Archive for June 21st, 2011

Who needs an Attorney or Co-Counsel for Trial?

I’ve been doing this foreclosure defense thing pretty hot and heavy for a few years now.  As a result, I think I know the industry pretty well.  Generally speaking, nothing really surprises me any more.  I know what the banks are doing, I know what their lawyers are doing, and I know what other defense lawyers are doing.  Perhaps most importantly, I know what other defense lawyers are not doing. 

There are a lot of lawyers dabbling in foreclosure defense who are unwilling or unable to go to trial in a foreclosure case.  That’s not meant as an insult.  In fact, I think many would admit their unwillingness/inability to go to trial.  For a variety of reasons (the perception they can’t win, lack of trial experience, whatever), many lawyers handling foreclosure cases just don’t feel comfortable going to trial.  In recent days, I’ve talked to a few different court personnel (judges, judicial assistants, and case managers) who have echoed this sentiment. 

Candidly, I’m disappointed with this.  In my view, trial is an essential part of a foreclosure case.  In fact, a lot of my strategy hinges on forcing the bank to go to trial.  In its simplest form, that’s what foreclosure defense is – work to defeat the bank’s motion for summary judgment and force them to win the case at trial.  Many times, as we’ve seen, banks don’t want to have to go to trial, so this creates leverage for a prospective resolution.  Hence, fearing a trial means giving up leverage for a prospective resolution or, worse yet, creating an easier path for the bank to foreclose. 

So what’s my point here?  Simple.  I don’t want to pound on my own chest, but I am perfectly comfortable going to trial in a foreclosure case.  I understand the evidentiary issues, I’m comfortable with the arguments, and I’m more than willing to do it.  Yes, I realize I’m going to lose some foreclosure trials, perhaps (if the banks’ lawyers wisen up and learn how to try their cases) the majority of them.  But the foreclosure system needs lawyers who are willing to try cases, particularly since, if you know what you’re doing, it’s entirely possible for homeowners to win at trial.  So if you’re a lawyer who is unwilling/unable to take a case to trial, then feel free to talk to me about acting as co-counsel.  Or if you’re a homeowner without an attorney staring at a trial date, don’t give up!  I’ll be happy to go to trial on your behalf.  And it’s probably less expensive than you think – since the arguments are similar from case to case, I won’t have to re-invent the wheel each time. 

So give me a call – you have nothing to lose, except your foreclosure case.  

(Hat tip to Matt Weidner, who discussed this concept with me recently and correctly noted the need for lawyers such as he and I to try cases.)

Mark Stopa

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