Why Not Recuse the Judge for Bias?

The process is simple and frankly most of the orders denying the motion for recusal are probably defective. So you end up facing the same Judge whom you have already accused of being biased. Besides that obvious fact that you won’t get the result you want, there is another more important reason. You are most probably wrong.

Now that I have returned to actual trial practice as a foreclosure defense attorney, and as a lawyer who represents lenders and small banks who ended up holding fraudulent, worthless mortgage bonds, I have appeared before many judges. The spread has been both geographical and chronological, gender and cultural. I have not found a biased judge. I have not found a judge who has it in for borrowers. All Judges harbor perceptions and opinions, but I have found universally that the Judges understand they are there to call balls and strikes and not to determine the outcome of the case until it is really over.

As with all professionals, some judges are better than others in their experience, demeanor, education and training. Some understand the rules of evidence better than others, and some work harder than others. Wednesday I had a judge who knew a little about Foreclosures but was obviously willing to learn more, and who was actively researching on his own while the two sides battled out the legal arguments. I didn’t like some of his rulings and on some of his negative rulings I was compelled to agree because of his reasoning and on other negative rulings, I think he was wrong and preserved my rights on appeal. Mostly my objections were sustained. I think the problem is that most foreclosure attorneys fail to object timely and waive the issue.

The truth is that Judges don’t care about you or your case and they are not required to care. If they actually did care about your case in the he way you want then they would be biased — toward you. They don’t know you and they have no stake in the outcome of the case in most cases. I know many judges personally as well. They have varying views, none of which actually prejudices a decision in any court action.

So except in rare cases, look to yourself and your presentation, look to your own preparation, demonstrative charts and exhibits, and establish that the homeowner is not using the system to obtain a windfall, an unfair result, and start proving that it is the pretender lender is attempting to achieve a windfall — with real evidence and really proves your point in the one case you are litigating — or the consolidated cases you are litigating. If the judge rules against you it might just be that you didn’t make your point persuasively. If he or she rules against you it might just be that you failed to explain your point well enough for the judge to understand. If you lost it might be that you didn’t prepare well enough on the rules of evidence and burden of proof.

The prima facie case of the Plaintiff is really quite simple for the pretender lender unless you can find some facially defective elements in the mortgage, the origination, or the assignment. If a defect isn’t obvious on the face of the documents you are going to have the burden if proof change to you. The voir dire of the witness and the objections during the direct examination of the corporate representative might not have been used to their best advantage to start educating the judge, realizing that in most cases there is no magic bullet that is going to win your case.

This is where a title and securitization report, like the one I offer on the LivingLies store at www.livingliesstore.com, give direction to the defender, the lawyer the pro se litigant. You need to know where you are going with your questioning and why you are asking a particular question. If you don’t, then an objection from opposing counsel on relevance will be sustained because you were unable to explain why it is relevant. How many times did you prepare and run through the opening argument, the closing argument, the questioning of witnesses?

I find that if I interpose a real objection based upon credible grounds that it is sustained more than it is overruled. I have moved several cases from a losing track to at least a fair chance tract — not because the judge thinks borrowers should win, but because I raised relevant objections that were based upon a credible foundation — as to the specific piece of evidence being proffered by the other side or by me.

Stop taking it personally. Nobody in the courtroom knew your name before your case was called and few remember it after the hearing is done.

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