Archive for December 16th, 2010

“I’m Offended.” “No, I’m offended, judge.”

I had a hearing today on a Motion for Summary Judgment.  I’m pleased to say the judge denied the Motion for Summary Judgment, but not without a number of events worthy of discussion. 

As the hearing began, it was odd from the start.  Instead of asking the plaintiff/movant to explain why summary judgment was appropriate (as is standard in virtually any non-foreclosure case), the judge asked me to explain why summary judgment was inappropriate.  I began my arguments, and the judge (who happens to be a senior judge) was unbelievably disrespectful. 

As I handed him case law during my argument (as I typically do in any hearing), the judge refused to look at the cases.  Unfortunately, that’s not uncommon in foreclosure cases, but what really irked me was how the judge immediately threw each case into the trash can as I handed them to him.  Could you be more disrespectful, judge?  It’s bad enough that you blatantly refuse to read the cases, but to throw them in the trash the very second I hand them to you?  Come on. 

Before I was finished with my argument, the judge cut me off, telling me “I don’t want to make a career out of this case” and directed plaintiff’s counsel to respond.  Seriously?  I would have been more upset if I didn’t notice the judge write “denied” on his note pad during my argument, making it obvious he was denying the motion.  (Incidentally, he did so before the plaintiff’s lawyer began her argument.) 

Anyway, as he announced his ruling (denying the motion), the judge had a lengthy rant about how unfortunate it is that any bright foreclosure defense attorney can stave off foreclosure for a long time, letting homeowners live in their homes without paying.  He made a point of saying he was “offended” that my clients have been living in the home since March, 2010 (saying the date as he looked at the Complaint) without paying their mortgage.  He even said, if it had been a final hearing, that he would have ordered a foreclosure, at which time he would have told “Mr. and Mrs. Gray” to leave the home, but since it was a summary judgment motion, he was denying the motion. 

Respectfully, judge, the party offended at that conduct was me.  I’m offended that you would prejudge the merits of my client’s case – even announcing you would rule against them at trial (if you were the presiding judge) – without hearing any evidence.  I’m offended that you wanted to tell Mr. Gray that he would be foreclosed when Mr. Gray has been dead for three years – a fact you would have known had you read my affidavit or not cut off my argument (which asserted you could not foreclose because, among other reasons, the appropriate parties had not been named since Mr. Gray was deceased).  Is that what foreclosure cases have come to – judges are so quick to foreclose that they’re willing to do so on dead people? 

Respectfully, if you’re that bored with foreclosure defense that you are going to prejudge every case and not let the parties be heard – telling parties that you don’t “want to make a career” out of that case because the hearing lasts more than 2 minutes, throwing case law in the trash without reading it, etc. – then maybe you should reconsider being a senior judge.  Seriously.  If you’re that bored, that unwilling to listen, and have prejudged the cases that badly, maybe you should just go back into retirement.  

Some lawyers would say that since the judge ruled in my favor that I should have just smiled and left.  Maybe so, but I’m tired of being mistreated like that, and I’m tired of judges prejudging cases.  As I see it, that’s judicial misconduct, pure and simple.  Hence, I felt compelled to interject, explaining that my client was current on all payments, and not even in default, when the bank put forced place insurance on the home even though my client had a homeowner’s insurance policy in place.  In fact, the bank sued my client for foreclosure, even though she was current on all other payments, because she refused to make payments on the second (unnecessary) insurance policy.  I even noted that the judge would have known these facts if he had reviewed the affidavit or not cut off my argument, so I took exception with him assuming the bank would win at final hearing. 

The judge was taken aback, saying only “that could be an arguable affirmative defense.” 

Gee, you think, Judge?  My client isn’t even in default and that could be an “arguable” affirmative defense? 

Hopefully, next time, you won’t prejudge my cases.  Hopefully, next time, you’ll let the parties be heard.  After all, you may be “offended” when homeowners stay in their homes without paying their mortgages, but I’m equally offended when judges throw my case law in the trash right in front of me, refuse to let me finish my argument, openly prejudge the case, and openly announce that they’d rule against my clients at a final hearing (without hearing any evidence).  Respectfully, perhaps if you removed your biases and listened to what homeowners have to say, you’d realize that many of them have valid defenses to foreclosure.

Mark Stopa

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Holiday Humor

This would be more funny – if it weren’t true.

Mark Stopa

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