Appellate Argument- appears good result

Posted by kevin on February 3, 2012 under Foreclosure Blog | Comments are off for this article

Appeal dealt with whether trial judge improperly refused to set aside default judgment.  Clients were older, African American couple- hard working, nice people who got taken for ride.  ARM with max interest of over 14%.  Had predatory lending, consumer fraud, HOEPA, common law fraud issues in addition to standing.  Trial judge did not see it our way, so filed an appeal.

On our website, we say that we are not a modification company- we fight foreclosures in court.  Why? Because we believe that our clients are going to get a better shot in front of a judge or judges (appellate level) than they are going to get with a servicer on a HAMP modification.  Yes, it is more work and more money, but we believe that ultimately, the borrower who fights gets a better result.

I submitted a 40+ page brief and a reply brief.  Brief dealt with all the issues.  However, I knew that on oral argument, I had to focus  on one or two main issues.  I decided to go with the standing issue; that is, the right of the plaintiff to bring action.  This issue was intertwined with UCC concepts that are pretty esoteric and as boring as watching paint dry.  The second area dealt with a bread and butter litigation issue- did the plaintiff prove its case. This issue has been the subplot of all the big cases in NJ dealing with standing

My three judge appellate panel in Newark was very good.  You could tell that they read the papers carefully and were prepared.  I started with the UCC arguments which can be confusing.  I have been fine tuning this aspect of law now for the better part of three years in my foreclosure practice, have spoken with law professors on the issues, and still have gaps in my knowledge.  So, it was not surprising that the judges were having problems getting their collective arms around some of the more obscure issues.  I decided to shift gears into evidence issues.  The proofs supplied by plaintiff were either not relevant or were inadmissible hearsay.  Immediately, the panel jumped on this issue.  They understood and, more importantly, seemed to agree with my position.  Now, was the time to sit down and shut up- and let my adversary argue.

From the git-go, the panel peppered my adversary with questions about the evidence.  To his credit, he admitted that plaintiff’s proofs were lacking.  The presiding judge ended argument by saying that plaintiff should consider settlement.

Now, it is not over until we get the order.  But, we certainly believe that the default judgment will be overturned and my clients will get their day in court.  The key turned on litigation basics with a lot of the fancy stuff thrown in.  This result could only be attained by litigation- by fighting the foreclosure.