Demonizing The Rule Of Law

Via Atrios, Naked Capitalism discusses the new PR push in the foreclosure fraud scandal - the Wall Street Jorunal "reports" that it's all those damn lawyers' fault:

Let’s parse some sections of the article, starting from the top: "The paperwork mess muddying home foreclosures erupted last month. But the legal strategy behind it traces to a lawyer’s gambit in 2006 that has helped keep one couple in their home six years beyond their last mortgage payment."

[. . . T]he efforts of various attorneys who have been chipping away as aspects of this problem are incorrectly lumped together, as if there was really only a single, simpleminded strategy, a mere “lawyer’s gambit” which by implication, was copied by other low life attorneys. And this effort was to keep a deadbeat borrower illegitimately housed. Funny, this James Kowalski, the attorney behind this dastardly act, did what members of the bar normally do (at least if they are competent): they look for weaknesses in fact and law in the case presented by the other side. And part of the process involves, stunningly enough, depositions! Kowalski’s evil deed was that he was early, perhaps first, to find a robo signer, back in 2006.

(Emphasis supplied.) What the plutocrats are demanding, and what the Obama Administration seems to be accepting, is a continued moratorium on the rule of law and due process. It is a disgrace.

Full Disclosure, I am one of the demon spawn lawyers involved in foreclosure cases representing homeowners, and am speaking for me only

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    I'm Demon Spawn, too... (5.00 / 4) (#2)
    by rhbrandon on Thu Oct 21, 2010 at 09:26:38 AM EST
    I blame the Bill of Rights and our Anglo-American common law heritage.

    For non-civil lawyers (5.00 / 1) (#4)
    by Xclusionary Rule 4ever on Thu Oct 21, 2010 at 09:39:41 AM EST
    A brief guide to foreclosures and the fraud allegations here.

    Go BTD GO!!! (5.00 / 1) (#6)
    by Ga6thDem on Thu Oct 21, 2010 at 09:43:58 AM EST
    I must tell you that I checked the MERS system that someone linked to the other day and it had a completely different bank as the lien holder for my mortgage. I have no idea how correct MERS is but it is troubling to find out that I may have been paying the wrong bank. Fortunatley, I have a record of every payment ever made to Bank of America.

    Scary (none / 0) (#12)
    by Inspector Gadget on Thu Oct 21, 2010 at 10:11:02 AM EST
    The people I met who lost their home to foreclosure because they were paying the wrong bank still lost their home to foreclosure. They had their bank statements and proof of payments, too.

    Well then... (5.00 / 4) (#7)
    by kdog on Thu Oct 21, 2010 at 09:45:16 AM EST
    thank the sun god for demon spawn:)

    Say homeowners are getting shady for the sake of argument, why is it a "lawyer's gambit" when a homeowner finds a loophole, but when banks do it it is sound business to serve shareholders?  

    Damn this "different rules, different fools" phenomenon is more rampant than I even imagined...an epidemic!

    No kidding (none / 0) (#8)
    by Militarytracy on Thu Oct 21, 2010 at 09:52:31 AM EST
    And if lawyers don't close those loopholes all the way around, people will get taken.  I live in a very nice neighborhood.  It is a subdivision built around some the few lakes in the area, stocked lakes for bass fishing.  Things for banks are not going to get easier.  They are going to have to work for a living now too, the easy rip offs are drying up or gone.  Do I really believe that when the housing the market gets firmer and steadier that some bank won't use some screw up on me to foreclose on this property if someone thought it would improve the bottom line?  I trust nobody anymore in any of this.  The fraud that was perpetuated is astonishing.  It is electrifying how criminal the people working in the mortgage business thought they could be, they will continue to be so too to whatever degree they can get away with.

    It's funny (5.00 / 1) (#18)
    by lilburro on Thu Oct 21, 2010 at 11:39:13 AM EST
    (well, not really) I was thinking the other day about how Kafka's novels were about how the law is of the utmost importance, to the point of complete irrationality/compulsion and to where it can destroy a human being.  This perspective struck me as still relevant and accurate.

    But it seems less relevant lately.  Banks get away with absolutely everything.  The choice is whether to prosecute or punish (of course the Bush War Crimes being a prime example).  We know the law is not executed without regard to human beings (or decency), as it is in Kafka's novels.  It is executed with regard to human beings, but only to the rich.  The rest of us see it and know we're getting uniquely screwed.

    I'm sure some will tell me that's nothing new but it's pretty damn blatant nowadays.

    Go, BTD, go! (5.00 / 2) (#20)
    by StephenAG on Thu Oct 21, 2010 at 12:03:50 PM EST
    God bless you "Demon Spawn"! And while you are at it, please rain some Ragnarök on their butts!

    Isn't it great that we have a constitutional law professor in the White House to help lead and guide us through these thorny legal issues? Wow!

    I wish I still had my notary stamp... (5.00 / 1) (#21)
    by kdog on Thu Oct 21, 2010 at 01:56:27 PM EST
    I'd write you up a title and stamp it...sh*t I'd be the Robin Hood of homes...Bank of Nautingham would have a bounty on my head the size of a small nation's GDP, I'd be passin' out dwellings like Halloween candy.

    Maybe I don't even the stamp...Titles!  Get ya titles here!  Home, Auto...I got titles! :)

    If they think due process is a lawyer trick, we could really show 'em some tricks...but alas, I see France and we can't hold a candle to France...and to think we showed them how it's done 300 years ago, oh how the mighty have fallen.

    THe best part of the (5.00 / 3) (#22)
    by Anne on Thu Oct 21, 2010 at 03:56:20 PM EST
    naked capitalism post is the quoting of lawyer Kowalski from the comments section of the WSJ article:

    Despite my best efforts to answer all of Mr. Whelan's questions, the article contains a number of misstatements. First, Mr. and Mrs. Jackson did not face a foreclosure hearing after simply stopping payment - they paid the entire amount due per a statement sent to them by GMAC, and paid by certified check. GMAC mistakenly refused the check, alleging it was an NSF payment (not possible with certified funds), then placed the couple in foreclosure. I was simply trying to track the facts of the payment by deposing a witness who had sworn in court documents that she had reviewed the entire file and was familiar with the payment history, when, as it turned out, she was not only not familiar with the payment history, but the substance of her entire affidavit was false, including the allegation that the affidavit was sworn to in front of a notary. These were substantive questions I needed answers to - not an excuse for a delay. Further, the judge did not "throw out the case" - it is still pending, with GMAC still suing the Jacksons, years later.

    I, and most of my fellow consumer attorneys who are members of the National Association of Consumer Advocates, do not raise these issues for delay - we raise them because we all have cases (this is the bulk of my foreclosure defense practice) where all or part of the foreclosure is purely the fault of the servicer or mill law firm - from homeowners whose payments were misrouted by the servicer, to servicers who simply changed the address of the property and then force-placed flood insurance, to servicers who ignore insurance plans the borrowers paid for (all examples from my cases) to servicers who refuse to even accept HAMP-type loan modification documents - all are substantive, real problems that were not the fault of the borrowers. The deposition was, in the Jackson case, merely an effort to get at the truth of the reversed payment - instead, GMAC admitted to wholesale manufacture of court documents, then promised to fix the practice, then continued that practice unabated for 4 more years.

    Most of what we have uncovered are criminal violations - false testimony under oath, notary fraud, etc. These problems will continue until the attorneys general who have formed a task force recognize and confront the significant criminal violations, and will continue unless we have real reform of the servicing practices that emphasize speed over the truth.

    Not a single one of my clients wants (or deserves) a free house. What they want (and deserve) is for their voices to be heard, and, for better or worse, consumer lawyers are the only ones capable of achieving this at the moment.

    Oh, and it would have been nice if Mr. Whelan had taken the time to spell my name correctly throughout the article.

    Given that the author of the WSJ article clearly - according to Mr. Kowalski - had all the information he needed to accurately represent the efforts of consumer lawyers, and then chose to simply write something else - something that shifts the focus away from the actions of the banks and servicers and foreclosure mills, and blames the lawyers for the homeowners for the whole mess, should tell you a lot.

    They're working on "the fix," and it obviously doesn't involve holding anyone in the lending industry accountable.  As per usual.

    "Demon spawn"? (none / 0) (#1)
    by oculus on Thu Oct 21, 2010 at 09:15:08 AM EST
    No way.

    In some revolutions (none / 0) (#5)
    by cal1942 on Thu Oct 21, 2010 at 09:43:36 AM EST
    In this case the ongoing right-wing revolution - the first task is to kill all the lawyers.

    It's been going on for years and isn't surprising.

    rhbrandon is right; a magnificent heritage flushed away.

    Nah (none / 0) (#9)
    by MO Blue on Thu Oct 21, 2010 at 09:59:08 AM EST
    They love lawyers and judges as long as they are their lawyers and judges. It is only the oppositions lawyers and judges that they want to kill off.

    Ian Welsh on (none / 0) (#11)
    by MO Blue on Thu Oct 21, 2010 at 10:10:26 AM EST
    the conservative rich and the rule of law.

    ...The rich use law much more than the poor or middle class, or even the upper class. They sue all the time, their corporations are creatures of law, and so on.  so they should want to maintain the rule of law.  What benefits everyone, benefits them too.

    All true, except that they don't think they're losing the rule of law.  They think that the law will protect their interests, and not those of others.

    Since that is already mostly their experience (the law is a bludgeon for them rather than against them more often than not, in part because only they can really afford to use it to its full extent) they don't see any reason why they can't tilt the field even further. link

    Yep, they love THEIR lawyers (none / 0) (#14)
    by MO Blue on Thu Oct 21, 2010 at 10:59:21 AM EST
    Via -Atrios

    In a complaint filed this month in Washington, D.C. federal court, Bank of America said the FDIC has wrongly denied claims by Ocala noteholders to recover from Colonial Bank and an Illinois lender also in receivership, Platinum Community Bank.

    Bank of America accused executives at Taylor Bean, Colonial and Platinum of having fraudulently schemed to "double- and triple-pledge mortgages and steal assets" to hide their faltering conditions as the housing market declined.

    BTD, question if you don't mind, (none / 0) (#10)
    by Wile ECoyote on Thu Oct 21, 2010 at 10:06:58 AM EST
    Can you think of anytime the rule of law should not be followed?

    Not off the top of my head (5.00 / 3) (#13)
    by Big Tent Democrat on Thu Oct 21, 2010 at 10:11:27 AM EST
    How about you?

    IANAL, but what about (5.00 / 0) (#15)
    by Farmboy on Thu Oct 21, 2010 at 11:07:29 AM EST
    Jim Crow, DADT, or other laws that violate human rights?

    Thats what I was thinking... (5.00 / 0) (#17)
    by kdog on Thu Oct 21, 2010 at 11:30:23 AM EST
    death sentences come to mind as well as a good time to void the rule of law.

    How silly (none / 0) (#16)
    by Cream City on Thu Oct 21, 2010 at 11:09:47 AM EST
    since it became absolutely clear to me in my divorce that the ex's lawyer absolutely was demon spawn.  But, of course, my lawyer was a saint.

    Duh, it's called advocacy.  What a concept.

    That said, I'm glad to know that BTD is on the saintly side of we-the-homeowners. . . .

    MOre and more of (none / 0) (#23)
    by BackFromOhio on Thu Oct 21, 2010 at 04:22:35 PM EST
    no accountability for those responsible.  Sounds like more of the same complaint about voters, Dems or what-have-you 'whining' -- the message being, do assert your legal rights, you're at fault for whatever the 'bad guys' did to you.