Spring Conference Review - reomac

By Berry
F. Laws III,
Esq.
LATE BREAKOUT SESSION 3:
Litigation Update
Moderator:
Panel:
Dean Talaganis, Morris, Hardwick, Schneider
Greg Ruzicka, Ruzicka & Wallace
Matt Abad, Burke, Constanza, Cuppy LLP
Donna LaPorte, Wright, Finlay & Zak, LLP
Judge Mitchell Goldberg, Bankruptcy Judge (retired), California
The discussion began on the issues
of federal, state and local trends.
Current trends in federal and state
courts include activism by judges and
legislation to slow the foreclosure process,
and court-ordered mediation (in the
states of New York and Indiana). Money
judgments are more difficult due to the
requirement of proving debt; the lender
must produce the note.
Donna LaPorte emphasized the need to
actually know the law. In California,
both state and federal courts, “one must
be well versed in the practice of law and
have a strong knowledge of the rules of
evidence.”
Dean Talaganis addressed the issue of
eviction, stating “it was essential to pull
chain of title prove the date of the Deed
of Trust.” Also in California, the file must
reflect a return of service of process, as
debtors are now challenging proof of
service.
Judge Mitchell Goldberg spoke regarding
trends, which he divided into several
categories: Trend 1, which was the
prevailing course of action in the ‘90s to
2005, that the courts’ view on relief from
stay was very balanced. It was a simple
philosophy, if debtor was not staying in
the property, why make the plaintiff jump
through hoops. This course of thinking
changed in approximately 2005, when the
outsourcing system (3 rd party outsourcers)
became prevalent. Judge Goldberg
explained that attorneys were coming to
court with little authority, and the judges
were unhappy with the results. In addition,
in Chapter 13 bankruptcies, the judges
believed the payoffs were incorrect, with
hidden charges, and that often debtors
got overcharged by thousands in late fees,
time and time again, but only one party
out of 100 were challenging.
The second trend began to occur when the
economy began to slide. With the advent of
“securization,” new issues arose. Attorneys
did not have any authority, and the loans
were fractionalized in CDO’s. Another
question was raised, “who was the real
party in interest.” Debtors were unaware
of who they were dealing with; the courts
required full disclosure and transparency
as to the owner of the note.
Another trend has emerged in California
courts. Debtors are going to state court,
and Sheriff’s departments were requiring
a higher standard. Before this trend, the
courts would not give long breaks to
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