Tuesday, June 7, 2011

Bank learns a lesson: Next time rent your stuff

Todd Allen with client
Maureen Nyerges outside the
Naples BofA branch.
Naples attorney Todd Allen lived the dream last week. Allen is the lawyer who made news when he turned up at a local Bank of America branch with a court order, a rental truck, a sheriff's deputy and an ultimatum.

Pay up or you'll never see your furniture again.

He was there to collect the $5,772.88 BOA owed his clients Warren and Maureen Nyerges for court costs and legal fees tied to the bank's unrelenting efforts to foreclose on the house the couple owned free and clear.

And he was prepared to be paid in furniture. The bank's furniture. Everything from the institutional sofas in the lobby to the mahogany veneer in the branch manager's office.

Warren and Maureen spent 18 months of their lives trying to convince Bank of America that they weren't delinquent on their house payments. They had no house payments. They had purchased their 2,700 sq. ft. home with $165,000 in cash.

There was once a time when an actual mortgage - preferably a delinquent mortgage - was considered a relatively important element in the foreclosure process.

Those were the days before "rocket dockets" and "robo-signers" replaced due process and competent lawyering. When foreclosure mills had yet to outnumber personal injury firms. Before the system had transformed judges into assembly line workers.

When Warren and Maureen would have received an apology and a free toaster instead of a court date.

How Warren and Maureen found themselves in this mess, and how Bank of America and its lawyers created it, isn't all that vital to the story. That Bank of America didn't bother to conjure an excuse until the moving van and the media turned up at the door shouldn't surprise anybody.

What's chilling is that the bank's explanation for this goof of monumental proportions - one that took BOA 18 months to admit - has become so routine it's temptingly understandable. The paperwork got screwed up.

In Warren and Maureen's case it was the bank that nearly wound up on the street. But in the wake of BOA's well-deserved humiliation over this table-turning photo op, there are questions.

How many other Warren and Maureens are out there? How many Warren and Maureens couldn't find a Todd Allen willing to go to the mattresses on their behalf? How many Warren and Maureens have been unlawfully and unjustly kicked to the curb due to a similar paperwork snafu and a dysfunctional justice system?

Warren and Maureen said they were turned down by roughly 25 lawyers before Allen agreed to take their case. It's no secret that when an attorney hears the word "foreclosure," the phone lines tend to go dead. If you can't make your mortgage payments, they reckon you likely don't have the money to pay a lawyer.

And in fairness to the profession, a prospective client whose story initially sounds pretty good often has the story wrong. Getting to the truth can chew up a lot of billable hours that will likely become involuntary charity work.

Aside from the prospect of not getting paid, most attorneys know that mounting a defense in a foreclosure case often does little more than delay the inevitable. The money these prospective clients spend on legal fees could be better used to jump start a new life.

Attorneys don't have the resources to winnow through hundreds of foreclosure cases to find the handful that have a hint of merit. Even the worst paperwork atrocity can be fixed. The foreclosure simply rewinds and moves on. It's the way the system works. And, tragically, we've come to accept and expect it.

When Allen's rental truck pulled up to the front door of that Bank of America branch in Naples last week, we shared in the group hug-style satisfaction of knowing that justice had, in some strange way, been served. There was little sympathy for the bank manager who nearly soiled himself as Allen explained that he was about to do to Bank of America what Bank of America had tried to do to his clients.

"The branch manager was visibly shaken," Allen said. "At that point I was willing to take the desk and the chair he was sitting in."

Unfortunately, we never got to see it. And only our collective imaginations can put us on the other end of the panicked phone calls that likely followed. Or the expression on the manager's face an hour later as he handed over $5,772.88 to keep Allen from legally heisting the bank's stuff. The $5,772.88 a judge and a deputy sheriff said Warren and Maureen were due.

This story works for us because we can understand - or suppose we can understand - the trauma of a family forced to helplessly watch as their lives are carried to the curb. Or the pain of packing up and walking away from a house that had once been a home. Can they really do this? Is this actually happening?

There's something warm and fuzzy about a financial giant getting a small taste of that same court-ordered pain, trauma, bewilderment and helplessness. There's a feel-good moment in knowing the branch manager likely, at some point, uttered the words "you can't do this" only to be bluntly told "oh yeah? Watch us!" Or the confusion in his eyes as he silently asked "Is this actually happening?" And yes, you kind of hope he cried.

The month before Warren and Maureen came within a whisker of turning their living room into a bank lobby replica, thousands of foreclosures were filed in Florida's courts. Somewhere in those numbers you'll likely find another Warren and Maureen whose story won't have the same heart-warming, the good guy wins ending.

There's a lesson to be learned in the story of Warren and Maureen. Unfortunately, the lesson that was learned has nothing to do with paybacks and hell, reaping and sewing, geese and ganders, foreclosures and due process, and dishes best served cold.

In the wake of Warren and Maureen, it's likely the banks have learned that if you rent your desks and chairs, your sofas and credenzas, the lawyers and deputies can't legally haul the stuff away.

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