Anti-foreclosure activists in New Jersey. The struggle against home seizures by the banks is continuing across the U.S., a photo by Pan-African News Wire File Photos on Flickr.
By David Hungerford
fightbacknews.org
December 28, 2012
Trenton, NJ, - The people’s struggle against foreclosures took a new turn before the New Jersey Court of Appeals here, Dec. 19.
Foreclosure today is capitalism in chaos, a capitalism of swindling even on its own terms. New problems require new tactics of struggle.
In early December, Attorney Adam Deutsch was invited to speak to the Coalition to Save Our Homes, a group in Essex County that organizes homeowners to take the initiative in the struggle against predatory lending. He suggested that one thing people can do is turn out and pack the courtroom when important foreclosure defense motions are presented.
He later mentioned a case in progress that shows the marks of chaos. The bank, HSBC, had never met the requirements of law to prove it held a financial interest in the mortgage. In the foreclosure trial the judge pointed out to the HSBC attorney that the mortgage note, the crucial point of the bank’s financial interest in the property, had not been submitted to the court. The attorney replied that no defense was being made.
No one would argue that, if someone walked into a store when no one was there, they could lawfully clean out the till and walk off with the money. The judge should have stopped right there and not allowed HSBC to continue until it proved it had a claim on the house. Instead HSBC was allowed to proceed. This defect and others in HSBC’s case were not removed in the foreclosure hearing when final judgment (i.e., order of foreclosure) was granted against the homeowner.
A big problem for the defense appeal is that the homeowner did not come to court to defend before judgment of foreclosure was issued. The defense therefore had to deal with procedural issues of delays in filing, as well as seizure of property by a bank with no proven financial interest in it. The defense also says lower court decisions were made in error and should be reversed.
These issues figure in millions of predatory lending cases. Courts far too often exhibit a double standard. Homeowners are excused for nothing and banks for anything.
The difference in the Dec. 19 hearing was that homeowners, activists, and organized labor representatives showed up in court. A case that ordinarily would have been heard before an empty courtroom was heard before a body of citizens with their own sense of justice. The discomfort of the bank’s attorney was obvious. He began in a mumbling tone of voice and an attendee called out, “We can’t hear you.” Ordinarily that is a big no-no in court but the only result was that the attorney spoke up. He distanced himself from the issue of ownership of the mortgage note. The court asked if the bank had submitted properly certified proof of ownership - the defense contends it had not - and the response was a stammered, “I guess so.”
Decisions are not delivered at appeals court hearings. The judges take the case under advisement and issue their decision later.
However the decision turns out, the day showed the way forward. The people’s forces felt a sense of unity and empowerment. We can fight the banks, we can fight foreclosure. We don’t have to settle for making the best of a bad situation. We can attack the bad situation itself. If there is no justice in the halls of justice we will bring our own standard of justice. We will depend on ourselves to build a broader, stronger, more united movement for people’s economic justice, and we will succeed.
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