Hello there once again! A quick note about this blog. The plan is to build on one post after the other, so if you ever find yourself wondering what a term means or if the language seems too technical, I implore you to read earlier posts for some explanation. If there is really something that seems impenetrable, feel free to write me directly or in the comment section.
But first! A small look into where I spend the majority of my workday when I’m not in the office. Kings County Supreme Court, located at 360 Adams Street, is a beast of a place. A huge, massive building that extends across a full city block, it is a great example of Brutalist architecture. Although maybe not, as all the examples of Brutalist architecture I’ve ever seen have been a bit more innovative. Regardless, its design is gloriously spartan, except for the subtle golden flourishes that outline a few of the windows on the building’s facade. Within its walls are literally hundreds of bustling attorneys; professionals of all ages (well, between the ages of 26 and maybe up to 92 by my calculations) jockeying for position in court rooms, answering calendar calls, juggling multiple appearances, talking to each other about legal matters, talking about mundane topics, sports teams, electronics, movies, the news, politics, the weather, vacation, work conditions, etc. Some laugh with each other, some are all business, some fight, and sadly, some are seemingly committed to be absolutely obnoxious, combative, unprofessional jerks. But alas! It seems like there are those types in most industries, and at least I can take some comfort in the fact that the man turning red with rage as he yells at me and I stare back at him is at least sane enough to have gotten through law school, passed the bar, and secured employment.
A quick aside, and I have to say I can’t take credit for this, I learned this from my boss and its a terrific tactic. If anyone is ever screaming at you or trying to provoke you in a professional setting, the perfect thing to do is to stare directly back at them, smile, nod, and occasionally say “okay.” This will eternally frustrate the attorney who is deciding to attempt to badger you into some relief you’re not willing to give and eventually he will stop flapping his lips and his look of anger will even out to general dejection.
SO! HAMP with teeth, or rather, HAMP that banks can be forced to follow, not merely nudged in the direction of. I cannot comment on how it is in other states, obviously not as good as New York as, as I said in the last post, a California judge recently derided HAMP for not being able to be enforced/create consequences for the lenders. However, there is a trend in New York State among judges and even court-attorney referees (the ringmasters of the mandatory settlement conferences) whereby the banks, even non-HAMP participants, are being expected to adhere to the standards of HAMP for their evaluation of a borrower’s financial documents.
This trend has huge significance as mortgage settlement conferences are mandated to be done in “good faith.” And if “good faith” in mandatory settlement conferences becomes defined by HAMP standards, then HAMP has been given a mighty set of chompers. The best example of this trend being adopted by the courts can be found in the recent decision in Kings County by the Honorable Judge Kramer in the case of Flagstar Bank v. Walker (the full decision can be found at http://scholar.google.com/scholar_case?case=755268232775966676&q=flagstar+v.+walker&hl=en&as_sdt=4,33)
In Flagstar, Judge Kramer explicitly stated that good faith is defined by the absence of bad faith, and in looking for an actual measure of good faith, HAMP provisions for evaluations are the best guidepost. This decision gives foreclosure defense attorneys a huge tactical opportunity. By tying good faith to HAMP, a defense attorney has an obvious motion for bad faith available to her with any plaintiff that claims it does not participate in HAMP. Essentially the court is saying, “Oh, you don’t participate in HAMP? Well guess what, we all participate in good faith in these parts, so get evaluating under HAMP guidelines.”
As I said before, any questions, feel free to write me. Next time, I tackle the new law CPLR 3408 and what it means for foreclosure defense attorneys.