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Desensitization of Foreclosures – The Tragedy of the Business as Usual Approach

August 15, 2014

DISCLAIMER: THE CONTENT IN THIS BLOG IS FOR INFORMATION PURPOSES ONLY AND IS NOT TO BE MISCONSTRUED AS LEGAL ADVICE! Anthony Martinez is a Litigation Discovery Expert, Consultant and Strategist. Neither Anthony Martinez nor his firm AMA engage in the practice of law and only provide Case Management Consulting (“CMC”) and Legal Process Outsourcing Services (“LPO”) to licensed practicing attorneys. AMA will provide public information only and will not provide any kind of advice, explanation, opinion, or recommendation to a consumer about possible legal rights, remedies, defenses, options, selection of forms or strategies.  If you are not an attorney, AMA encourages you to consult with a licensed attorney in your area regarding the statements made in this blog and the use thereof.

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There is an attorney I’ve been working with as of late who tends to be overlooked and is severely prejudiced unfortunately because of her physical appearance.  She’s a very emotional and passionate attorney.  At times my job, when working with her, sometimes becomes about keeping her calm rather than keeping her on point with the arguments.  She’s a constant reminder to me about why I continue to pick up the sword every day and do battle against the dark side.  Now its just a matter of continuing to perfect the arguments and keep winning cases with her and the clients she represents.  It’s interesting to see such a huge contrast between an attorney like this versus the plaintiff’s attorney and the court’s demeanor and predisposition that the business of foreclosure is simple – you took out a loan, you failed to pay, you’re a deadbeat and now its time for us to take your home.  How foreclosure became so desensitized is beyond me but foreclosure has a business as usual approach and its sad to see young plaintiff lawyers and courts be so emotionally detached from the destruction of families and the American dream.

Cases are about the facts and should not be about emotional pleas.  The problem is, 99% of foreclosure cases are not about the facts – they are about facts that have been severely skewed.  Homeowners are emotional and screaming fraud and screaming injustice – not because they stopped paying their loan – but because there are factual reasons WHY they stopped paying.  There are factual reasons WHY they are being foreclosed upon that lends favor to non-payment.  Sure “plaintiff is the holder of the note” and under 673.3011 as the holder you are “entitled” to enforce the note however that’s nothing more than an angle – a technical legal position at best.  Being a holder doesn’t play into the facts of the loan or the reason behind foreclosure.  At best the technical nature of using the holder argument has provided the path for stealing homes based solely on a legal position.  Let’s face the real facts, the plaintiff didn’t buy the loan for face value or real value.  The documents created to clear the path for the legal position of holder was exactly that – a created path.  It’s not a debt actually owed on the loan to a lender.

We all know these loans were fractionalized, monetized and paid for in leaps and bounds.  We also know the default trigger was designed to collect the insurance for full value as well.  We don’t need to get into the bailout money.  At best foreclosure cases are servicers using foreclosure to mask equitable subrogation.  Servicers are using the courts as a means to get back the money they dished out under third party contracts requiring them to make payments on behalf of the borrower so no default actually occurs.  So you have default swaps and payments down one avenue, insurance payments down another avenue, foreclosures down another avenue and fractionalization and monetization money down another.  All of it designed to make money hand over foot at the expense of the unknowing borrower who clearly had no idea all these people would be benefiting off of his loan which he always believed to be a simple arms length transactions where he would be protected.  So why would loan payment double or triple when the financials make clear this is what I can afford and this is what you’re approving me based on?  Why would a “lender’ institute a forced place insurance policy that would triple the payment knowing the borrower can’t afford it?  Clearly these are steps to put the borrower in a forced position.  So let’s not pretend this is about deadbeats refusing to pay especially when the only reason plaintiff’s offer modifications is to get $1,500.00 from the government for each loan it entertains knowing it has no intention on modifying the loan.

The tragedy of desensitizing foreclosure and treating it like business as usual is that homeownership does not represent business as usual.  It represents the American dream.  It represents family, the wife, the husband, the children, the dog, the white picket fence, the job, the family package as a whole.  Home represents stability, safety and security for the family.  For children, home and their bedroom represent a sense of security that no move into another home will ever cure.  This is why the choosing of a home for a family is such an important decision – because so much is riding on it.  I’m an advocate of the adversarial process but foreclosure cases are not being disposed of on the merits and they are not being debated based on the true facts of the case.  They are being disposed of as a matter of course to the detriment of family.  They are being disposed of to clear dockets – business as usual.  There are kids and adults attempting and in some cases succeeding in committing suicide because of final judgment being entered and their home being sold.  At some point we have to stop falling back on the crutch – its my legal obligation – and start realizing its our moral obligation to always do the right thing.  When you keep falling back on your “legal obligation” and keep ignoring your moral obligation as a human being, you cannot be surprised by the response of the people to lash out against you.  Just look at the Ferguson controversy – case in point!

– God Bless!

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