The Foreclosure Trial That We Won On Behalf of Our Client Last Week
Over and over again, defendants in foreclosure are attacked and castigated in courts, accused of “delaying” foreclosure….although quite frankly now most anyone of any consequence knows that it’s largely not homeowners who are delaying things….or if we are “delaying” things it’s because the banks just absolutely refuse to respond to basic inquiries or provide the information they are required to provide.
I could set cases all day long, every day and get cases dismissed because the banks refuse to litigate properly..and we do..but we’re not given nearly the same accommodations as plaintiffs. The reality is, courts are bending and twisting…giving breaks and assistance that defendants have never seen.
Seriously, has there ever…I mean ever been a judge that uttered evidentiary assistance to a homeowner….”Mr. Weidner, your objection on foundation is not quite correct, but I would sustain a hearsay objection”?
The answer of course is….”NO!”…and yet every day…in nearly every trial, when plaintiff attorneys are locked, judges provide the explicit directions that get them out of the hole….”Mr. Bank attorney, your witness needs to tell me how she knows these business records are kept in the ordinary course of business…you know, that “boarding” process”.
Or, as one judge did to me recently when I had the bank backed down into a fatal problem, “I’m just gonna give the bank a mulligan so they don’t lose”
THE COURT: Well, then, in that case, it seems
1 to me that they have an obligation to prove that
2 they are the, you know, the plaintiff. It’s a very
3 fundamental standing issue that, you know, is pretty
5 I don’t know, you know, if this is the kind of
6 thing that should be subject to just a mulligan
7 or — you know, it seems to me that continuing it is
8 hazardous at best. I’m going to be back here
9 periodically, but I’m not always going to be here,
Huh? Judge…this plaintiff comes to court, they cannot prove what you say is a “fundamental” problem and you’re just gonna let them walk away….with a “mulligan”? Yep.
I recently had another really ugly example…..a case filed in 2008. A trial a few months ago. After the plaintiff closed their case…after I spent the entire trial helping them, and in the words of the judge, being,
“very generous with your opponent”
I revealed to the judge that the real problem with their case was the fact that the plaintiff had failed entirely to name the correct property owner. That’s not just kinda basic…it’s the foundation upon which all of foreclosure is built. It’s just crazy to think that in all the years of litigating the case, the plaintiff didn’t have the most basic element down…and when presented with this gross violation of basic procedure, the court thought long and hard about granting them a….a mulligan.
Well, I’m pleased to report that after months and months of due consideration, the court announced that it would not do such things….and dismissed this very old case.
The trial started in October ends here at the end of December.
Properly defended cases can…and should be dismissed.