The first trial for this case was scheduled in Miami-Dade for January 2013. I had spent days and nights preparing, refreshing my memory on all the details such as the payment history, acceleration letter, the note and mortgage, mortgage servicer correspondence, court filings, discovery, rules of evidence, procedure and much more. As I usually do, I ran background checks on the bank’s witness. I reviewed all the mortgage servicing processes from this particular bank as covered in various other court documents we have on file. I felt prepared. I was ready.
Our client had a Fannie Mae loan, serviced by one of the biggest banks. The file contained the usual hoof prints of suspicious documents. Unfortunately, this is not unusual…
I woke up the morning of trial raring to go. I was prepared, calm and pumped with a bit of adrenaline. Litigators and athletes will understand the letdown I felt when the trial did not go forward. Their witness did not show and the court ordered a continuance until April 4th.
In the meantime, our client had a short sale pending on her home. Like many foreclosure cases lately, banks seem to prefer to foreclose on the home rather than approve a short sale or sustainable modification. As per our client’s wishes, our office staff tried to overcome the bank’s resistance to final approval of the short sale in hopes of avoiding the looming reset trial date. We were getting nowhere fast with that. Being stonewalled on theshort sale seemed part of the bank’s plan. On the eve of trial, the bank’s foreclosure mill contacted us with the typical bargain that we see almost every single other foreclosure defense attorney at trial take. If our client would go quietly and accept a foreclosure judgment which would include her owing a deficiency or huge overage between the amount of the judgment and the value of the property at the time of the foreclosure sale, then the bank would “generously” agree not set the foreclosure sale for ninety days. What kind of a bargain is that? If we lose at trial, we get almost the exact same thing. We consulted with our client. With no incentive, I eagerly recommended that we try this case and give our client her day in court!
The end of March came. My calendar was blocked out for a few days prior to the trial in order to finalize preparations for the case, honing in on any detail that might be critical. We also held a mock trial with my staff as judge, jury, and witness. My staff is awesome, chocked full of dedicated foreclosure fighters like myself. Some of them have been regular court watchers at foreclosure trials, including ones where I was on the defense for my clients. They knew exactly how to recreate what I was sure to once again face. Adding role playing to my prior trial experience, training and dedication, is a critical piece of trial prep. My staff was ruthless. They showed no mercy and we worked hard at refining my approach.
In court, I was in top form as I walked in the lion’s den of a Florida foreclosure courtroom. Bank lawyers and their robo-testifiers dominated the courtroom. They possessed every square inch of it. Tables and chairs piled high with their foreclosure files. They’re young, confident, and full of smiles and small talk, comfortable and relaxed. For them, sixty foreclosure trials dispossessing other of their homes in one afternoon is just another day at the office. For me, I’m driven to serve my clients and to seek justice for the social, ethical, and financial injustices of banks destroying our economy and decimating the middle class only to then be bailed out and pardoned, so they can now take properties by the thousands per week.
My calm yet serious demeanor makes me an oddity in the company of the bank lawyers. Politely, I smiled and ask for some space. I refuse to be pushed into a corner when my client is, under the eyes of the law, supposed to be on equal footing with the bank. Most of the other attorneys are polite and know me by now. A few moved some files over and cleared a small space. However, I always get the impression that, by insisting on just a little square footage I am elbowing in where I am not welcome.
As the trials get started, the court reporter, off to the side, gently taps away at her transcribing equipment. The Judge controls the room from up high on the bench. I watch as countless cases, one by one, are quickly dispensed in favor of the bank. NOT A SINGLE CASE is defended by a homeowner or defense counsel. My clients’ case is called. My knowledge of the case, the rules of evidence, my voir dire and cross examination skills are sharp. I am focused. The judge, a very bright and fair one, listens, considers my objections and arguments and mulls over my cited case law. As the trial continues on, substantially longer then the usual 5 minutes, behind me I can feel the room full of bank lawyers and witnesses’ eyes frustrated and annoyed, beaming at me. Their irritation is palpable. Many times I can almost see the exaggerated eye-rolling going on behind my back. I remain calm, unruffled, and professional. Above all, my clients have their right to their day in court and it’s my obligation and honor to see that they get it!
The trial lasted over an hour, practically unheard of in foreclosure rocket trial world. After the Plaintiff “rests”, I moved for involuntary dismissal; the Plaintiff has not proved its case. The judge wants to hear argument on my motion, but not then, not that day. He wants to hear it during a special set hearing and orders us back in a month.
That hearing took place last week. I went back, after having timely filed our detailed Memorandum in Support of our Motion for Involuntary Dismissal full of cites to the trial transcript and applicable case law to back up our arguments. We clearly laid out our client’s position and the law. A few hours before the hearing, the bank’s lawyers filed their own Memo. Tellingly, there was not a single reference to the trial transcript. Not one! It was, however, filled with a lot of hot air for me to prepare to deflate. The first hour and half of the hearing was absorbed with both sides arguing their positions. However, eventually the Judge announced he would mull it over some more, privately, before ruling. I certainly applauded his desire to thoroughly consider our arguments and make the right call. After a few moments in chambers, he came back. We both looked up expectantly. The Judge said he needed some more time and would issue a written opinion in a few days.
Well, after a few days, we are pleased to announce our Motion for Involuntary Dismissal was GRANTED! Because of thorough preparation with our great team and precision execution, we were able to demonstrate at trial and via our Motion and Memorandum, that the Plaintiff did not meet its burden to prove its case.
Judge ordered, CASE DISMISSED!
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