The author of this post is an author and consultant to attorneys (and a paralegal) on real property matters and his comments (especially in this post) are of his own opinion and not that of others in the legal system. Those who wish to obtain legal advice must ferret out competent legal counsel and retain them while monitoring the activity of those representing them in the maze of confusion we call “the American legal system”. This is his humble opinion and not legal advice.
I am constantly getting letters and emails from people who are “getting nowhere” using the services of attorneys. They’re either being overcharged or under serviced, sometimes both. What’s “fair” (a liberal term) in the “legal system” (conservative in nature, for the most part) will not be achieved a majority of the time. Many litigants (or wannabe litigants) attempt a feeble shot at going pro se, which can spell doom if you later decide to retain counsel after you’ve already screwed things up.
The legal system is rigged to benefit those who can afford to play in it. I don’t care what any attorney tells you, if you don’t have money to pay them, what justice is “served” becomes limited in nature. I have only found a handful of attorneys that I would consider to be “competent” to handle real property law matters and I’ve been researching this area of law for over 10 years. That doesn’t make me an expert either. I actually have an attorney who IS an expert witness in real property matters that many attorneys who are litigating foreclosure cases will NOT call to the stand to testify because it “might upset the judge” which they have to appear before regularly. So the client loses his foreclosure case. This happened last month in a courtroom in Tallahassee, Florida. The attorney for the homeowner clearly had the bank and its witness in a vice, then opted NOT to “close the door” using his own witness to “slam the bank’s lawyers” for bringing false and misrepresentative statements on the Court. This is what happens when attorneys DON’T DO A THOROUGH JOB because they lack the smarts, the sensitivity or at least, common sense, as to HOW TO “tighten the noose”. Remember, most winning cases have to be appealed. Cases which have implications of criminal behavior by opposing counsel may never see an appellate court (but may rather be settled out of court, many times to the benefit of the homeowner) … or even the light of day, if they are litigated properly.
In other cases, clients are paying attorneys a monthly fee (in addition to a hefty retainer) and not getting proper billing statements as to WHAT work is being done and HOW many hours it took to accomplish said work. Some attorneys take fees specifically to conduct depositions and then don’t take them (for whatever reason). Whenever the client asks the attorney to supply them with a statement on account, the attorney rebukes them, makes them feel like a debtor in a debt collection action, or strong-arms them in a legal stranglehold of the attorney’s own making. Justice benefits those who work in the “system”. If an attorney is holding you “hostage”, you may wish to consider replacing them.
It’s no wonder I’m seeing an uptick in pro se litigation. It’s no wonder I’m seeing more and more pro se litigants lose. Pro se litigants generally did NOT go to law school. They don’t trust attorneys … but they’ve never argued a case. They are like electricity (they want to take the path of least resistance). As long as there are banks out there trying to steal peoples’ properties, the American legal system will be afflicted with burgeoning dockets and implicit behaviors, both from the bench and the attorneys’ tables. Pro se litigants wandering into these venues uninformed are more than likely going to get crucified.
The American judiciary (both state and federal) have various “agendas”. I have found that you have to research the judge you’re appearing in front of (what cases they’ve ruled on; how many were appealed and reversed; are they pro-bank, etc.). You will never know whether you or your attorney “coulda, shoulda, woulda” been able to have succeeded unless you know who the referee is. If the referee pays monthly on his mortgage, you can bet they’ll want you to do the same. You then have to be able to handle “agenda questions” like:
(1.) When’s the last time you made a house payment? and
(2.) Are you in default?
When you hear questions like this from the bench, the judge’s agenda is: “This is my courtroom and I will find facts to determine WHO loses their home today!” Most if not all pro se litigants will blindly think that the judge is entitled to these answers and will freely give them, not realizing that the judge’s agenda is to “clear his docket” as quickly as possible and/or is pro-bank. The judge will get YOU to admit to these questions so he can “close the door” on you and move onto the next case.
I have read numerous cases where the court record indicates that the homeowner admitted they were in default. What horseshit is that? HOW do they know they’re in default? Is it up to them to prove they’re in default or is it up to the bank to prove they are in default? If a REMIC is involved, I’ve seen court records (and talked to attorneys who have seen court records) wherein the BANK’S SERVICER actually made the payments for the homeowner when the homeowner couldn’t make them, so then, WHEN and WHO made the house payment becomes an issue that most homeowners (pro se) and their attorneys (who aren’t in the know because they don’t have, or take, the time to do their research) miss that argument altogether. Did you get that? THE SERVICER MADE THE PRINCIPAL AND INTEREST PAYMENTS FOR THE HOMEOWNER, then went into court and lied to the judge and told the judge the homeowner was in default, when in fact, the REMIC’s investors were getting paid every month!
Cases are won and lost based on a series of arguments, misstatements and missteps. If the judge in your case is largely moved to rule against you based on emotional ploys by the bank’s attorneys (use of the term “deadbeat”; “They’ve lived in this house for 10 years without making a payment your Honor and we want our house back now.” … that sort of thing), then you are sunk before you walk in to their courtroom. It helps to attend trials in their courts if at all possible (some judges don’t allow anyone but the actual litigants on the docket to appear in their courtroom for a reason) to see how they act and react to the various arguments. Conversely, if you don’t do your homework (or your attorney doesn’t do his), you’ll lose anyway. This is why over 95% of all homeowners who are facing foreclosure RUN AWAY! This is why we have so much shadow inventory.
Not all attorneys are competent and honest. If it’s your house we’re talking about here, then the question becomes, “What are you willing to do to protect it from unscrupulous or unlearned attorneys?” If an attorney that was representing me called me “out of the blue” and said I needed to send him $5,ooo right away, I’d ask them what the money would be used for. If I didn’t get what I paid for, I’d demand the money back or get another attorney. Attorneys should provide billing statements to their clients; however, most sole practitioners have no time for that, which is the “downside” to retaining them. I would not want an attorney who only specializes in personal injury cases to represent me in a foreclosure matter because they haven’t won any cases in those kinds of forums; it isn’t their specialty; and they lack the knowledge to be able to defend against unscrupulous bank attorneys in those “shark-infested waters”. That’s like hiring a dentist to do brain surgery on your next of kin.
I am not an attorney referral service. Most states require you to be licensed to have an attorney referral service. Most people do not ask an attorney how many cases they’ve won in a particular area. I can recite the names of attorneys who have won quiet title actions; however, when you then dissect how many were tax deed cases versus the harder-to-accomplish quasi in rem foreclosure cases, the number of successful attorneys diminishes ten-fold (at least what we know from the court record). You have to vet the attorney to make sure you’re getting what you pay for. You have to discuss with them how many cases they’ve won based on what causes of action.
Many cases don’t make the court record (by design). We already have learned this through other honest attorneys’ publications, where they have challenged certain legal publications’ decisions to only put in cases that favor the banks and not pro se homeowners (or in the alternative) or the more competent attorneys’ wins. This is another unwritten fallacy of American jurisprudence. As a result of closed-door settlements and sealed pay-offs, most homeowners do not know WHO won the foreclosure cases and why (because they were deliberately hidden from public view). A classic example is that of Bank of America trying to get a federal bankruptcy judge to “delete” the massive case against them, which the judge refused to do Sundqvist-Memo-Opinion and rightfully so. Here, we have an honest judge that wants to do the right thing by not just the homeowner, but also the public at large.
Pro se litigants not only miss filing deadlines … but when it comes to pleading cases, they don’t know how to plead cases. Take for example one appellate decision out of Texas: In this particular instance, the author of the pleading (the homeowner) decided to make use of quotes out of my book Clouded Titles, which is a book, not a legal primer in which to quote diatribe to bolster your legal arguments:
Brown v BANA_Tex 5th App Dist No 05-12-01382-CV (Nov 25, 2013)
It does not bother me that the Texas 5th Appellate District knows who I am, but the fact the homeowner extensively quoted my research (as shown on Page 4 of the ruling) even stymies me. What’s worse, the term “robosigning” has more of an emotional connotation to it, sort of related to fraud claims, which have also fallen on deaf ears in the courts, as in the Texas case of Reinagle v. Deutche Bank National Trust Company: Reinagle v Deutsche Bank Natl Trust Co, 5th App Cir No 12-50569 (Jul 11, 2013)
I put this stuff in here to show you the following:
(1.) Homeowners get so bent out of shape that they use stuff in their pleadings that they shouldn’t;
(2.) They do not attack the sufficiency (or the lack there0f) of the other side’s pleadings;
(3.) They express their complaints using meaningless allegations, rather than defeat the other side’s attempts in making unfounded declarations without objection; and
(4.) They quote from my book, which is like letting stuff out of your research arsenal that is meaningless to the Court.
To prove a suspect robosigning issue, one would have to take depositions of everyone involved in the creation and execution of the document to see who ordered it; who acknowledged it; who typed it up; where it went to after it was recorded; what powers of attorney are connected to it, etc. Taking timely depositions in a court case is vital to its success. Generally, I’m seeing civil conspiracies pop up as the result of document manufacturing; however, failing to depose all of the involved parties will prove fatal in knocking out an Assignment of Mortgage or Deed of Trust from the land records in a Cancellation & Expungement action (C&E). We managed to succeed in a Tampa, Florida case in getting a Release of Mortgage cancelled and expunged from the land records. Now the end game claimant has more hurdles to jump over in attempting foreclosure.
The bottom line here … knowledge may be power … but not having the wisdom to use it may cost you more than it’s worth.