Jury Trials in Foreclosure Defense Cases

I'm happy to write that I won a post-foreclosure eviction case several weeks ago using a new defense that I had been working on for the past year.  One of the critical reasons for this victory, I believe, was my client's decision to pursue a bench trial instead of a jury trial—a topic I want to discuss in this blog post.

The right to a jury trial depends on both the type of case and the court that the parties are in.  In Massachusetts, the particular cause of action determines whether a jury trial is available. Eviction ("summary process") cases, for example, entitle parties to a jury trial.  A party needs to claim their right to a jury trial in the beginning of a case, or it is otherwise waived. 

A non-jury trial goes before a judge and is called a "bench trial."  In a bench trial, the judge hears all of the evidence presented by the parties and, like a jury, determines questions of fact.  For example, in a post-foreclosure eviction trial, the judge will decide whether the foreclosing entity complied with all of the foreclosure requirements.

In a bench trial, as opposed to a jury trial, a judge is required to present his or her findings of fact.  In other words, the judge has to explain the decision that he or she made, as opposed to a jury trial, where the jury only needs to give its verdict.  

In my experience, I have found jury trials for foreclosure law issues to be extremely difficult.  The information is dense and difficult to explain to six non-lawyers who likely have no familiarity in this area of law.  More than once, I have seen jurors fall asleep during such trials!

The decision on whether a client should waive their right to a jury trial is theirs alone, and a single blog post cannot offer enough information to make this decision.  The point of this post is to encourage those involved in these cases to give serious thought about whether their case should go before a judge or jury. Rarely do "Perry Mason" moments occur in foreclosure defense; these defenses are often based on mountains of paperwork and uneventful testimony.  Because of this, jurors often may not understand the reasons why the foreclosure is void, even if the defect is crystal clear.  On the other hand, a defense based on a foreclosing entity's blatant disregard of the law may be enough to excite a jury and therefore justify a jury trial.

With this in mind, give serious consideration to the type of trial you request in a foreclosure defense case.  Better yet, speak with an expert before making this decision. 


Blog URL:  http://maforeclosurelawblog.sherwinlawfirm.com/2014/09/practice-pointers-jury-trials-in.html

Practice Pointers: Foreclosure Defense is Not About Getting a Free Home

When I started this blog almost a year ago, I wrote that one of the major myths of foreclosure defense is that a borrower can get a free home if they fight their foreclosure.  What was true then remains true today: foreclosure defense is not about getting a free home.

Obtaining a free home in a foreclosure defense case is a completely unrealistic goal.  While lenders and servicers have made a mess out of the foreclosure process--and continue to do so--these mistakes can, and certaintly will, be corrected at some point in time. Faulty notices can be corrected, loan modifications can be re-reviewed properly, and missing promissory notes can still be enforced.  A lender is doing a foreclosure because a great deal of money is at stake: anywhere from $100,000-$500,000 (and sometimes even more).  If a lender has made a mistake in the foreclosure process, it will be corrected: there is too much money involved to do otherwise.  In short, without dealing with the unpaid debt that caused the foreclosure, the ax will eventually fall for the homeowner. 

A much more realistic goal for foreclosure defense is affordability: obtaining a mortgage loan that a homeowner can pay.  A well-crafted foreclosure defense can convince a lender that a reasonable loan modification is a better option than spending years in litigation.  But, make no mistake: even the best lawsuit is never going to convince a lender to give up their mortgage on a home.  

As a foreclosure defense attorney, I practice what I preach:  I do not accept clients with unrealistic goals in foreclosure defense, nor do I advocate legal arguments that would amount to a court giving my client their home for free.  Attorneys and pro se litigants who do make these arguments cause much more harm than good; not only do they hurt their own cases, they make this area of law harder for everyone else.

Blog Post Link:  http://maforeclosurelawblog.sherwinlawfirm.com/2014/09/practice-pointers-foreclosure-defense.html

Good Read on the Pending Federal Court Lawsuit Challenging Local Ant-Foreclosure Ordinances

I previously wrote about the pending federal court lawsuit brought by several banks challenging local town and city anti-foreclosure ordinances.  The cases raises many interesting questions on law and public policy, and is a rare case of local state banks taking legal action to challenge anti-foreclosure laws.

Yesterday, the Boston Globe published a well written editorial by Paul McMorrow in favor of these anti-foreclosure ordinances. Mr. McMorrow raises some good arguments on this matter and is worth a read.  I'll be on the lookout for a similar editorial advocating the banks' position in this matter.   

Foreclosure Forum for Massachusetts Attorney General Candidates

The Massachusetts Alliance Against Predatory Lending ("MAAPL") has put together an excellent forum on foreclosure issues for the upcoming state primary on September 9th.  Interviews with the candidates for Attorney General are available here.

The Attorney General's office has enormous impact on Massachusetts foreclosure law.  The AG is responsible for issuing regulations on many of the state's foreclosure and consumer protection laws, and as the Commonwealth's lawyer, is responsible for representing the state in civil lawsuits.  Foreclosure issues do not always get front page attention during the election season, and MAAPL's forum gives attention to these important issues.