The New York Times ran an article on Saturday that takes a look at judges that are taking a critical view of banks in foreclosure matters. As one might expect, the cases discussed in the article are from East Coast states--New York and Massachusetts. Both NY and MA have been the home of what are considered landmark decisions in favor of homeowners.
However, does this mean that judges are becoming more homeowner-friendly on a national basis? Signs point to no. Even the article is guarded about the extent to which judges are beginning to side with homeowners. Here in Illinois, it seems that our judges trend more towards the bank's side of things. However, this can vary from county-to-county and judge-to-judge. The vast majority of the judges that I appear in front of will entertain creative legal arguments if there is a basis for those arguments.
On the other hand, arguments that should carry the day don't always succeed in Illinios courts. For example, arguing that a bank lacks the standing to bring a foreclosure action because the homeowner's loan wasn't properly securitized tends to be a losing argument in Illinois state courts. At the federal level, some judges in the Northern District of Illinois have ruled in favor of the argument and some have ruled against it.
However, attacking standing based on a securitization fail is not the only argument out there. As banks continue to violate the guidelines for the Home Affordable Mortgage Program, we are gaining traction with arguments based on unfair and deceptive business practices. In the case of Boyd v. U.S. Bank, the court held that failing to comply with HAMP guidelines is a "hallmark of unfairness." Boyd v. U.S. Bank, 787 F.Supp.2d 747, 753 (April 12, 2011).
Even though courts are beginning to recognize unique theories of law as valid, it is more a function of persistence and sound reasoning than it is a shift towards homeowners. Law gets made when judges issue written, published opinions. At the state level, this means that you must appeal. At the federal level, the opinion of a district court judge may be published. The more often the consumer defense bar keeps pushing novel arguments, the more likely that they will catch on.
We need more people practicing in this field. More people need meaningful access to legal services. Things are changing because persistent, educated advocates continue to push.