Class Action Lawsuits to Enjoin Foreclosure: An Argument for Clinical Involvement

Paper Title

-- By JonathanWaisnor - 13 Apr 2010

Section I

On March 2, 2008, the Attorney General of Massachusetts obtained a preliminary injunction against Fremont Mortgage Group, a mortgage lending firm based in California that held approximately 3,000 loans in the Commonwealth of Massachusetts. This action was brought under the Massachusetts Predatory Loan Practices Act and the general consumer protection statute (Mass Gen Laws 93A). The injunction requires Fremont, or any company that purchased a loan from Fremont, to submit these loans for review to the Attorney General's office before foreclosure. Judicial bypass will only be granted on a case by case basis, and the cost to Fremont is so great that the practical effect of the law is a moratorium on foreclosures by this company, keeping 2200 people in their homes for the foreseeable future or allowing them to renegotiate the terms of their mortgages on very favorable terms. Investors and mortgage lenders in the Commonwealth are bracing for more lawsuits, some are threatening repercussions in the form of reduced business in the Commonwealth, in a move hearkening back to the "I'll take my ball and go home," rhetoric of the playground.

Lawsuits against mortgage lenders and banks are on the rise, as is to be expected during the recession. Often the plaintiffs ask for money damages, but also for renegotiation of the terms, injunctions stopping foreclosure, or striking of particularly unconscionable provisions. The cases can take years to resolve, but if a preliminary injunction is granted, the people involved can begin to see immediate benefit. Often the lender will simply settle or renegotiate to avoid the costs of protracted litigation. Widespread use of the these lawsuits can radically shift the balance of power between an individual borrower and his credit holder.

To bring one of these suits, a plaintiff would need an applicable consumer protection statute and a lawyer willing to take the case. Although the Massachusetts Predatory Loan Practices Act is particularly expansive, other states have similar statutes that provide for causes of action Once a sufficient consumer protection statute is found, the In Massachusetts, the Attorney General's Consumer Protection Office brought the suit. It is unwise to rely on similar action by attorney's general in other states. For one, banks and other lenders may spend enormous amounts of money to ensure the election of AG's who avoid these types of lawsuits. Taxpayers may not want their money being used to bail out people, even neighbors, who they consider to have acted unwisely.

A coalition of faculty-run, student staffed law clinics, pro bono consumer protection attorney's, and unemployed recent graduates could band together to bring these lawsuits on behalf of consumers.

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Subsection B

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Section II

Subsection A

Subsection B

Students are exposed to the law during our first year of law school as a series of legal battles fought in appellate courts. They are given casebooks, which are collections of cases arranged in an order the author feels best highlights the evolution of law in a particular subject. Although some cases warrant greater exposition by the casebook author, mostly they are unedited opinions, with the facts filtered through the pen of the opinion writer. At the end, one side wins, the judgment is affirmed or reversed, the law expands or contracts, and the outlines grow. This system gives students little context or understanding of the concerns involved. Notably absent from the casebook are the answers to questions like: what happened before someone walked into a law office, what was going on politically or socially during this time period, or how events in a court of law changed the lives of everyone involved.

This method of teaching has many effects on a first-year student, but this paper concentrates on the emphasis on legal reasoning- the process the judge followed to reach his conclusions, as described in the text of the opinion. Law students dissect the opinions, sometimes line by line, and generally assume that the holding follows logically from the line of reasoning. On the exam, we are evaluated not only on our knowledge of the rules, but on our legal analysis. So-called policy considerations are considered optional, something to include at the end of the essay as long as you have spotted and fully analyzed all the issues.

This way of thinking about the law is necessary because this is how these particular legal battles are fought and need to be fought in order to maintain the myth that the law exists independently of human concerns. Like Moglen's young Constitutional Law professor said, we must learn the wrong way before the right way, and that is so we do not make the mistake of not taking this myth seriously enough and being bad lawyers. Law students must learn legal reasoning independent of other consideration as the basis for law because that is all law students are prepared to do once they become lawyers.

However, this method of teaching creates a certain picture of the law that influences the development of students as lawyers- that is, they do not learn to fight wars. They do not learn, for example, how the losing side in a case could have avoided the negative decision by not ending up in court or found a way to fight another battle- this time on more favorable legal grounds. This might be acceptable, if law students were expected to go out into the profession and learn to fight battles as steps to learning how to fight wars. However, law students are not able to do this, because they are very quickly offered positions with mercenary companies in which they will fight a never-ending series of battles for masters they do not choose. These companies are called law firms.

Wars are fought by lawyers (and people) on crusades. They involve much more than effective legal reasoning. Some lawyers must meticulously plan their wars, because they know that the opposing side is better entrenched or has more money or friends in higher places. Lawyers can be both generals and soldiers in these wars, or can be one or the other. A war, however, might involve other actions that legal reasoning. It might involve diplomacy, logistics, supply, funding. It might involve setbacks or sacrifice on the road to overall victory. It might be fine to lose a battle in order to avoid losing an even bigger one down the road.

Law firms have no interest in associates who can fight wars. Fighting wars is for lawyers with causes- and the law firm's cause is the self-perpetuation. Law firms enter the picture when war is on the horizon or already afoot, when one side needs a top litigator to argue in appellate court or Skadden Arps to flood some poor small-town practitioner with discovery motions. Law firms are paid a lot of money to do this, and they train their young warriors accordingly.

But what happens when those clients- usually the great corporations of American capitalism- decide that they would rather have lawyers who fight for their cause, or at least that hiring mercenaries who only know how to fight battles isn't enough. The great cities of medieval Italy learned the hard way that mercenaries often exorted money, ran from fights they couldn't win, and sometimes stormed the very cities that hired them. When it became viable to train and equip professional armies, the mercenaries lost work or were relegated to work too menial for the professional armies of citizen-soldiers.

This is the crisis that law schools will face, and the one that might precipitate the greatest change in how America teaches its lawyers. Activism by the students or change initiated by the faculty may be both impractical or ineffective in the face of external pressure. What will drive change in law school is the death of the mercenary system in favor of lawyers who are professional soldiers for their cause. To succeed in this era, law students will then need to learn not only how to fight the battles, but how to fight the wars.

Most law students came to law school to fight wars, although, except for perhaps a few, they had very little experience in how to do this. They thought that law school would equip them with the tools and strategies to fight wars, which would include winning battles, and might even involve being a mercenary for a few years. They quickly learn that unless they have a crusade picked out in their first-year of law school, they will be branded as mercenaries and won't be thought of in the same way as the members of the "Public Interest Holy Order". So they go to the mercenaries, who offer them easily obtained employment at an excellent rate.

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