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I obviously cannot compact 47 years of courtroom experience into a single article or, for that matter, any less time than I spent in courtrooms, conducting thousands of hearings and trials. But I can distill what I think made me successful (most of the time). So I have decided to start suggesting things that pro se homeowners and/or their lawyers should start saying in court — using their own styles and their own feel (“the vibes”) of the judge and the courtroom.

It is axiomatic that any homeowner who comes to a courtroom to defend their home from a claim pleading for foreclosure — either in judicial or nonjudicial settings — will encounter resistance at the very least and outright hostility in many cases. This is not just in foreclosure cases. The judge is human and susceptible to all kinds of bias and prejudice, just like anyone else.

The first rule for anyone who is entering the courtroom is to stop attending that anyone is interested in anything you have to say. You have to make them interested. These are all people who listen and argue cases all day long. The second rule is that you have to understand and accept that you have a very limited time to interest the listener (the judge) in what you are saying.

I don’t know who first said it but they were right. Tell him/her what you are going to say, say it, and then total tell him/her what you told him/her. You should practice in front of a mirror until you have convinced yourself that you have delivered the deathblow to your opposition. You need to be confident, assertive and extremely clear.

You should first clarify your specific goal or desired outcome. The more specific and clearly defined the outcome, the more powerful the argument will be.

Here are some successful examples of real-life situations where I was the defense lawyer and corrected the judge, who eventually ruled in my favor rather than the way he wanted to.

1. A criminal case in which my client was accused of assault which included the lesser included offense of reckless display of a firearm. Jury trial. Assault means by definition, not the act but the impact of the act — i.e., a person in fear for their life or limb. In my closing argument, I successfully convinced the jury that my client was not guilty of assault, and I suggested a conviction for the reckless display of a firearm. The  Judge did not like that. The Judge wanted to sentence my client as though he was found guilty of assault. It was obvious from how the judge started to characterize the case when he was about to pronounce sentencing. He was about to issue a maximum sentence allowed for the misdemeanor — 12 months. I interrupted the judge and said, “Judge, excuse me, but I believe you are displaying bias. From your characterization of the offense, it is obvious that you want to sentence my client for the offense you believe he should have been convicted. But he wasn’t. He was convicted of a misdemeanor, not a felony, and has no prior criminal history. I suggest that in lieu of sentencing today, you continue the case until the presentence investigation can evaluate the case for sentencing.” Here is what I was doing: First, I stopped the judge forcefully. I wasn’t quiet. Second, I raised the issue of bias, and he knew I was right. Third I gave him an off-ramp.  In this case, the Judge should have rendered a sentence of time served but instead imposed a sentence of 4 months which, with good behavior, meant about 3 months. that was more than my client should have received, but that sentence made the appeal futile since he would be out by the time the appellate decision was rendered. I didn’t get everything I wanted. But I got most of it.
2. Foreclosure cases: I have had several occasions on which I told a very irritated judge that I thought he or she was biased. “Judge, I recognize the irritation in your voice and demeanor. Are you closed to the possibility that the homeowner doesn’t owe the alleged debt to the claimant in this case, or have I done something to offend you?” In a bar, I would be punched or even trampled. But in a court of law, the Judge is required to maintain a good judicial demeanor. Every Judge that loses their cool on the bench is susceptible to removal from the court. There has never been an occasion in which the judge did not allow the time required to present the defense; frequently the same hostile judge sustained my objections, granted my motions to strike, and ruled in favor of the homeowner.

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Neil F Garfield, MBA, JD, 75, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE COMMENTS ON THIS BLOG AND ELSEWHERE ARE BASED ON THE ABILITY OF A HOMEOWNER TO WIN THE CASE NOT MERELY SETTLE IT. OTHER LAWYERS HAVE STRATEGIES DIRECTED AT SETTLEMENT OR MODIFICATION. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.

But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 14 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

Yes you DO need a lawyer.
If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.

Please visit www.lendinglies.com for more information.

 

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