The other day I argued a motion for summary judgment on behalf of a bank in a foreclosure action. The borrower is wealthy; she owns four condos in Manhattan and a beach house in Florida. She has an expensive foreclosure defense lawyer. This lawyer can see that his client is wealthy and is taking full advantage of her for sure. He answered the complaint with something like 45 affirmative defenses and 7 counterclaims. I’m sure the borrower paid a pretty penny for such a comprehensive answer. But, is it effective?
More is not always better.
45 separate defenses to a foreclosure do not exist.
It makes you look like you’re throwing everything against the wall and hoping that it will stick. That’s because you are.
Now, there is something to be said about preserving your defenses. There are certain defenses that, if you don’t raise them in an answer, you’ve waived them. So I totally get raising defenses that may or may not apply to this particular situation.
This answer must have had 12 separate defenses that addressed standing. Seriously. The bank is not the holder of the note. The bank is not the holder of the mortgage. The bank is not the owner of the note. The bank is not the owner of the mortgage. The bank is not the proper assignee of the note. The bank is not the proper assignee of the mortgage. You get it. The attorney sliced a single standing defense into 12 separate defenses. I’m sure he charged the borrower for each of those defenses, or at least he bragged about how extensive and comprehensive his answer is when he was selling his services to the borrower.
So, when it came time for me to write my motion for summary judgment, I had to address all of those defenses and all of those counterclaims. When it came to the 12 different standing defenses, I had to recite the law on standing and show how my client the bank had standing. I had to do it 12 separate times. By the end, I wanted to pull my hair out, but I made my case why each and every affirmative defense and counterclaim should be stricken and why my client should be granted summary judgment.
My motion for summary judgment took a long time, and cost my client a lot of money in legal fees.
The thing is, the borrower is going to end up paying my legal fees. This borrower has equity in her property, and when her property goes to auction, my client is going to get every penny that it is owed, including the money they had to pay me to write that awful summary judgment motion.
As a borrower with equity, you are paying not only for your lawyer but for the bank’s lawyer also. So when your attorney wants to tell the bank a dozen different ways that the bank has no standing to maintain the foreclosure action, you’re paying twice for work that doesn’t need to be done even once. Preserve your standing defense and move on.
So when I went in for oral argument, the borrower’s attorney sent a “per diem” or “of counsel” attorney to make the argument. This is a travesty of client service. This expensive attorney charged all of this money to prepare an expensive answer with 45 affirmative defenses and 7 counterclaims. This expensive attorney engaged in expensive discovery in a foreclosure action. This expensive attorney made an expensive cross-motion to dismiss the foreclosure action in opposition to the bank’s expensive summary judgment motion, and then he had the nerve to send a know-nothing attorney to make the argument. Wrong move. I won the motion
and the borrower ended up crying in the hallway to the per diem attorney that never spoke to her before.
More is not always better.
Jason Sackoor is a real estate attorney in Queens, New York concentrating on foreclosure and real estate litigation. You can check out his website, e-mail him, or call his office at (718) 767-3333 to set up a consultation.