Time to Check the Weather in Hell

It must be a cold cold day in the nether regions when I find myself substantially in agreement with ultra-right-wing activist Karl Denninger. Yet, his plan for dealing with the spiraling mortgage mess (incentivize quiet title actions on a mass scale) seems — at first glance — to have quite a lot going for it.

See What Must Be Done – Today. What do you think? Am I missing something other than the fact that our courts don't currently have the capacity to hear all these cases?

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7 Responses to Time to Check the Weather in Hell

  1. Vic says:

    An interesting idea, to be sure. I agree that the Courts probably could not handle the load that it would put on them.

    What I would worry about further though is whether creating a “process” that would spin away during a pause in the current actions, would also create fresh incentives to then create processes within the process that would be as corrupt as that which the first process is designed to ferret out. After all, the system wasn’t bad by design, it was corrupted because it COULD be. There’s a lot of money and political power involved, and it would STILL be involved in this fix-it process being suggested. If anything, there may be even less ability to have judicial oversight. Interesting idea…

  2. Just me says:

    Although this is not my primary area of practice, I have taken on a handful of mortgage foreclosure defense cases. It seems to me that any solution to the problem begins with judges actually following the rules. I believe that many lenders and bank lawyers have become empowered to play fast and loose with the foreclosure procedure because judges simply let them. Judges’ dockets are overloaded to the point that most judges are not willing to hear procedural defenses. I have seen countless hearings go something like this:

    Plaintiff’s counsel: I represent the bank. The defendant hasn’t paid his mortgage in 2 years. Here are all of my documents. Please grant summary judgment.

    Defendant’s counsel: Your honor, there are numerous deficiencies here: 1) the plaintiff is not the original lender; 2) the plaintiff has never provided an original note or assignment; 3) the plaintiff (who filed the action) has provided a copy of an assignment that is dated after the complaint was filed (thus, the complaint was filed without standing); etc.

    Judge (to defendant’s counsel): has your client paid the mortgage?

    Defendant’s counsel: No, but… (Judge cuts in)

    Judge (to Defendant’s counsel): what do you want me to here counselor? I have 5,000 foreclosures on my docket, and your client hasn’t paid his mortgage in two years.

    Defense counsel: Your honor, I simply believe that my client is entitled to the benefits of due process. The Plaintiff must follow the rules of procedure and a plaintiff must have standing at the time they commence an action….(judge cuts in)

    Judge: I don’t have time for this. Summary Judgment granted. Who’s next on the docket?

    Until judges follow the rules (either because the dockets become less busy, or because the judge’s feet are held to the fire), nothing will change.

  3. michael says:

    Lazy/harassed/overworked judges will follow the rules when the Court of Appeal makes them…. It is in the end the lawyer’s job to hold judicial feet to the fire. And yes, it’s expensive and unfair to the client, who usually can’t afford it….

  4. Joe1 says:

    I once defended a debt collection case in Omaha where the hospital failed to answer my standard interrogatories. My client had received services, but couldn’t pay. She was eligible for medicaid, but the hospital failed to ask for help. My interrogatories were designed to get information regarding the hospital’s attempts to get medicaid reimbursement.

    After eight or nine months with no answers, I filed a motion to dismiss for failure to answer interrogatories. At the discussion of the case in chambers, the judge wanted to know why the hospital failed to either answer the interrogatories or ask for more time to answer. The attorney stated that the hospital’s financial administrator had had a heart attack, and had just returned to work after six or so months of rehabilitation. The judge asked whether anybody else at the hospital, the third largest in Omaha, could have answered the questions. After the hospital’s counsel made some more lame excuses, the judge dismissed the case. The judge was a tough fact finder, but he believed in the process. Of course, the hospital re-filed within the week, but I don’t know what happened to the claim afterwards.

  5. Vic says:

    “It is in the end the lawyer’s job to hold judicial feet to the fire.”

    Easy to say from the gallery. In practice, you can’t always get an appellate court to do what you want, even if it’s right. Very often it’s because the judge below had just enough wiggle room that it all fell within his discretion – and there is nothing you can do about it. The more highly regulated a thing is, the more difficult it can be to appeal (very often). And “Lazy/harassed/overworked judges” don’t always leave you anything to appeal.

    And there can be a lot more financial considerations than just the legal bill involved.

  6. Just me says:

    I would be happy to appeal every time I lose. Unfortunately, I have an obligation to my partner and my family to make money (not to mention self interest). If clients don’t pay, I can’t appeal. It is not just time lost, it is a question of opportunity loss. Time I spend on a non-paying client is time I don’t spend on paying ones. By the time a foreclosure case gets to an appealable posture, the client hasn’t paid the mortgage for at least a year (if not 2 or 3). Most clients are satisfied at that point that they have lived in a house rent/mortgage free for a LONG time and do not wish to spend money trying to prolong the inevitable.

    Also, Vic is mostly right. Appeal isn’t always a real option.

  7. Patrick (G) says:

    If the resident has made a good faith effort to work with the bank but had no cooperation or was just given the runaround, lack of payment should not be considered an inappropriate response…

    If the judge skips the fundamental step where standing to foreclose is adequately proven, is he fit to judge 5000 other cases?

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