Making Your Point in Court

Among the Webinars we are planning to offer shortly is one called “Making Your Point: The Nuts and Bolts of Persuasive Presentation in Court”.

The problem with most presentations of foreclosure defense is that they focus exclusively on the technical requirements of foreclosure. That is necessary of course because the foreclosure fails if it is not done properly. But lacking in most presentations and present in all presentations in which the homeowner has won is the fact that the foreclosure is fundamentally wrong and that the court is not going to fill in gaps that the claimant can’t or won’t fill.

The important thing with both bench and jury trials in these matters is that the trier of fact is not going to give a windfall to anyone just because of a technicality.

That is why it is so important to get facts in front of them that show that this isn’t just about the fact that the banks did everything wrong, it is really about a greedy scheme in which they immediately made profits more than the principal of the loan and never told the investors or the borrowers about it. It is about the banks withholding disclosure that would have altered the terms of any deal with investors and borrowers.

Hence the foreclosure must be seen as wrong from a layman’s point of view. He or she must see this as wrong —morally corrupt— and that rewarding the homeowner is one way to regulate greedy corrupt practices that sent us into 2008 spiral while the banks continued to make money on the decline.
The missing link is that the real deal was securitization — the issuance and trading of securities and betting against both the “loans” and the securities that were issued. The real deal was not lending. Taken in that context, the implied contract requires that the investors and borrowers be compensated for the undisclosed risks and the undisclosed profits made as a result of their involvement in securitization.
But even if that compensation is not forthcoming, the prospect of the imbalance between the mountain of profit and the molehill of debt must loom large in order to get an actual award of real damages. The judge or jury must understand that not awarding damages to the homeowner is sanctioning the bad behavior fo the banks and further rewarding them by allowing them to retain ill-gotten gains.
My opinion is that taking this to the judge emphasizes the legal technicalities which are all on your side but that the judge will have the same bias — a windfall to a homeowner at the expense to the banks in whose stocks he or she has invested pension money and at the expense of securitization in whose certificates his pension money has been invested.

If the trier of fact decides that in the end it is fair and it is right that the foreclosure should proceed because the foreclosure will result in payment to someone who paid value for your debt and has suffered a loss from your refusal to pay, there is no technicality that will likely save you.

One Response

  1. Haven’t the banks been getting a “WINDFALL” for generations?

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