Pro Se Activism

Sequential, pro se litigation can be an effective agent of change ...

Jay Fenello 770-516-6922 
http://www.fenello.com

August 1, 2016

 

June 6th came and went, and for two days, we did not know if we still owned our home.  Then on June 8th, we received a letter saying our foreclosure had been cancelled.  For the fourth time in a little over a year, the bank had backed down in response to my demand letters.

Since I first started on this journey six years ago, I've been through an entire lawsuit cycle in federal court (including appeal), with some limited experience in the state superior court.  One thing that I have learned along the way, is that the banks love to move state lawsuits to federal court.  It's always the first move that they make.  (One reason my demand letters may be working when so many other approaches haven't, is because it structures a case that would be difficult to move to federal court.)

There's good reason why the banks make this move first -- federal courts have become very corporate friendly.  This shouldn't really be a surprise.  Year after year, the litigant with the deepest pockets has been winning court decisions and setting precedents.  So just like the legislative branch was captured in the 90s, and the executive branch was captured in the 2000s, the judicial branch is now under assault and rapidly failing.  If we don't act soon, the entire republic could be lost. 

For example, people may be surprised to learn that federal judges are now able to prejudge cases.  Any time you hear a case or a charge being thrown out for "failure to state a claim," a federal judge has exercised this new supreme-court-like power to decide whether to even hear a case.  Or even allow the parties to enter discovery.  What good is a jury trial, if you can't get past the judge? 

(especially if the judge has a bias.  In my previous case, both federal judges had been speakers at think tank conventions where bankers went to learn how to avoid lawsuits like mine.  One of the judges in my case even sat on a panel with a principal of the law firm I was up against.) 

The next leg of my journey will be to sue the banks in state court.  Since state judges are elected here in Georgia, I hope they may be more neutral in their rulings.  Regardless, I'll be poking, and probing, and learning, along the way.  

P.S. If anyone thinks what we're doing is easy, our home is up for foreclosure again TOMORROW, August 2nd.  Until next time ...

 

June 6, 2016

 

Since I last wrote in 8 months ago, we are still in our home.  We've been up for foreclosure several times, but the bank backed down each time.  Tomorrow, we are scheduled for foreclosure again.  It may actually happen this time.  Since we can't sue them until they foreclose, it would be a relief for us to move into the next stage of this. 

To answer Mr. Kennedy's question, it's not that we think we shouldn't have to pay back the money we borrowed.  Instead, we believe that the bank owes us damages for the fraud they have subjected us to.  

(Joe Kennedy Kennedy Research, LLC laweconomicsandtechnology.com)

Funny how many people like to blame homeowners for what happened in 2007, rather than the banks.  This is ironic, since the banks have been found to have committed massive fraud with a complete disregard of the law, which led to the collapse we all experienced.  Worst of all, the Federal government, as policy, decided not to pursue any criminal charges for any of the following abuses:  

1. - money laundering for terrorist nations
2. - money laundering for drug cartels
3. - price fixing for interest rates
4. - price fixing for commodities
5. - price fixing for U.S Treasuries
6. - fraud in the packaging and sale of mortgage backed securities
7. - fraud in the mortgage underwriting and homeowner foreclosure process.
   (you can read about these abuses and more here: http://fenello.com/blog/category/proseaction)

My primary servicer (Bank of America) has already paid the feds $14+ Billion for #6, as well as $9+ Billion for #7. All without admitting any guilt, all without facing any criminal charges.  (one consolation - the settlement allowed victims of these abuses to sue for damages, which is what we intend to do.)
When banks commit fraud on this scale, and are allowed to keep their illegal proceeds in exchange for token penalties, the common people are irreparably harmed.  I would argue that's one reason why the middle class is being hollowed out.  We are being stripped of our assets, as wealth is transferred from the middle class to the moneyed class, a sliver at a time.   

In a world where big corporations are given cart blanch to rape the little people, and where the government agencies designed to protect us do nothing to stop it, we have to learn how to protect ourselves.  And that involves more than just voting for someone like Donald Trump.  Which is why I'm taking on the banks, pro se, as a test.  I'll have a lot more to say about the legal system as we get into it.

For now, let's see what happens tomorrow.  

Jay Fenello
770-516-6922
http://www.fenello.com
 

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Novermber 2015

A little over 4 years ago, I filed my first lawsuit against Bank of America.

I was one of the homeowners who got caught up in the mortgage debacle and the subsequent foreclosure crisis.  Instead of walking away from our  home, I decided to file a pro se lawsuit.  Not only would this allow me to  protect our home, but it was also an excellent way for me to test a new  approach to legal activism.

It was my belief that our Republic has been lost to monied interests, as was evident in the capture of our executive and legislative branches. It was my hope that the judicial branch of government was the one  lever left that would allow us to recover our constitutional form of governance.

In recent history, legal activism has been handled by non-profits and public interest groups like the ACLU and Public Knowledge. As excellent as these groups are, they are severely outgunned  by the resources of the multi-national corporations and the other monied players they come up against.

My thought was that, instead of both sides spending $50-100k on  legal fees, an army of citizen activists could file sequential pro se  lawsuits that would cost the activists only a few thousand dollars each.  This mismatch in costs could help level the playing field.

The Result

It's been over 5 years since I've made a mortgage payment, and I'm still in my home.  It's been up for foreclosure at least 6-8 times, and I have filed three different lawsuits in Georgia Superior Court to stop these foreclosures.

(Over these 5 years, my legal costs have totaled under $10,000.
This includes fees for court costs; printing; serving costs; postage; books; study guides; classes; para-legal, virtual legal, and unbundled  legal services.  Many of these fees could be avoided by other pro se  litigants.  My goal was to explore these various approaches, so costs  were not my primary concern.)

My first case was dismissed for procedural errors.  My second case was removed to Federal Court, where 12 of my 13 causes of action were dismissed at the judge's discretion.  After more than a year's worth of pre-trial motions, my 13th cause of action was also dismissed. I then filed an appeal, which was not successful.  I filed my last lawsuit earlier this year.  It too was removed to Federal Court, where I had it dismissed voluntarily.

My results are typical ...

Since the great recession began, almost all homeowner lawsuits have failed, whether it was brought by the homeowner, or a high powered attorney.  The few cases lost by the banks have been sealed and/or not  reported in the news.  In fact, there is just a handful of cases I've heard  of where the homeowner has prevailed.

DEMAND LETTER

Most recently, my home was to be foreclosed on Tuesday (10/6/15).  
By now, I have learned much about the legal system, and what works  and what doesn't work.  As a result, I sent the following demand letter to the law firm handling our foreclosure:

We are in receipt of your letter dated September 1^st, 2015, giving us 30 days to cure or dispute a purported debt.  As per our previous correspondence with SPS and BofA, we hereby dispute this debt.

Further, as outlined in our letter to SPS on June 15^th, 2015 (attached), your involvement in this non-judicial foreclosure will make you a party to wrongful foreclosure, theft by deception, and violations of the Georgia Racketeer Influenced and Corrupt Organizations (RICO) act.

Under the Georgia RICO statutes, this is true whether you had prior knowledge of the conspiracy or not. With this letter, however, you are now on notice of the conspiracy, and your potential involvement in it. Your continuing role in this foreclosure will make you an active participant in the culmination of this conspiracy to steal our home through these deceptive actions, and remove your E&O insurance as a backdrop to mitigate the treble damages you face.

For these reasons and more, we hereby DEMAND THAT YOU CEASE AND DESIST ALL FORECLOSURE ACTIONS ON BEHALF OF YOUR CLIENT.

Should you choose to non-judicially foreclose on our home, we will vigorously defend our rights in the Georgia court system, and are prepared to bring these questions through appeal to the Georgia Supreme Court if necessary.

Thank you in advance for your prompt attention to this matter.

 

As a result, they decided to stop the foreclosure within 45 minutes of receiving this letter.
This is extremely unusual.  It has been virtually impossible to stop a non-judicial foreclosure without filing a lawsuit, and the success of this letter is very encouraging.

Summary

Sequential, pro se litigation can be an effective agent of change ...

And given the number of unemployed and underemployed white-collar/information workers with time on their hands, there is a large number of potential activists who can help us take our country back. 

In future writings, I'll describe what I have learned about our legal system, and why I believe this letter worked so well.  I'll also describe the horrible things the 
banks have done, and how pro se activism can work in the real world.

--//--

 

2/2016 ‘These Are People’s Lives You’re Playing With:’ The Fight To Curb Debt Collector Lies
An industry so bent on speed that it can’t be bothered with accuracy. The epidemic we’re seeing now is abusive collections.
Fair Debt Collection Practices Act (FDCPA) 

“I consider trial by jury as the only anchor yet devised by man, by which a government can be held to the principles of its constitution." — Thomas Jefferson