I have spent this week, the week we celebrate Martin Luther King Jr and his accomplishments during the civil rights movement, thinking about the very real parallels between that tumultuous time and where we are today in this country. Especially today, when I serving a sentence in a jail of sorts, I have been considering how King and his followers were constantly attacked. The attacks King and his followers suffered are not unlike the attacks that are visited upon those few who are standing up to defend consumers, fight for basic rights and the Rule of Law.
I am absolutely convinced that in the very near future, the sentiment of those who still do not fully appreciate what is happening in this country will shift in much the same way that the world now understands the profound wrongs that were visited upon nation prior to the civil rights movement. In much the same way that so many people finally woke up and became repulsed by the perpetuation of a system that was repugnant to the basic ideals this nation professed to represent, The People first will rise up to demand justice and economic rights, and then later those who are clinging to power will reluctantly yield.
My personal struggle comes at the very moment of a profound national crossroads. It has been rumored this week that the banks will announce a deal soon with the attorney generals from all across the country that have been investigating them. If any deal is indeed inked it will be a most dark day in this nation’s history. A deal between the banks and the attorney generals will indeed be the last nail in the coffin of the fiction that we are still a nation ruled by laws.
So as you think about all this, close your eyes for a moment and picture Martin Luther King sitting in a Birmingham jail and responding to a letter of complaint that he had recently received:
My Dear Fellow Attorneys:
While confined here in a foreclosure courtroom, I came across your recent statement calling my present activities “unwise and untimely.” Seldom do I pause to answer criticism of myself and the other foreclosure and consumer defense attorneys by those who do not understand that the work of defending the helpless is the highest calling of the legal profession. If I sought to answer all the criticisms that cross my desk, my secretaries would have little time for anything other than such correspondence in the course of the day, and I would have no time for constructive work. But since I feel that you are men of genuine good will and that your criticisms are sincerely set forth, I want to try to answer your statement in what I hope will be patient and reasonable terms.
I think I should indicate why I am here in foreclosure courtrooms, since you have been influenced by the view which argues against defending consumers in court, fearful that all these defendants want is a ” Free House”. I have the honor of serving and defending families and good people who find themselves down on their luck and facing foreclosure. Despite some of the unfair, unfortunate and misinformed characterizations of my clients perpetuated by some small segment of the population, my clients are not in foreclosure because they want to be in foreclosure. They are not unemployed because they do not want to work. They are not down on their luck because they sought out a tortured existence in this world. They are in foreclosure because they have no money. They have no money because there are no jobs. There are no jobs because their government has failed them. The industries and institutions that should be providing jobs and providing the money that would permit them to pay their bills and fulfill their obligations have closed down here at home and sent all the jobs offshore. For many of my clients, foreclosure courtroom is their last stop before they disappear into oblivion. They stand in courtrooms gripping onto their homes with white, bleeding knuckles, hoping against all hope that what they have heard about justice and fairness and equity and our nation’s court system really is true.
But more basically, I defend homeowners in court because injustice is here. Just as the prophets of the eighth century B.C. left their villages and carried their “thus saith the Lord” far beyond the boundaries of their home towns, and just as the Apostle Paul left his village of Tarsus and carried the gospel of Jesus Christ to the far corners of the Greco Roman world, so am I compelled to carry the fight for the Rule of Law beyond my own cases and clients. Like Paul, I must constantly respond to the Macedonian call for aid. Moreover, I am cognizant of the interrelatedness of all communities and states. I cannot sit idly by in Saint Petersburg and not be concerned about what happens in Birmingham. Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly. Never again can we afford to live with the narrow, provincial “outside agitator” idea. Anyone who lives inside the United States can never be considered an outsider anywhere within its bounds.
You deplore the defense of foreclosure cases and the Occupy protests that are taking place all across this country. But your statements, I am sorry to say, fail to express a similar concern for the conditions that brought about the demonstrations and the defense. I am sure that none of you would want to rest content with the superficial kind of social and legal analysis that deals merely with effects and does not grapple with underlying causes. It is unfortunate that demonstrations are taking place all across this country, but it is even more unfortunate that this nation’s power structure left the 99% with no alternative. What is playing out in foreclosure courtrooms and in the halls of government through this crisis we have all come to know as Fraudclosure is a sorrowful desecration of a court and government system that was once held up on every corner of this planet as the idealized model of mankind’s legal, social and economic order. We must now all acknowledge that this crisis reveals that these idealized notions were dangerous delusions and corrupt misrepresentations.
A most clear expression of this breakdown can be seen in the failed attempts by the failure of attorneys general from all across this country to fulfill their obligations to protect and defend the consumers that they swore a oath to protect and defend. It is terribly unfortunate that attorneys general from states all across this nation are meeting in secret with the banks and their henchmen and that they appear to close to finalizing some sort of deal. If the attorneys general that are supposed to be representing the interests of The People do indeed finalize a deal, it will truly be a deal with the devil. Such a deal will hasten our nation’s descent into a dark pit of white collar criminal lawlessness from which we will never recover.
In any nonviolent campaign there are four basic steps: collection of the facts to determine whether injustices exist; negotiation; self purification; and direct action. We have gone through all these steps in foreclosure courtrooms. There can be no gainsaying the fact that injustice engulfs our entire nation. Foreclosure courtrooms are probably the most clear expression of this injustice in the United States. The ugly record of injustice in foreclosure is widely known. Defendants in foreclosure have experienced grossly unjust treatment in the courts. There have been more violations of the fundamental principles of justice and equity in foreclosures than in any other aspect of our national existence. These are the hard, brutal facts of the case. On the basis of these conditions, homeowners and activists have sought to negotiate with the banks and institutions.
But the latter consistently refused to engage in good faith negotiation. Then, last September, came the opportunity to talk with leaders of banking community. In the course of the negotiations, certain promises were made by them–for example, they would review homeowners for loan modifications. On the basis of these promises, homeowners, attorneys and courts agreed to suspend most pending foreclosure cases. As the weeks and months went by however, we realized that we were the victims of a broken promise. A few temporary modifications were offered then just as quickly removed. As in so many past experiences, our hopes had been blasted, and the shadow of deep disappointment settled upon us. We had no alternative except to prepare for direct action like foreclosure trials, whereby we would continue the defense of homeowners and speaking out against the banks and the corporate elite as a means of laying our case before the conscience of the local and the national community.
You may well ask: “Why direct action? Why motions and discovery, foreclosure trials and so forth? Isn’t mediation a better path? You are quite right in calling for mediation. Indeed, this is the very purpose of direct action. Nonviolent direct action seeks to create such a crisis and foster such a tension that an industry which has constantly refused to negotiate is forced to confront the issues. It seeks so to dramatize the issue that it can no longer be ignored. My citing the creation of tension as part of the work of the nonviolent resister may sound rather shocking. But I must confess that I am not afraid of the word “tension.” I have earnestly opposed violent tension, but there is a type of constructive, nonviolent tension which is necessary for growth. Just as Socrates felt that it was necessary to create a tension in the mind so that individuals could rise from the bondage of myths and half truths to the unfettered realm of creative analysis and objective appraisal, so must we see the need for nonviolent gadflies to create the kind of tension in society that will help men rise from the dark depths of prejudice and racism to the majestic heights of understanding and brotherhood.
The purpose of our direct action program is to create a situation so crisis packed that it will inevitably open the door to successful mediations. I therefore concur with you in your call for mediations. Too long has our beloved court system been bogged down in a tragic effort to live in monologue rather than dialogue. One of the basic points in your statement is that the action that I and my associates have taken in foreclosure courtrooms is untimely. Some have asked: “Why didn’t you give the new mediation programs time to act?” The only answer that I can give to this query is that the programs and the plaintiffs must be prodded about as much as before. We are all sadly mistaken if we feel that these new mediation programs will bring any real changes without pressure on the banks to deal fairly and in good faith. While the new banks and servicers may be different, they are both corporate creatures, dedicated to maintenance of the status quo. I have hope that the banks will be reasonable enough to see the futility of massive resistance to mortgage modifications and solutions. But they will not see this without pressure from devotees of consumer rights.
My friends, I must say to you that we have not made a single gain in consumer rights without determined legal and nonviolent pressure. Lamentably, it is an historical fact that privileged groups seldom give up their privileges voluntarily. Individuals may see the moral light and voluntarily give up their unjust posture; but, as Reinhold Niebuhr has reminded us, groups tend to be more immoral than individuals. We know through painful experience that fair dealings are never voluntarily given by the banks; it must be demanded by the consumers that bailed them out. Some say, ” Be patient, pushing these issues is not well-timed.”
Frankly, I have yet to engage in a direct action campaign that was “well timed” in the view of those who have suffered unduly from the tortures of this obscene and unfair economy and its parasitic legal and political system. For years now I have heard the words, “Wait, a solution is coming!” It rings in the ear of every American citizen with piercing familiarity. This “Wait” has almost always meant “Never.” We must come to see, with one of our distinguished jurists, that “justice too long delayed is justice denied.” We have waited for since 2008 for the banks and Wall Street to start treating Americans fairly. The banks and Wall Street are moving with jetlike speed toward gaining extraordinary profitablity, but we still creep at horse and buggy pace toward gaining principle reductions or short sale approvals.
Perhaps it is easy for those who have never felt the stinging darts foreclosure to say, “Wait.” But when you have seen good families thrown into the street, when you have seen the banks kick down doors and change the locks with no court order, when you have seen law enforcement standing idly by and saying, ” it is a civil matter”, when you have seen court rulings that are repugnant to fundamental laws, when you have seen the bank and corporate executives reap unconscionable profits, when you have seen clients become sick and die due to the stress and pain of foreclosure and their economic situation, when you have seen single women who live in mortal fear that her front door may be kicked down for the third time, when you see children who have only known their parents suffering–then you will understand why we find it difficult to wait.There comes a time when the cup of endurance runs over, and men are no longer willing to be plunged into the abyss of despair. I hope, sirs, you can understand our legitimate and unavoidable impatience.
You express a great deal of anxiety over our willingness to aggressively pursue foreclosure cases, to stand up for basic laws and argue that certain foreclosure case law should not be followed. You express concern that we some of the recent case law should not be followed. This is certainly a legitimate concern. Since we so diligently urge people to obey the laws. One may well ask: “How can you advocate breaking some laws and obeying others?” The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that “an unjust law is no law at all.” Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man made code that squares with the moral law or the law of God. An unjust law or appellate case is a code that is out of harmony with the moral law and economic reality. A just law and a just outcome in foreclosure recognizes that the homeowners that the banks are using the court process to throw into the street have already paid the banks and institutions through trillions of dollars in tax benefits and direct profits. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust.
All homestead foreclosures, when the case is defended because the homeowner has already paid the bank his fair share through bailouts, handouts and direct political corruption. Let us consider a more concrete example of just and unjust laws. An unjust law is a code that a numerical or power majority group compels a minority group to obey but does not make binding on itself. This is difference made legal. By the same token, a just law is a code that a majority compels a minority to follow and that it is willing to follow itself. This is sameness made legal. Let me give another explanation. A law is unjust if it is inflicted on a minority that, as a result of being denied the right to vote, had no part in enacting or devising the law. Who can say that the banks, which have obscenely unequal bargaining power have passed laws that benefit themselves while forcing trauma and the expenses of their ill-conceived laws on the unrepresented taxpayer and consumer who is victimized by their laws?
Throughout this nation all sorts of devious methods are used to prevent the voice of The People from being heard and to silencing advocates and critics. Can any law enacted under such circumstances be considered democratically structured? Sometimes a law is just on its face and unjust in its application. For instance, I have been charged with abusing my First Amendment rights. Now, there is nothing wrong in having an ordinance which restricts speech. But such an ordinance becomes unjust when it is used to punish well-intentioned criticism of our court system and to deny citizens the First-Amendment privilege of peaceful assembly and protest. I hope you are able to see the distinction I am trying to point out. In no sense do I advocate ” free homes” as some do. That would lead to anarchy. One who seeks to defend a homeowner must be willing to counsel that homeowner to begin making what payments he can. I submit that an individual who correctly and aggressively defends the correct foreclosure case is in reality expressing the highest respect for law. Of course, there is nothing new about this kind of civil disobedience.
It was evidenced sublimely in the refusal of Shadrach, Meshach and Abednego to obey the laws of Nebuchadnezzar, on the ground that a higher moral law was at stake. It was practiced superbly by the early Christians, who were willing to face hungry lions and the excruciating pain of chopping blocks rather than submit to certain unjust laws of the Roman Empire. To a degree, academic freedom is a reality today because Socrates practiced civil disobedience. In our own nation, the Boston Tea Party represented a massive act of civil disobedience.
We should never forget that everything Adolf Hitler did in Germany was “legal” and everything the Hungarian freedom fighters did in Hungary was “illegal.” It was “illegal” to aid and comfort a Jew in Hitler’s Germany. Even so, I am sure that, had I lived in Germany at the time, I would have aided and comforted my Jewish brothers. If today I lived in a Communist country where certain principles dear to the Christian faith are suppressed, I would openly advocate disobeying that country’s antireligious laws. I must make two honest confessions to you, my fellow attorneys.
First, I must confess that over the past few years I have been gravely disappointed with other attorneys. I have almost reached the regrettable conclusion that the consumer’s great stumbling block in his stride toward fairness is not the banks or the servicers, but the attorneys who are more devoted to “order” than to justice; who prefer a negative peace which is the absence of tension to a positive peace which is the presence of justice; who constantly says: “I agree with you in the goal you seek, but I cannot agree with your methods of direct action”; who paternalistically believes he can set the timetable for demanding economic justice and the return to the Rule of Law in courtrooms; who live by a mythical concept of time and who constantly advises those who are suffering to wait for a “more convenient season.”
Shallow understanding from people of good will is more frustrating than absolute misunderstanding from people of ill will. Lukewarm acceptance is much more bewildering than outright rejection. I had hoped that the other attorneys would understand that law and order exist for the purpose of establishing justice and that when they fail in this purpose they become the dangerously structured dams that block the flow of social and economic progress. I had hoped that the other attorneys would understand that the present tension in the our courts is a necessary phase of the transition from an obnoxious negative peace, in which the consumer accepted his unjust plight, to a substantive and positive peace, in which all consumers wake up and start fighting back.
Actually, we who engage in the defense of consumers are not the creators of tension. We merely bring to the surface the hidden tension that is already alive. We bring it out in the open, where it can be seen and dealt with. Like a boil that can never be cured so long as it is covered up but must be opened with all its ugliness to the natural medicines of air and light, injustice must be exposed, with all the tension its exposure creates, to the light of human conscience and the air of national opinion before it can be cured. In your attacks on consumer attorneys and activists you assert that our actions, even though professionally and ethically appropriate, must be condemned because they slow down the court process.
I have even heard many good judges cry aloud, ” The Supreme Court and Legislature demand we conclude foreclosure trials in 18 months!” But is this a logical assertion? What if the legislature demanded that all criminal cases be concluded in some arbitrary period, but the prosecutors did not want to proceed with false evidence? What if family courts were underfunded yet the legislature demanded swift closure”¦and yet the couple that stands before you did not yet want their divorce”¦.would you still demand they conclude their divorce”¦or else? You speak of foreclosure defense as extreme. At first I was rather disappointed that fellow attorneys would see my efforts as those of an extremist.
I began thinking about the fact that I stand in the middle of two opposing forces in the economically depressed community. One is a force of complacency, made up in part of those who, as a result of long years of oppression, are so drained of self respect and a sense of “somebodiness” that they have adjusted to their condition; and in part of a few middle-class Americans who, because of a degree of academic and economic security and because in some ways they profit by segregation, have become insensitive to the problems of the masses. The other force is one of bitterness and hatred, and it comes perilously close to advocating violence.
It is expressed in the various Occupy groups that are springing up across the nation, the largest and best known being Occupy Wall Street. Nourished by the frustration over the continued existence of economic and social discrimination, this movement is made up of people who have lost faith in America, who have absolutely repudiated our corrupt form of government, and who have concluded that corporations are an incorrigible “devil.” Oppressed people cannot remain oppressed forever. The yearning for freedom and fairness eventually manifests itself, and that is what has happened to the American people. Something within has reminded him of his birthright of freedom and economic equality and something without has reminded him that it can be gained. I had hoped that the banks and institutions would see this need. Perhaps I was too optimistic; perhaps I expected too much. I suppose I should have realized that few members of the oppressor class can understand the deep groans and passionate yearnings of the oppressed people, and still fewer have the vision to see that injustice must be rooted out by strong, persistent and determined action.
But despite notable exceptions, I must honestly reiterate that I have been disappointed with the church. I do not say this as one of those negative critics who can always find something wrong with the church. I say this as a minister of the gospel, who loves the church; who was nurtured in its bosom; who has been sustained by its spiritual blessings and who will remain true to it as long as the cord of life shall lengthen. When myself and others started defending homeowners in foreclosure a few years ago, I felt we would be supported by other attorneys. Instead, some have been outright opponents, refusing to understand the foreclosure defense movement and misrepresenting its leaders; all too many others have been more cautious than courageous and have remained silent behind the anesthetizing security of their own offices.
In spite of my shattered dreams, I come to court everyday with the hope that other attorneys would see the justice of our cause and, with deep moral concern, would serve as the channel through which our just grievances could reach the power structure. I had hoped that each of you would understand. But again I have been disappointed. Yes, these questions are still in my mind. In deep disappointment I have wept over the laxity of the attorney class. But be assured that my tears have been tears of love. There can be no deep disappointment where there is not deep love. Yes, I love the attorney class. How could I do otherwise? There was a time when the attorney class was very powerful. In those days the attorney class was not merely a thermometer that recorded the ideas and principles of popular opinion; it was a thermostat that transformed the mores of society.
Whenever the good attorneys entered a town, the people in power became disturbed and immediately sought to convict them for being “disturbers of the peace” and “outside agitators.”‘ But the attorneys pressed on, in the conviction that they were “a colony of heaven,” called to obey the Rule of Law rather than man. Small in number, they were big in commitment. Things are different now. So often the attorney class is a weak, ineffectual voice with an uncertain sound. So often it is an archdefender of the status quo. Far from being disturbed by the presence of attorneys, the power structure of the average community is consoled by the attorney class’s silent–and often even vocal–sanction of things as they are.
But the judgment of The People is upon our court system as never before. If today’s court system does not recapture the spirit and integrity of the early courts, it will lose its authenticity, forfeit the loyalty of millions, and be dismissed as an institution with no meaning for the twentieth century. Every day I meet young people whose disappointment with the church has turned into outright disgust. Perhaps I have once again been too optimistic. Are attorneys too inextricably bound to the status quo to save our nation and the world? Perhaps I must turn my faith to the highest called among the ranks, the attorneys above the other attorneys, as the true ekklesia and the hope of the world. But again I am thankful to God that some noble souls from the ranks of attorneys have broken loose from the paralyzing chains of conformity and joined us as active partners in the struggle for foreclosure justice and basic rights.
It is true that the courts have exercised a degree of discipline in handling the foreclosure crisis. In this sense they have conducted themselves rather mechanically. But for what purpose? To preserve the system of foreclosure. Over the past few years I have consistently asserted that the vast magnitude of problems in the pending foreclosure files currently filed demands that most be dismissed in order not to soil the entire court system’s integrity. There was indeed a clearer path out of this wilderness many years ago when all of these problems were first so clearly demonstrated, but those in power failed to heed the warnings and step into the light The same path still exists, but it has certainly grown much longer. The path is quite simply a return to respect for the Rule of Law and a greater respect for the sacred function of our nation’s court system, judges and attorneys. For far too long, our nation’s third branch of government has sat prostrate to the legislative and executive branches then, with its backside exposed, bent in supplication to business interests that seek to do such injustice to all people. This must not continue.
Never before have I written so long a letter. I’m afraid it is much too long to take your precious time. I can assure you that it would have been much shorter if I had been writing from a comfortable desk, but what else can one do when he is sitting here in a foreclosure courtroom, other than write long letters, think long thoughts and pray long prayers?
If I have said anything in this letter that overstates the truth and indicates an unreasonable impatience, I beg you to forgive me. If I have said anything that understates the truth and indicates my having a patience that allows me to settle for anything less than brotherhood, I beg God to forgive me. I hope this letter finds you strong in the faith. I also hope that circumstances will soon make it possible for me to meet each of you, not as an antagonist on one side of this profound economic and social rights battle but as a fellow attorney all on the side of justice and the Rule of Law.
Let us all hope that the dark clouds of injustice will soon pass away and the deep fog of misunderstanding will be lifted from our fear drenched communities, and in some not too distant tomorrow the radiant stars of love and brotherhood will shine over our great nation with all their scintillating beauty.
Yours for the cause of Peace and Brotherhood, Matthew Weidner
And I especially encourage you to read Luther’s Letter From A Birmingham Jail
