Victory for homeowners: the judge who rejects foreclosures when he finds fault in the loan

An article captioned A "Little Judge" Who Rejects Foreclosures, Brooklyn Style, that appeared in a recent edition of The New York Times, describes a judge in New York who, frustrated over the fact that many individuals against whom judicial foreclosure proceedings had been instituted, failed to appear to contest the proceedings, and therefore defaulted, allowing an uncontested order of foreclosure to be entered against the homeowner.

On a review of the pleadings filed in the cases, the Little Judge from Brooklyn discovered that many of the mortgages were defective and unenforceable. He then started to review the pleadings filed in each case, and when the papers clearly evidenced a defective mortgage, the violation of state and/or federal law, or that the foreclosing party lacked standing to commence the action, His Honor simply dismissed the foreclosure action.

The question to be asked is whether the action of the Judge was what some would decry as "judicial activism," or was it the pure rendition of justice? There are those who would either side of this question.

"But what is this esoteric question of judicial philosophy doing in a bankruptcy blog?" you might ask.

Well, to be just, the law must provide meaningful rights and remedies, and some firmly believe that a Court cannot be allowed to be a hand-maiden to unjust results. Being an attorney is a difficult task, all too frequently presenting philosophic, ethical and even moral dilemmas. One must ask one's self if it is ethical, moral or just for an attorney to institute an action to foreclose a real estate mortgage, for example, that he knows or has reason to believe is invalid or vocative of the law?

A good lawyer will question his own client, and in the interest of justice, pursue a course of action that is ethical, moral and just.

What do you think ?

by: Eugene B. Berman, Esq.

Photo Credit: Justice Arthur M. Schack, by: Nicole Bengiveno/The New York Times