Please Engage Brain Before Activating "Word for Lawyers"in HPN Blog
So, it's been a week from hell already. I figure I may as well try to keep the good times rolling for as long as possible, so here goes nothing.
For as intelligent as they are the majority of the time, at least some attorneys can be complete and total idiots. Now, it may not be entirely their fault. I know many who are genuinely honest, well meaning, good people who feel bad when a potential client comes in to the office and says that no one else would help them, they have little or no money, and they have a short window in which something needs to get done. Many of these same attorneys will take a case with the honest intention of helping the client – as opposed to simply chalking up another fee. I commend each and every attorney who has taken a case on within those parameters. The problem with that, is when the attorney is honestly in over their head, has no real reference or support system, and simply cobbles together an argument for a court, calling audibles whenever and wherever necessary without giving thought to the larger ramifications that may or may not be affected.
Case in point, a potential client recently called seeking help with an appeal on an eviction action that initially went her way but was reversed by the district judge on a motion to reconsider. She's 42, single, disabled with two pre-teen sons. She, and subsequently her family, has lived in the home for all of her life. Divorce, break-ups, bad economy and health all took their toll on her and she ultimately fell behind on her mortgage. She'd be able to stay and catch up with a modification but, like many others, got yanked around for a year or two before being denied for whatever reason. Ultimately, she was foreclosed upon.
Having felt that something wasn't right about her situation, she was able to hire an attorney strictly to fight the writ of possession and post-foreclosure eviction. Not an easy argument in New Hampshire but one that can successfully be made. I know this because a case with many similar parameters was recently decided here. The litigants were pro se to boot, having lost their home to foreclosure at the hands of same attorney that ultimately tanked my own litigation. They fought the eviction, filed a quiet title action, the district judge ruled in their favor and bumped the case up to Superior Court where it crawled along for more than two years before the homeowners received a favorable, albeit messy, ruling from the judge and had title to the property restored in their name.
The attorney that handled the eviction for my potential client strictly addressed landlord-tenant issues as opposed to encompassing foreclosure, title and standing issues along with the case. Had he done so, since they initially won their case, I'm confident that the District Court judge would have bumped this case up to Superior Court as well, as District Courts do not have subject matter jurisdiction over foreclosure matters in New Hampshire. Her chain of title was broken. The Assignment of Mortgage filed at the county registry was fraudulent. Her promissory note was purportedly securitized into an SG Securities ABS 2006-FRE2 trust. The Assignment of Mortgage was created February 20, 2009 by MERS.
The problem, here, is that the window of substitution for the trust closed in 2008. So whether or not her note was properly securitized, and the arguments still rage in the court systems across the United States as to whether borrowers are third party beneficiaries to the trusts or have any standing to challenge the terms of the trust, her Assignment of Mortgage was bogus. I would have been willing to let the attorney that took her case off the hook because, at first glance, he appeared to genuinely be trying to help the client out to the point that he only charged the client a few hundred dollars to handle the landlord-tenant case. But then I discovered that the attorney also owns a title company and handles both private and commercial foreclosures as well. Knowing this, and, admittedly not being familiar with all of the details of the case or his interaction with the client, I have little tolerance for his actions and, to be perfectly honest, I have to question his motives for taking the case to begin with.
In addition to all of this, the attorney in question did go as far as helping the client file the initial paperwork for an appeal to the state Supreme Court. Having been there myself, this is neither a simple not inexpensive endeavor for anyone but especially not a pro se litigant. While the attorney had put in writing that he was terminating his representation of the client, the client still somehow hat the impression that the attorney would continue to represent her during the appeal. As interacting with attorneys is something that we do, time being of the essence for the client as there is only a thirty day window to appeal and, in this instance, the appeal is discretionary, after obtaining authorization for my potential client I contacted counsel's office to see if it would be possible for them to forward the initial complaint and pleadings to me. If the client had been boxed in by whatever arguments the attorney did or did not raise during the landlord-tenant action, there would be no reason or grounds to appeal to the state Supreme Court. That was, I believe, last Tuesday. It's now a week later. No contact from the attorney so seven more calendar days have ticked off and, unfortunately, the courthouse is roughly two hours away otherwise, I'd go examine the case file myself.
So, I guess the point I'm trying to make is that, while I don't know all of the details of this particular case, the number of times that I see, hear and/or read about attorneys arguing cases for which they have zero real world experience is, at minimum, alarming. With regard to foreclosure defense cases specifically, they are nothing if not complex. If the area of law is of interest to you or if you simply have a client looking for counsel after everyone else has turned them down and you feel bad for them, if you don't have at least a basic understanding of all of the moving parts of a foreclosure defense then, at the very least, make the potential client aware of that. In some cases, you may be surprised to learn that the client actually possesses a fair amount of knowledge and can actually make your job at least a little easier. In this particular case, had the proper argument been made by counsel, it would have been possible to save this woman's home. But because it was not, she and her children will be looking for a place to live shortly.
If you have no idea how to handle a foreclosure defense action but are solid in your court procedure, that may be enough to get the ball rolling but start identifying potential resources for assistance as soon as possible. You're going to need them. You may even find someone who actually knows more about foreclosure defense than you do and they may not even have a law degree. The problem with these cases is that, no pressure, but your client is literally betting their house on your performance and, if you aren't on top of your game, you will lose because, I guarantee that, while opposing counsel may just be of the local foreclosure mill variety, they write motions and briefs in the sleep. They've made the argument that they are going to use against you a gagillion times. They've most likely refined it down to a Word or Acrobat interactive template. If you don't know the foreclosure game, they will wipe the court floor and polish the woodwork with you.
Bottom line, if you aren't familiar with the case subject matter, don't think that you can fake your way through it, especially with regard to foreclosure defense. If your client appears knowledgeable and willing to help, they may be a great resource. If not, they may know someone or you may be able to reach out to someone who specializes in one or more aspects of foreclosure defense litigation support. Much like every other profession, some consultants are better than others. Some are, frankly, scam artists simply trying to make a quick buck off of the misery of others. But the better ones will have been around in one incarnation or another for a fair amount of time. And they won't have any problem with transparency and their knowledge of the topic will be fairly evident within the first five minutes of a conversation.
Not every home can or should be saved. Unfortunately, there are legitimate foreclosures taking place. But with the sheer volume of foreclosures that have been and continue to be conducted, there is absolutely no reason why a borrower, regardless of their payment history, should lose their home to a fraudulent foreclosure. Before you can even begin to think about making the “deadbeat borrower” argument, you have to get past a little thing known as legal standing. And as long as no entity attempting to foreclose has that, then it doesn't matter whether the borrower is current or in default. Because, like it or not, there is a rule book by which everyone needs to play.