There’s a case that I have my eye on because I represent an interested party. The thing that interests me though is watching these borrowers get beaten for no other reason than they don’t have an attorney. There’s no other possible explanation as to why they’re losing this case. Before you accuse me of being a bad guy for not standing up for these borrowers, you should know that I’m actually prohibited from bringing it to the court’s attention because I represent another party in the action. My client has its own case against these same borrowers. The point of this story is that you need to get an attorney.
Everyone thinks that being a lawyer is easy. There are free resources all over the internet to help you out. All federal and state laws are available to look up on free websites. If you type in a phrase like “foreclosure defenses,” you’re bound to get a ton of information about the typical foreclosure defenses. You might even get some applicable case law that you’re bound to cite in some papers.
The tough part about being a lawyer is knowing the procedure and especially the deadlines. A lot of it is just experience; I’ve been doing this for eleven years, and there’s things that I know now that I didn’t know when I first started. There’s also the style of writing. Lawyers learn a certain style of writing in law school that we implement in litigation. Granted, some lawyers forget their lessons in legal writing and get away with it, but if a lawyer’s papers make no sense, the court will just get frustrated and disregard the arguments because they just don’t make sense. I can tell when a non-lawyer has written papers because they don’t follow a typical legal writing sample.
In this case that I have my eye on, the borrower has a great defense that requires that this action be dismissed as against him: he was never served with the summons and complaint. That defense is a complete killer in a foreclosure action. Even though the borrowers are in default of their mortgage, the court can’t take judgment against this guy because the court doesn’t have jurisdiction over this guy in this case.
How do I know this? Because the borrowers, a husband and wife, are divorced. They’ve been living apart for years. My client has a case against these two borrowers, and we served the wife at the property address and the husband at his own house. In the case I have my eye on, the husband and wife were served at the same place. This is bad service because the husband doesn’t live there, and unless he was served personally (he wasn’t), he would have to get served at his actual “dwelling place,” his actual residence.
Now, if this guy had a lawyer, it would be a slam dunk. His lawyer would put in an answer asserting that the guy was never served, and within 2 months (one of those deadlines that people just don’t know about), the lawyer would move to dismiss the case. The lawyer would cite to applicable case law and present the facts in such a way that the court will expect it to look, and the case would get dismissed. At the very least, the court would order a hearing, and the guy would submit all his evidence that he doesn’t live at the place where he was allegedly served, and then, the case would be dismissed.
This guy didn’t have a lawyer. The bank moved for an order of reference, which is the first motion that a bank will make in a foreclosure action. Once served with the motion, the borrowers have up to one week before the motion’s return date to submit opposition (another one of those deadlines). The borrower didn’t submit opposition until well after the return date, but when he did, he did mention that he wasn’t properly served. He cited to my client’s case against him, where we actually served him where he lives, to show that he didn’t actually live at that place. His papers were scatter-brained, though. They were late. They didn’t make sense chronologically, and to a court that’s accustomed to hearing nonsensical excuses from unrepresented litigants, it was an easy win for the bank. The bank is well on their way to victory, and while victory for the bank was probably inevitable, this borrower could definitely delayed the bank for a long time and forced them to restart the action. Once the action is restarted, a good lawyer will be able to come up with defenses and triable issues of fact related to the prior foreclosure action to help a homeowner fight the second action.