I have noticed that the more I argue on behalf of Homeowners facing foreclosure the less it becomes about the law. I have always tried to be a reasonable attorney when it came to settlement and civil litigation. I believe that I have developed a reputation as being a reasonable and practical litigator. However, recently I have been asked by Magistrates,by Judges in Chambers,and by Appellate Panels essentially "does it really matter?"
Rules of Civil Procedure appear to be unimportant; Rules of Evidence are not practical. A new legal maxim prevails: "When was the last time this person made his mortgage payment?" I read an interview of a local Judge in an Alumni Newsletter, and his comments provided an insight into his beliefs "people bought more than they could afford." Where did the judicial system gain this perspective? Not from some wrongful corrupt or illegal process, but from the constant drip of the information that the Lenders have put out for consumption. Look at the most recent article making the rounds in the popular periodicals http://www.forbes.com/sites/danielfisher/2012/02/07/mortgage-settlement-talks-look-like-tobacco-ii/
The article basically argues that Lenders have not done anything wrong. Robo-signing?; is this a bad thing? Since most people do not truly understand the concept the word seems to have no moral implication. Let's face it: if you have a newborn you know all about newborns, a parent of a toddler knows all about toddlers, if your kid plays soccer you know "offsides", a parent of a hockey player knows "icing". Unless you have been involved in a foreclosure, robo-signing is a foreign word that has no real meaning to you.
Robo-signing: some one with no training or understanding of accounting, lending practices or the law swears under oath and subject to the penalties of perjury that they have personally reviewed the records related to the Homeowner's mortgage and from that personal review they can say that the Plaintiff holds, or owns, or has possession of the promissory note; that the Plaintiff has an interest in the mortgage, that the entire balance of the note has been properly accelerated according to the terms of the note, and when the credits and debits from the last several years have been applied to the Homeowner's account I calculated the amount to be this specific number. Never mind that I have not looked at any record, have not been sworn, have no personal knowledge of the information contained in this affidavit, and my employer told me to sign so many of these affidavits before lunch. I also forgot: that is not my name and whatever a notary public is there isn't one watching me sign this document.
But the article was correct: the Homeowner did miss a payment. Due process; civil procedure, justice, equal protection under the law.... simply bothersome concepts that are clogging the Courts.