Why Foreclosure Defenders ALWAYS LOSE
Mark Stopa, Florida foreclosure defense attorney, points out in his 15 June 2011 blog entry the unfairness and crookedness of one Florida summary judgment foreclosure judge, which I consider typical of all of them. Stopa describes his elation at getting a St. Augustine judge to approve Stopa's motion for rehearing which argued identically to what his client had argued earlier as pro se, and which the same judge had denied. Thus, you see, it pays to hire a lawyer, claims Stopa.
No, it proves that Stopa should file an impeachment complaint against the judge for showing favoritism to a lawyer and denying the pro se litigant the equal access to the court under Article I Section 21 and the due process under Article I Section 9 to which the Florida Constitution entitles ALL litigants. It proves that he should also impugn the Supreme Court justices for appointing such a rocket docket judge to begin with. No, I don't KNOW the judge got appointed by the Supremes, but they appointed a host of senior judges to man the rocket docket mass foreclosure or residential foreclosure courts in Florida's Circuits. It proves that Stopa enjoys the legal services monopoly that bar membership brings him and that destroys the rights of pro se litigants.
As foreclosure defender and StopThe Banksters book author Malcolm Doney (http://dolphindevelopments.com) in Ft. Myers (20th Circuit) and ACLU attorney Rachel Goodman (firstname.lastname@example.org, 212.549.2588) have remonstrated recently, the rocket docket senior judges like Starnes and Thompson in the 20th circuit routinely deny due process to desperate victims of crooked foreclosures.
Furthermore, as Mortgage Attack Ombudsman Bob Hurt has explained repeatedly, everything attorneys do OTHER than attacking contract breaches and other tortious conduct simply delays the inevitable foreclosure. Even USDC Judge Christopher Boyko's Ohio dismissals in October 2007 of 25 foreclosures got overturned on appeal, and the borrowers lost their homes in foreclosure sales, for the very reason Bradford makes obvious in his discourses.
Because the foreclosure victims failed to find the contract breaches, mortgage fraud, and other tortious conduct that could justify the court's order to rescind the transaction, disgorge the funds paid, and grant treble compensatory damages to the foreclosure and fraud victim.
Why does that matter?
Because most of the other defenses amount to defects the plaintiff can and will correct prior to re-filing or appealing the case. And the plaintiff will win because the defendant did receive the loan, did sign the note, did sign the mortgage, and did fail timely to make the required payments. End of subject. Except for tortious conduct by the appraiser, mortgage broker, realtor, seller, or lender related to the real estate purchase or mortgage loan transaction, foreclosure defenses typically fail in trial or appeal court.
Furthermore, with proof such as Mortgage Attack's mortgage examination provides, a foreclosure victim needn't wait for foreclosure, but may simply approach the would-be plaintiffs and threaten a quiet title and tort action. The lender/servicer/trustee will then ask for a quiet settlement to avoid a debacle like the one in West Virginia where a court awarded nearly $5 million including court costs, legal fees, treble compensatory damages and $3.5 million in punitive damages in a predatory lending case based on appraisal and loan fraud (http://wvrecord.com/news/s-3962-state-supreme-court/261610-quicken-loans-ordered-to-pay-3-5m-in-mortgage-case-appeals).
The sad shame: foreclosure defense attorneys forsake such common sense in favor of diddling with petty delaying tactics which usually result in foreclosure while they milk or bleed the already broke and suffering client. Typical foreclosure defenders with such clients charge them $100 to $3500 initiation fee plus $500 to $1000 a month to stave off the inevitable foreclosure for as long as possible. Instead, they should advise the client to stop the foreclosure with a request for loan mod, then when the time comes to sign, refuse and let the foreclosure proceed, then at the eleventh hour short sell the realty and move on to pay cash at a foreclosure auction for another home. Auctions often bring $25,000 to $40,000 for a home worth $150,000 to $200,000 in 2006. I expect prices of residential realty to drop even lower in the next couple of years.
Furthermore, it seems insane to stay in a house that has dropped in value to 40% to 60% of the selling price or 50% to 70% of the present loan balance. WHY PAY for such an outrageously overpriced house?
And of course, foreclosure defenders should only recommend such a course for the victim if they cannot or will not pay for a mortgage examination. But of course I see no excuse for not buying an examination service in the majority of cases. Only an idiot does not see which of these choices to make and in what order:
- Fight the foreclosure only to lose eventually, and throw away thousands in the process on unnecessary attorney fees.
- Stay in the house as long as possible, then short sell, salvage the credit rating a little, and move on to buy again in a couple of years
- Pay for a mortgage examination, prove the fraud, approach the prospective foreclosures for a settlement, sue if they refuse, and walk away with the house free and clear plus punitive damages.
Yes, option 3 costs some up front for the attorney, but if the process discloses fraud fatal to the realty purchase or mortgage, it provides a monumental opportunity for a substantial settlement and far more attorney fees and benefits to the client than any other option.
Go ahead, Mark Stopa. Enjoy your feelings of elation at getting a rehearing. But imagine your exhilaration if the same case in a few months brings you $500K in attorney fees and a fat settlement for your client because you asked Mortgage Attack to find the tortious conduct in the realty and mortgage loan transactions. Then you'd really have something about which to bray.
As for Mark's advice to hire an attorney, I encourage everyone reading this to ponder carefully the bar connection between lawyers and judges. Yes a judge will favor an attorney over a pro se litigant, as Mark admits. But if the attorney faces a challenge to stand up against the judge's intent to abuse the client or to wither under the judge's implicit threat of sanction or bar complaint, you know the attorney will choose to wither. Thus, the client cannot trust either the judge OR the attorney.
So it makes most sense for the foreclosure victim to buy a comprehensive professional mortgage examination of the kind recommended by Mortgage Attack, and take the report to the lender, servicer, and trustee and ask for a settlement. ONLY THEN, if you don't get a pleasing settlement offer, should you take the matter to an attorney. Then, in your shoes, I would take the examination report to a variety of attorneys till I found one willing to fight the foreclosure on the come, on the contingency that a full win in court would include payment of a reasonably generous fee for the work. THEN I would hire the attorney because I know he would do whatever necessary to prevail and to earn that fat fee and all the recognition that goes with it.
Also, pay attention to this. You ought to write a testimonial for any service provider who genuinely helps you and produces a good result for you, particularly for one who doesn't charge much and who makes your win possible.
Note also that a win means WIN. It does not mean merely escape disaster. Most attorneys will try to talk you into accepting anything but the worst thing that could happen as a win. I consider that nonsense. A win means getting the result you intend to get, and nothing less. I would make this point clear to my attorney. Furthermore, in a foreclosure defense, I would only hire an attorney who agrees to follow Mortgage Attack's strategy and tactical plan to perfection. No other approach makes any sense. So, I encourage you to voir dire your attorney (see appended) before employing him. If he hems and haws about his loyalty to your cause or willingness to follow the examiner's strategy, I'd toss him and look for one who will toe the line.
Note further that for you lawyers unwilling or incompetent to write your own quiet title complaint or foreclosure answer based on the mortgage examination report, Mortgage Attack can get the work done for you for far less than the price of your service.
Why won't your attorney make the below statements correctly ?
_ ATTORNEY ATTESTATION TO CLIENT
I, the undersigned Attorney, hereby attest as follows, without any duress or mental reservation:
- I (am / am not) currently licensed by the Florida Supreme Court as an attorney and counselor at law in Florida courts.
- I (am / am not) a member in good standing of the Florida Bar.
- I (do / do not) acknowledge my status as officer of the court and affirm my oath of admission to the Florida Bar, to wit: "I do solemnly swear: I will support the Constitution of the United States and the Constitution of the State of Florida; I will maintain the respect due to courts of justice and judicial officers; I will not counsel or maintain any suit or proceedings which shall appear to me to be unjust, nor any defense except such as I believe to be honestly debatable under the law of the land; I will employ for the purpose of maintaining the causes confided to me such means only as are consistent with truth and honor, and will never seek to mislead the judge or jury by any artifice or false statement of fact or law; I will maintain the confidence and preserve inviolate the secrets of my clients, and will accept no compensation in connection with their business except from them or with their knowledge and approval; I will abstain from all offensive personality and advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which I am charged; I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed, or delay anyone's cause for lucre or malice. So help me God."
- I (am / am not) protected by surety bond / malpractice insurance $____________. (Carrier info attached)
- I (shall / shall not) accept ______________________________ ("Client") as my law client in exchange for fee, in accordance with separate agreement which shall not supersede any provisions of this Attestation.
- I (shall / shall not) in my relationships with Client, the Courts and its officers, abide by my oath above by giving my first loyalty, without compromise, to Client and to securing Client's constitutionally guaranteed rights.
- (shall / shall not) in the tasks for which Client has retained me fulfill my promises to Client, be punctual, answer Client's questions truthfully, aggressively advocate Client's cause, defend Client's rights guaranteed by the relevant Constitutions and laws pursuant thereto, bill fairly and only for actual services rendered, treat retainers as advance pay for services, and ensure that my employees and subcontractors fully support me in that effort.
- I (shall / shall not) refund Client's fees for any portion of work for which Client hired me that I fail to perform substantially with high quality, diligence, and integrity.
- I (shall / shall not) hand over to Client upon Client's request, and retain none of: all originals, copies, and derivatives of information provided to me by Client, other than items of public record, and all unused retainer money.
- This attestation (does / does not) supersede all contrary assertions except by specific written reference to one or more provisions herein, acknowledged in writing by Client.
- I have worked _____________ cases like Client's case and won ___________ (__________%) of them.
Printed Name or Stamp
Witness or Notary Signature
Printed Name, Stamp, or Seal