Archive for June 21st, 2013

A Brilliant Move by the Bank – Dismissal

I  had a foreclosure trial today, and the bank’s attorney made a brilliant strategic move.  He dismissed the bank’s lawsuit before trial began.

Why was that brilliant, you wonder?  Why would the bank choosing to lose their case be a good move?  Simple.  By dismissing the bank’s foreclosure lawsuit before trial began, that lawyer prevented me from making arguments that the judge and several other defense lawyers in the courtroom had never heard before.

You see, I came to court with a box of case law.  I left my house at 5:30 a.m., I arrived early, and I watched several trials before mine.  I’m very confident the judge had never heard some of the arguments I was going to make. and had never been shown some of the case law I brought with me.  If the bank allowed trial to go forward today against my client, he would have allowed me to educate the judge – and all of the other foreclosure defense attorneys in the courtroom – with novel arguments and case law.  Once the judge realized that was the law, and he was bound to follow it – not just in my case but in many other cases with those same issues – that bank and its lawyer would have had problems in many other cases.  And once the other defense attorneys realized what they should argue, they’d parrot those arguments in future cases.  So the bank and its lawyer made the only smart move they could make.  They gave up.

I could literally see the logic in their thought process as it happened.  “If we dismiss Stopa’s case, we can get him out of this courtroom, prevent him from sharing those cases with the judge, and prevent him from showing the local defense attorneys the arguments he raises and the objections he makes.  If we proceed with trial, even if we somehow win, Stopa will have spread his information to everyone.”

That sounds arrogant, I realize.  But at my last trial, that’s just what happened.  Trial went on for four hours, and the judge commented how nobody had ever presented him with the cases I showed him, and he felt he was obligated to sustain an evidentiary objection I made and prevent the plaintiff from introducing critical evidence in that case.  The judge clearly didn’t like that result – openly wondering how foreclosure plaintiffs would be able to prevail whenever that objection is made.  Ironically, I lost that trial.  But I can’t help but think the bank’s lawyers made a mistake by going forward that day.  Yes, they won that case.  But that judge now realizes I was right on that critical evidentiary issue, and he’ll be constrained to rule that way in hundreds of foreclosure trials in the future … not just mine, but everyone’s.  That’s literally what the judge was saying in open court that day … how are the plaintiffs going to prove this issue in light of this objection?

From the bank’s perspective, you tell me … who won?  Who did better?  The plaintiff’s lawyer who dismissed the bank’s case today before trial started, losing that case but preventing me from unleashing my box-full of arguments in an open courtroom?  Or the plaintiff’s lawyer who won the case against me a few days ago (subject to my pending appeal, of course), but who allowed me to convince the judge that homeowners must prevail on a significant evidentiary issue that arises in hundreds, even thousands of foreclosure cases?

Plaintiffs’ lawyers, if you truly, sincerely think about it, you’ll realize I’m right on this one.  So when our case is set for trial, give me a call and let me know that you’ll dismiss the case and prevent me from sharing my box-full of arguments with judges and other defense attorneys.  We both know that’s the smart move for you.


Mark Stopa

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