NYC Judge ‘Fights’ Foreclosures by Reading, Being a Judge

Channing Kennedy

NYC Judge ‘Fights’ Foreclosures by Reading, Being a Judge

The New York Times today introduces us to Arthur Schack, in an article that’s heartwarming to read, but discouraging that it had to be written. Justice Schack, who serves on the New York State Supreme Court in Brooklyn, has attracted the attention of mortgage-holders and media alike with his novel approach to foreclosure proceedings.

What makes his approach so novel? Is he some activist judge dealing out vigilante justice with no regard for the sanctity of the signed contract, instead unfairly and unblindly tossing handouts to a thieving and willful underclass? (Because that’s what it says on the right-wing blogs right now.)

No. He actually reads the contracts. If there’s a problem with the contract on the bank’s end, he doesn’t order the family to be kicked out into the street.

Justice Schack’s take is straightforward, and sends a tremor through some bank suites: If a bank cannot prove ownership, it cannot foreclose.
“If you are going to take away someone’s house, everything should be legal and correct,” he said. “I’m a strange guy — I don’t want to put a family on the street unless it’s legitimate.”

…

“To the extent that judges examine these papers, they find exactly the same errors that Judge Schack does,” said Katherine M. Porter, a visiting professor at the School of Law at the University of California, Berkeley, and a national expert in consumer credit law. “His rulings are hardly revolutionary; it’s unusual only because we so rarely hold large corporations to the rules.”

An example motion that Schack denied:\

a Deutsche Bank representative signed an affidavit claiming to be the vice president of two different banks. His office was in Kansas City, Mo., but the signature was notarized in Texas. And the bank did not even own the mortgage when it began to foreclose on the homeowner.

Refusing to act on this bank’s motion to evict is what passes for revolutionary these days.

Jillian Bandes at the conservative blog Townhall.com asks, "But are signature discrepancies really a good reason to punish banks for performing a deal that is, in the end, initiated by the one paying the mortgage? An unabashed bias against business will only harm consumers' interests in the end."

First of all, "to hold banks accountable at the most basic level of law" and "to punish banks" are not synonyms. And you know what else harms consumers' interests? Homelessness. Totally harms them, right in the end.

The big takeaway, however, is the foreclosure crisis is about injustice -- an unjust system that favors the favored at every step, from redlining to predatory loans to interest rates to the bank bailouts. Add judicial review to that list of steps, apparently. If Schack is newsworthy for doing his job, I want to get introduced to the judges who aren't.

photo credit Nicole Bengiveno/The New York Times

Posted at 1:52 PM, Aug 31, 2009 in Courts | Permalink | View Comments