I need to activate my network. Who knows Isabella Rossellini? I need to borrow her spider outfit from Green Porno.
In the spider segment of Green Porno, Ms. Rossellini dons a spider outfit and describes how the male spider creeps slowly toward the female spider. He does not want to cause the female spider's web to vibrate as he approaches for mating. The female spider is much larger than the male spider, and she might eat him. The male spider hurriedly takes care of the business of mating (in a charmingly unconventional way) and scurries off.
This segment has long been a joke in my house. After all, I'm not diminutive in stature or personality.
However, in the course of helping homeowners defend themselves in court, I am not quite as intimidating. The plaintiffs--foreclosing lenders or those who assert they bought loans and have the right to foreclose--are pretty confident. It is an uphill battle to get even some small amount of due process--a matter of following long-established legal rules designed to give each person a say in court before action is taken against them. Gaining a substantive win for my client is difficult. Eating the foreclosing lawyer is out of the question.
Given the hard work those of us who help homeowners do for modest gain, I was surprised to find a new term in a training manual written by a well-heeled law firm providing "how-to" advice to attorneys who represent lenders: "predatory borrower." (A link to the training follows at the bottom of this post.)
"Predatory" implies that one seeks to devour another, such as when even baby spiders devour each other immediately upon being hatched in a later production by Ms. Rossellini (Seduce Me). "Predatory" sometimes is used to mean that a person (or corporation, for those of us who don't believe that corporations are people) wants to take unfair advantage of another.
For example, banks are said to engage in "predatory lending" when they make loans that they know the borrower cannot possibly repay. They make the loan knowing the consumer cannot possibly benefit from it. The loan is extended to make a profit for the lender by putting the borrower at an unfair advantage.
With many neighborhoods being full of abandoned and boarded-up homes following foreclosure actions, it is easy to see what is "predatory" about "predatory lending." Even though there is no statutory definition, we know it when we see it on our block, in the eyes of a homeless friend, in the numbers of companion animals who are euthanized when their families' homes are lost, and in the devastating loss of wealth among working, middle-class people.
It is not so easy to see what is "predatory" about a person who is losing his or her home to foreclosure. The homeowner may have borrowed foolishly, may have been overly optimistic about income, may have failed to read the fine print, may have had an unexpected job loss or illness, or may have simply wanted more home than he or she could afford. It is hard to see how any of these scenarios indicate "predatory" behavior when--regardless of reason--the end result is almost always loss of the home with a possible money judgment against the borrower that may lead to garnished wages or frozen bank accounts.
Fortunately, the highly-paid attorneys at Locke Lord Bissell & Liddell, a firm of nearly 600 internationally, were able to solve the legal riddle that I could not. A predatory borrower, they tell us in a web-published power point designed for attorneys foreclosing against homeowners, is virtually anyone who seeks to represent himself/herself to fight foreclosure. Practices they describe as "predatory" include demanding proof that the company seeking to take one's home owns the note and has the right to foreclose. Another "predatory" tactic is seeking to rescind (cancel) the loan according to right afforded by several consumer-protection statutes. Also "predatory" is pointing out to the court that the underlying loan was fraudulent or that the homeowner was misled about the loan terms. In other words, almost anything a homeowner (or homeowner's attorney) could say would be "predatory." Since I regularly represent my clients in the ways indicated above, I think it only fair warning to the other lawyers that I wear the spider suit to demonstrate my predatory nature.
The publication suggests foreclosing attorneys aggressively fight these "predatory" creatures seeking to save hearth and home. Among the tactics are removing the case to Federal court. In a stink-bomb that impermissibly (according to the ethical rules governing attorneys) casts a shadow on the impartiality of the bench, the attorneys state that Federal judges will not deal fairly with homeowners who represent themselves--the homeowners will get lost in a tangle of rules and judicial impatience. The document further instructs attorneys to take advantage of differing rules governing fraud in Federal court as opposed to most state courts. Generally, Federal courts require that more facts be pled to show that fraud took place than do state courts.
What particularly troubles me, as an attorney, is the endorsement by attorneys of efforts taken only for vexation and delay and the demonizing of those who seek to represent themselves. Our courts are open to the public--anyone can go to court. Anyone (a person, NOT a corporation) can represent himself or herself and have a "day in court." Perhaps not everyone is equipped to make the most of this opportunity, and attorneys may be advisable in most cases. However, equal access to justice is as important to our justice system as scurrying away quickly is to male spiders--if we are going to survive, we must ensure that everyone can access the courts.
Attorneys are sworn not to do things for harassment, vexation, or delay. While I may disagree with a fellow attorney about a legal issue, I do not file pleadings unless I think they are legally meaningful. I might salivate thinking of causing my opponent a sleepless night with an ill-founded pleading, but I will not act on the impulse. No matter how angry I become, I know I am not a hatchling spider--I have to act with some restraint and avoiding gobbling up the other guy.
Finally, it is a bit troubling that forum-shopping, changing courts just to get a judge who might be harsher on pro-se litigants, would be contemplated. While every lawyer tries to guess about which judge might be "friendlier" to this or that side, a good lawyer relies on legal arguments and the ability to apply the law to the facts of a given case. Advising the public that Federal judges do not respect the rights of pro-se litigants reflects very poorly on the professionalism of the big-firm attorneys who prepared the training materials.
Even if the attorneys who represent banks cannot operate in an ethical manner, you can. Consider hiring an attorney if you face foreclosure. Listen to what the attorney says to be sure he or she is recommended legal strategies that make sense--not just to "buy time" or frustrate the other side (even though these can be unintended results of legitimate legal maneuvers).
Consult with a HUD-Certified Housing Counseling Agency. Whether you are in foreclosure or not, the counselors at this FREE resource can guide you in practical way through your options, including applying for a modification whether you are in foreclosure, have defaulted on your mortgage, or are current.
If you do go to court for yourself, prepare neat documents based on samples you can find at the Clerk of Court's office. The Clerk cannot give legal advice, but can show you where the header of your case goes, where to place your contact information, and how to find your case number. Number each allegation you make, and try to make each fact a single, concise sentence: "1. I have made all my payments on time as is shown by the attached cancelled checks." Write the facts in plain language without "legalese." Send a copy to the other side. Write "Judge's Courtesy Copy" on another set and give it to the Judge's clerk before the hearing. Never try to talk to the Judge directly unless it is a court date that all parties know about in advance (unless you have followed the rules and are presenting an "emergency motion"--which should be used only in extraordinary circumstances).
At the hearing, have extra copies in case they are needed by the Judge or other lawyer. Arrive early, tell the clerk you are there, and wait quietly. Speak calmly and professionally. Stick to the facts. Look at and talk to the Judge. If the other side says something that is untrue, make a note on a piece of paper and remember to bring it up, calmly, when it is your turn to talk. Do not become upset if the Judge asks you to come back another time; not every court date is designed to be the date when you argue. Sometimes, the Judge just needs to find out what has been filed and when it will be time to argue. Do not leave until you have a copy of that day's order signed by the Judge--it is your only record of what the Judge decided. Going to court can seem frightening, but it is possible to calmly make your point even when you feel like you are going to be sick--I do it almost every day.
Ask questions and seek the help you need. Although pro bono agencies are stressed, some jurisdictions have "help desks" or on-line resources like www.illinoislegalaid.org.
Perhaps you'll come across a lawyer that doesn't dress as fancy as the ones at Locke Lord Bissell & Liddell and has time and respect for homeowners. If you do, come up and say hello to me. I hardly ever eat anybody.
Here's a link to the offensive post. Adjust your monocle and enjoy:
http://www.scribd.com/doc/51363333/LockeLordBissell-on-Dealing-With-ProSe-Defendants
