The New Normal and the foreclosure trial tackle box

What to do when your foreclosure goes awry in court

A few years ago in a foreclosure trial involving pro se defendants in a rural northeastern county, trial started with the judge stating essentially the following to the pro se defendants:

"Number 1.  I am not your attorney.

Number 2.  I am not your attorney. […]

My role is to be a neutral arbiter."

Contrast this to earlier this year and a different part of Pennsylvania; What should have been a simple and relatively quick mortgage foreclosure trial turned into a two-day affair. Proceedings, in an instance can turn somewhat unorthodox.

Consider the following:

The court allowed a random person in the courtroom to approach counsel tables and have a conversation with the defendants over the objection of plaintiff's counsel causing a disruption in direct examination.  

The judge had numerous conversations with the defendants even going so far as to advise them to write down their points for use in their cross-examination.  

The judge sustained an objection that had not even been made.  

The judge allowed the defendants to pose questions to plaintiff's counsel several times during trial and each time plaintiff's counsel had to remind the court of the obvious: that he was not the one on trial.

In one instance, the court "directed" plaintiff's counsel to answer.  

At another point, trial morphed into oral argument over a summary judgment case.

The defendants disrupted the proceeding at will with no stern warnings by the court to cease such interruptions. Even though a sheriff's deputy was present, he was not asked by the court to intervene.

What does one do under these circumstances?

1) Keep calm and composed.  

2) Continue to observe standard courtroom decorum.  

3) Build and preserve the record.

In case the lender needs to file post-trial motions and, ultimately, an appeal, it is critical that the record reflect as many transgressions by the trial court as possible. It is also possible that the trial judge gave exceptional latitude to the pro se litigants in anticipation of an appeal by them.  

So, in a circuitous way, the court may have actually been helping the lender.  

In any event, experiences like this necessitate a proactive approach. Taking a "trial tackle box" loaded with caselaw, statutes, and UCC Article 3 sections to court has now become the norm.  

It is probably a lesson in futility to try guessing in advance which cases or statutes could be invoked at trial, so arming yourself with all cases and statutes that relate, whether directly or tangentially, to foreclosure is now, officially, a best practice.

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