The "Rambo-type Foreclosure Litigator" -- A Rebuttal
I never knew that I was an action hero. A recent opinion piece at Housing Wire indicates that I may very well be one. As a consumer defense attorney, you soon discover that the members of the creditor's bar are generally not your biggest fans. After all, you're the one who defends those deadbeats who won't pay their bills.
In all seriousness, however, this isn't too far from the attitude that some creditor attorneys project. I have also met a good number of honest people who are just doing their jobs. This post, however, is about one of the "consumer lawyers are evil" creditor attorneys.
Troy Freedman, who is apparently a creditor's attorney, wrote an opinion piece about dealing with pesky foreclosure litigators. To his credit, he does describe some practices that are the hallmark of a bad attorney. For example, an attorney who raises an issue that is not relevant to the case is wasting time and money. However, Mr. Freedman also tends to lump all consumer defense attorneys and tactics into the same "Rambo-type" category.
As such, his advice to other creditor's attorneys tends to be shaded by his belief that we're all a bunch of shysters out to waste the limited funds of the beleagured big banks. This is absolutely not the case.
Here are a few of my main issues:
1. Mr. Freedman advises that debt collectors comply with the Fair Debt Collection Practices Act, because it only holds creditors accountable for their bad behavior and not consumers. Debt collectors should comply with the FDCPA because it's the law. The FDCPA was drafted to specifically address the unfair, deceptive, and abusive practices of debt collectors. While some consumers may insult, swear at, and threaten debt collectors, that's not a failing of the law. In a perfect world, everyone would be civil and we wouldn't need attorneys. In reality, creditors are in a position of power with relation to consumers. Creditors can lawfully ruin credit scores, garnish wages, file liens against property, and can also take any number of unlawful actions that make people's lives miserable.
Moreover, creditor's attorneys are still attorneys. They are professionals who are bound by ethical duties to their clients and to the profession. Behaving in a mature and reasonable manner is an attorney's job.
2. Mr. Freedman describes bankruptcy as a delay tactic. Bankruptcy is your right under the law. It is one of the most powerful protections available to consumers. It can be used (as he correctly notes) as a sword or a shield. However, it is not used as a sword to create delay. It is used as a sword when creditors violate the automatic stay or the bankruptcy discharge. Bankruptcy can also be used as a toolbox for repairing things -- for example, it is possible to reinstate a mortgage past the statutory reinstatement period in a Chapter 13 bankruptcy. This is an important tool that allows homeowners to keep their homes.
A consumer defense lawyer who ignored bankruptcy as an option would be foolish. It would be like a doctor ignoring bypass surgery as an option for treating heart disease.
3. Finally, Mr. Freedman seems to think that simply defending a foreclosure lawsuit is some nefarious plot founded in frivolity and the desire to make creditor's lives difficult. This cannot be further from the truth. Challenging a bank's standing to sue is an appropriate defense in many cases, in particular given the state of the bank's paperwork in most cases. Asking for discovery in a case is the action of a diligent attorney, not some fly-by-night shyster. Opposing a bank's attempt at obtaining a judgment of foreclosure and sale is the defense attorney's JOB.
Quite simply put, while everything in Mr. Freedman's opinion piece is relevant and applicable to the bad attorneys that are out there (and there are some), it is also a pretty decent description of the actions of a diligent and reasonable consumer defense attorney. The major difference is that a legitimate consumer defense attorney will do all of those things when appropriate and relevant, not when there is no point in doing them. Banks have massive amounts of power in this country. Consumers have a handfull of rights. Defending those rights is, more often than not, a noble pursuit.
If that makes me an action hero, then so be it.