What to do about Court bias

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I am in constant “conflict” with my supporters who continue to rail about bias from the bench. They are right, it is there, but their insistence that any judge who has investments that could be affected by the decision of the court in a foreclosure case is probably wrong — for both procedural and substantive reasons. I might add that I know a lot of judges and not one of them takes any joy in entering orders that permit a foreclosure proceeding to go forward to the forced sale of homestead property.

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First, I agree that a judge with financial interests in the outcome of litigation should recuse themselves or be removed for cause. So that much I agree. And I agree that in some cases judges are acutely aware that they have direct interests in both the stocks of investment banks and their “mortgage bonds” through their retirement programs. But without actually being able to inquire about these issues the leap toward disqualification seems to be unfounded in terms of the legal process. Unlike the #MeToo movement, an accusation is not enough. The fact that the investment exists is not proof that the investment is in the mind of the judge, is material to them or will defect their decision. You need to do more if you really want to challenge them.

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There are two challenges. One is a motion to recuse which is heard by the same trial judge who is hearing the motion and the other is a motion to remove for cause which is heard by another judge. In both cases, presentation of evidence is required in order to survive denial or dismissal of the claim. I probably don’t need to remind anyone that getting one judge to agree that a fellow member of the bench should e removed from a case is an extremely high bar. We have a system and that is how it works.

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I don’t think (comments invited) that there is any impediment to questioning a judge about his financial holdings and whether he can be fair and impartial in the case at hand. It just isn’t done. I think it is time we start, and just the act of asking will awaken the judge to the potential problem which I can assure you, none of them see. But it is a bold move and doing your homework and being prepared to argue the issue is vital. But don’t do it without specifics in the form of evidence that is admissible. The system does not tolerate such motions on any case, civil or criminal.

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The interesting thing is that if the judge refuses to allow the hearing to proceed, you could argue that the refusal is the equivalent of taking the 5th amendment as a shield. In a civil action, like foreclosure, that could raise negative inferences. You will find yourself in plenty of hot water but it might be worth it.  It is a rare judge who won’t take it personally. BUT, if you don’t do it timely — at the very start of legal proceedings, you have waived it I think in all U.S. jurisdictions — unless you promptly bring it to the court’s attention after the discovery of evidence that you could not have obtained before. Like many such motions, timing is everything.

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Second, I think that very few judges actually make the connection between their retirement account and the case of foreclosure. I have spoken with many of them and the ones that have any reasonable degree of financial sophistication basically think that one foreclosure is not going to make any difference to their financial condition.

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Third, with a couple of very rare historical exceptions, no judge accepts the premise that any of the foreclosures are illegal, immoral or criminal. Hence no judge actually sees a defense narrative in one case as potentially destroying the entire infrastructure that investment banks falsely claim as a securitization scheme. Any perceived variation from any rule is perceived as damnum absque injuria — an injury with no harm. And that is why I have been harping on the same point since 2006 — do not admit anything, including the idea that the proceeding invoked is a foreclosure. It isn’t a foreclosure if there is no debt being enforced.

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Thus the way to win a case is not to attack securitization in general but rather to show that the claimant that is named as Plaintiff in judicial actions or beneficiary in nonjudicial actions does not have or will not show confirmation that the debt exists, and that it is owned by the claimant who has full authority to administer, collect and enforce it. Knowledge of the reality of the pan of creation, issuance and selling securities is helpful in deciding on a strategy for a case but it rarely is the deciding factor in any of the cases won by homeowners.

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