Jan 24, 2020
Lay people believe that being right is enough. Good trial lawyers know that victory comes only in that moment with the judge or jury in which they have established a connection and can utilize that connection to make a credible argument that encourages or even forces a favorable decision. Very few lay people can achieve that.
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A lot of people are doing a lot of investigations and analysis about foreclosure scams. They end up with documents, audio recordings and other evidence of wrongdoing. Then they come to me with their shoebox of sundry “evidence” and want me to make sense of all of it.
So the problem is that if I actually review all of that I am concerned that all I will see and hear is stuff that makes us mad but doesn’t do us any good in terms of pursuing a strategy that might actually get some results — as opposed to basically venting our frustration. and that costs money that would be better spent pursuing a potentially successful strategy.
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And believe me I get it. Outright lying in oral argument, testimony and in “facially valid” documents is the scourge I deal with daily in my efforts to assist homeowners. Unfortunately even proving the lie won’t necessarily make the judge change its directions and rule for you. AND proving something was a lie is not so easy.
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Reference to other documents or statements are helpful but not dispositive. Even when confronted with two diametrically opposed statements from their client lawyers will argue that the context was different or that minor word changes make the conflicting statements compatible. That is what lawyers do.
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So the real question is what is your next move and how do we select the best tactics to give you the best chance at gaining traction in court? Courtroom battles are only partly based upon justice — who is right and who is wrong.
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The other part which is dense to laymen is procedural and the laws of evidence.
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As to evidence the main thing we are confronting is court bias for the banks based upon the sanctity of contract, and legal presumptions that are centuries old arising from what appear to be facially valid written instruments.
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Add to that mix that we don’t ever have any other competing party asserting the right to be paid, and you end up with a heavy lift — rebutting an assumption and legal presumptions that favor the view that there was a loan, you owe the money, you didn’t pay the money, and you agreed to forfeit the property in the event you didn’t pay.
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Initial efforts to rebut those assumptions and presumptions are almost always met with extreme skepticism — partly fueled by the belief by lawyers and homeowners alike that those assumptions and presumptions are justified in the context of securitization of residential mortgage debt. Hence the defense is not confident, focussed or assertive and relentless.
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These cases can be won and they are often won — but only by those who understand the rules and who are willing to go the entire distance (i.e., trial) and to do all the things along the way (pretrial motions and discovery) that are necessary to raise the inference that the claimant does not have the goods for a real claim.
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Going it alone, pro se, is risky business because lay people have no idea how that is done. But our system is, for better or worse, based upon the ability to present claims and defenses in the most credible way — and that usually requires a lawyer to do it. Pro se litigants have won through persistence but only if they stumbled upon some tracks that at least partially rebut the assumptions and presumptions being used by the court.
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My work can often diminish the cost of defense but I can’t eliminate it. Because of all the experience I have as a trial lawyer and especially the defense of foreclosures I can often accomplish in one hour or even a half hour what it might take another lawyer 3-4 hours to accomplish. But that isn’t always true. Some trial lawyers don’t need my help. They understand how to focus in on the bests defense strategies and what tactics to use to get traction. And they win, but not all the time.
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Where the resources are limited, which is usually the case in foreclosure defense, the homeowner is forced to make choices as to what work will be ordered and then hope for the best. Just remember that it is extremely rare to gain traction simply based upon the revelation of one particular fact, or the filing of one specific pleading or memorandum that is one for the ages.
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Actual tangible success is based on credible presentation and persuasiveness which must be assessed by the presenter (attorney or pro se) as the case proceeds in real time requiring split second decisions and changes ion approach. Persuasiveness is largely a factor of changing tone or emphasis based upon feedback from the court.
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If you have a series of rulings that are negative. that forms the law of the case and the more the rulings the further you are behind the proverbially 8 ball regardless of how unjust the result. Theoretically your chances of success are still present — but they are diminishing with each negative ruling. To assess your prospects for success you must realize that the odds were stacked against you from the beginning, and that now they are even less.
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I’m not trying to dissuade you from pursuing your rights. You probably are the victim of illegal and perhaps criminal behavior. But I want to make sure you understand the risks. This is why some homeowners choose to settle with their tormentors rather than fight with them. There is no right or wrong decision.
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The decision to fight or walk away or settle is strictly a personal decision based upon one’s tolerance for risk, ability to finance a coherent defense, and the time and energy to devote to saving the home rather than pursuing other things in life.
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