Most judges regard these people as a kind of trash, not worth the time of a federal judge.
With that sentiment Judge Richard Posner announced his retirement from Chicago’s 7th U.S. Circuit Court of Appeals. After 35 years on the bench — and thinking about how those who represent themselves are treated — he came to the conclusion that they really aren’t given a fair shake. This well-regarding jurist — “provocative” is a label used by many — has written a self-published book that strikes at the heart of legal inequality. His controversial barbs are aimed at the staff lawyers who review pro se appeals before sending on recommendations to judges who, in most cases, just supply the dismissive rubber stamp. To try and level the legal playing field Posner suggested to eleven of his judicial colleagues that he review staff attorney memos before they’re sent for said rubber stamp.
All eleven of his colleagues turned him down.
Getting locked and loaded to plead your own case amounts to taking on an endeavor of extraordinary magnitude: think climbing Mt. Everest barefoot and without oxygen; requiring a heaping helping of intestinal fortitude or as the Finns call it: Sisu. Remember, you’re stepping into a ring populated by a clubby group of lawyers with their own special language and customs in a place where scratching one anothers’ back is something of a high art.
That late comedic genius Lenny Bruce — no stranger to the courtroom — famously quipped that “In the Halls of Justice the only justice is in the halls.”
A refinance in 2002, and again in 2004, with Angelo Mozilo’s crooked and corrupt Countrywide Financial sent her mortgage into the skeletal arms of Bank of America (after it acquired the failed outfit in 2008).
A series of nightmares began to unfold: the worst of which was her son’s suicide in January of 2011.
Then, her low-lying home sustained water damage in March, 2011, but her flood insurance check — following protocol — had to be co-signed by Bank of America officials who, in turn, took their sweet time in appending their John Hancock’s forcing Deborah to lay out enough dough to get herself heat, hot water and electric.
Hurricane Irene hit in August, 2011. Lots more damage.
While trying to rebuild she submitted several voluminous applications for a Bank of America loan modification.
No surprise: she was denied repeatedly.
Deborah did have an opportunity to sell her house to FEMA and the Township which offered her a buy-out given that she lived in a flood zone. Despite having an attorney Bank of America remained uncooperative and after months of back and forth she faced another problem endemic to foreclosure fighters: trying to prove clear title; a problem that emerged with the hydra-headed notion of mortgage securitization; slicing and dicing millions of mortgages and re-selling them to third party investors who proceeded to lose track of legal assignments (not to mention the mega-surfeit of documents sporting fraudulent “robo-signatures”).
Like something horrible out of a Stephen King novel the legal sleaze began to emerge from the moldy woodwork and peppered Deborah with all sorts of threatening foreclosure letters. With no disposable cash to lavish on a new attorney Deborah took to the pro se route and began filing her legal briefs in rapid order. Just as rapidly the judge began dismissing her efforts.
Thinking she still had a bit of judicial traction with a hearing set for September, 2017, she was suddenly notified by the court: no-go. With the stroke of his pen the judge issued what all foreclosure fighters fear most: summary judgment; essentially, your home is up for grabs.
Deborah isn’t the type to give up and has the gumption required for one pursuing justice via this route. In recent days she’s filed a motion to vacate the summary judgment and reconsider the foreclosure.
Legal inequality goes hand in hand with income inequality because frankly, if you don’t got the dough you ain’t gonna get a decent attorney to show, so what chance does a pro se litigant stand when faced with a legal onslaught by one of the many foreclosure mills that wring revenue from homeowner misery?
Props to those legal eagles and organizations that have kept the faith; folks like Linda Tirelli and April Charney (a/k/a “Loan Ranger”), graduates of Max Gardner’s storied, Bankruptcy Boot Camp, but the need for decent, committed, legal representation in the world of foreclosure far outstrips the resources of those who want to take on these arduous campaigns. And what about those who roll the dice and hook up with the nearest attorney who’ll take their case? There are many a foreclosure victim with a horror story to tell; a lawyer who takes the dough but when the judicial road gets tough this seemingly tough attorney gets going leaving client and home to the not-so-tender mercies of the vultures.
In an intriguing NYT op-ed — How Big Banks Became Our Masters — business columnist, Rana Foroohar, discusses the general fatigue among her colleagues when faced with yet-another-mind-blowing Wall Street scandal engendering, in her words, a BOB (”bored of banking”) response. In terms of the on-going foreclosure scandal there’s a related journalistic fatigue that sends the issue, impacting the plight of many, into a historical circular file labeled “legacy issue.”
One reviewer of Judge Posner’s book with the quirky title, Reforming the Federal Judiciary: My Former Court Needs to Overhaul Its Staff Attorney Program and Begin Televising Its Oral Arguments, called it “batshit crazy.”
Given Judge Posner’s predilection for taking on the plight of the legally disenfranchised I’d take that as a compliment.
Note: I wrote this piece a bit more than a year ago and Ms. DeStefano’s situation has changed only to the degree that she did find an attorney to take on an appeal. It’s a last-minute fight to save her home from a possible Sheriff’s Sale this week. Anyone who’s fought a foreclosure knows that the legal deck is stacked; the deck is marked and those looking to steal a home know how the game is played. Even the slimiest of foreclosure mills and/or their kindred spirits at “Cash for Keys” law firms have well-supported legal playbooks and resources designed to convince Judges to drop that Sword of Damocles and the victims, daresay, come from all political persuasions. The ones stuffing their pockets (and wallets) are charter members of that dubious club otherwise known as “Foreclosure Inc.”
Joel Sucher is a co-founder of Pacific Street Films (together with Steven Fischler) and has written for a number of platforms including American Banker, In These Times, Huffington Post and Observer.com. Currently, Pacific Street Films, is continuing work on a long-running (since 2007) streaming documentary series, Tale of Two Streets.