Pre-trial negotiation

Trials in foreclosure cases are hard to win. Personally, I only observed two trials so far that ended in favor of the homeowner. In both of those cases defense attorneys were able to challenge witnesses for the bank who were not custodians of records and also did not qualify as competent witnesses under the business records exemption. But at hundreds of other trials the same arguments did not lead to positive results.

I did come across two interesting final judgments, though, from trials which unfortunately I did not attend. They were both in favor of homeowners and simply stated that at trial the law and the equities did not favor plaintiff. I wish I could tell you more as to what happened at those trials but I can’t as I wasn’t there and no trancripts were available.

But I did observe numerous instances when cases were dismissed because banks were not ready for trial and judges denied their pleas for continuance. In those cases all the homeowner needed to do was to make sure the bank was not ready for trial and that the judge refused to continue trial. Unfortunately, to make this happen is beyond control of a human being.

Other than that, what happens most frequently is that homeowners not represented by counsel don’t even show up. In other cases where attorneys are hired, the attorneys do show up, but they don’t even attempt to fight. Probably because they realize they cannot win the fight anyway. Instead, they consent to final judgment without a trial and without argument in exchange for waiver of deficiency and/or extended sale date.

Something that I found interesting happened at one of such trials which are otherwise uneventful. The case was from 2007. When defense counsel asked the judge for continuance, the judge said with the case as old as this chances for continuance were slim to none. He sugested the two counsel should negotiate something else.

When they came back, the defense counsel told me he was able to get a 180 days extension of sale date which is otherwise just 30 days. But the homeowner gave me some more details. She said the initial offer was for 90 days. But she pushed her attorney to ask for 180 days instead. And he did, and they got it. The triumphant homeowner lady realtor said: you have to teach these kids how to negotiate.

After all the trials were over I happened to have an interesting exchange with another attorney. I noticed that he was specializing in trials where no counsel represented the homeowner. He would just go in and get 20-30 uncontested final judgments a day. After he was done, he would leave. Mission accomplished. But that day he stayed over. There was a highly contested trial. So, I guess, he was just curious what was going to happen. Well, the judgment was in favor of the bank. anyway.

The attorney did not look aggressive. So I said to him to start up a conversation: what a waste of time it was, wasn’t it? Arguing the case for 30 minutes. You get 20 judgment in the same period of time.

He said to me: what I don’t understand, he said, people are loosing their homes, and they don’t care, and don’t show up. I believe he said that as a matter of speech. Probably, the last thing he would want is that somebody shows up and, once in a blue moon, makes his life miserable. But in essence, he was right. If you do show up, you can get get 2-3 extra months to stay in your home. Which is around $2-3 thousand. Not a bad result for just showing up. And maybe, just maybe, the bank is not ready, and because you are there, the judge would be less likely to grant a continuance. I don’t understand myself how can it be not worth it to show up.

Then the attorney said: do you think when people borrowed money, they should not pay and get a free house? I said: but what if they owe somebody else, and you come to the court to pretend they owe you? So, in that case they should get a free house? By that time we got out of the courtroom and got into the elevator coming down. I was literally surrounded by the attorney’s buddies from Bank of America, Chase, GMAC, etc. And I said: everybody would like to have a free house. Won’t you? Won’t they? The question is whether the judge give it to me. That was the end of the conversation. But I think it made them all laugh for a while: he wants a free house, ha,ha,ha.

I thought about it a little more in a different context. It appears to me these attorneys use some catch phrases to keep the judges in check. In a hearing on a motion to dismiss, they would say: we plead in the complaint the bank owns and holds the note, and there was a default, that’s all we need. Four corners of the complaint is all we need. I can imagine, if they were loosing a trial, they could say: are you going to give him a free house, judge? And I would probably say: and you in order to prevent me from getting a free house, are willing to allow yourself to lie and cheat, and still remain a member of the Florida Bar in good standing?

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