiff is likely to face a serious proof problem, as where there has been one or more transfer of servicing after the suit is filed.
The NEW servicer is always going to have some difficulty authenticating exhibits and business records. Bill has done the Forum a service in identifying a case where the transcript shows this disqualification done well.
Unfortunately, in Fastiggi the defendant's attorney failed to think this problem through and had his clients IN ATTENDANCE. The Judge seems to have RULED AGAINST the Fastiggis and this might have been avoided if the Fastiggis had simply gone on vacation. (The matter might still be reversed on appeal.)
There are a LOT of plausible defenses to a foreclosure action. Some are more potent and easier to prove than others. Sometimes, winning involves LETTING GO of defenses which might be difficult to prove, which are unnecessary or which might actually CONFLICT WITH the WINNING defense.
I would encourage Forum participants to focus on how to IMPEACH and DISQUALIFY the plaintiff's witness. This is something that the defendant needs to help his attorney do. Every business record that is subject to exclusion by impeaching the sole witness put on by the servicer could still be proved up by putting the defendant(s) on the stand.