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Making Complaint Matter Part 2: Why Class-Action Lawsuits Cannot Replace a Class-Movement Uprising

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ACORN Protesters at County Courthouse steps by JacobRuff

            So where were we?   In the first installment, this humble correspondent introduced the context of thuggery and thievery which characterizes contemporary capital.   The cultural cover-up attending this milieu also appeared.   As well, an overall view of mortgage meltdown showed-up, in which THC's own fate is now embroiled, the result of which has been a social-networking experience that has led to many interesting exchanges and continuous consideration of what tactics might be apropos for the likes of such a working-class sort as is likely to face the mortgage ax.

*What the Conversational Nexus About Action Has Revealed & by NYT - JH montage

*What the Conversational Nexus About Action Has Revealed

            Where things stand now is that a growing number of THC's correspondents are chomping at the bit, ready to go to the ramparts with a class-action complaint in the Northern District of Georgia's Federal Courthouse in downtown Atlanta.   While the ever-closer imminency of THC's exit may or may not permit participation in such an action, a few observations about it are, plausibly, useful and important to develop.



            First, several legal points require attention.   The initial notion of this kind is quite simple: every barrister would point it out.   Without exception, no matter the valuable commentary about inequity or the reasonable vocalization of unfairness that characterizes the current dialog, almost everyone in the same boat as this humble correspondent owes a debt--written, and concerning real property--that he is seeking to modify, that she would as soon forego.  

            To put the point mildly, such actions are unlikely to prevail.   This remains particularly apt to recall in Georgia, where a 'non-judicial foreclosure' process has for some time held sway, cementing the authority of the financial interests as primary over all other considerations.   One may--through bankruptcy especially--briefly delay the preordained outcome of this harvesting of the bank's asset; in no way, however, should one expect significantly to forestall this eventuality or to force a 'loan-modification' onto an unwilling lender.

            One attorney, a decent and jolly chap who still retains something approaching an open heart despite five years of helping the hapless, recalled for THC his BAR-BRI prep-course for the Bar Exam.   "Our tutor was kidding when he said it," the lawyer remembered, " but he might just as easily have been serious."  

            He paused, proceeding succinctly.   "'If you get a question on the test, and one of the parties is the bank, just answer that the bank wins.'"  

            All manner of theories for a civil action, possibly including a substantial class of like-situated plaintiffs, are imaginable.   One could adopt a 'produce-the-note' strategy.   The legal response is that any affidavit attesting to the particulars of the original mortgage would defeat such a sally against the money-bags.

            One might imagine 'unjust enrichment, promissory estoppel contentions intertwined.   Basically, such a claim would sound like this.   'They invited me to stop paying, or to pay a smaller amount, saying I could try for a new note or even a reduction in principle.   Then they yanked the rug from under my feet.'   Except in one case out of a thousand, such propositions are without merit.   'The bank wins.'

            One might ponder Racketeering Influenced Corrupt Organization assertions, or gross negligence arguments about the original loan processors, or avowals that the financiers' have proven unwilling to follow the Treasury's Homeowners' Adequate Mortgage Protection Act requirements.   In any such undertaking, one is banking on the possibility that State and Federal Supreme Courts would decide, somehow or other, in spite of unequivocal opposition to any such idea ever before in history, that the basic equities of capitalism were ripe for modification by the prime protectors of such perquisites.

            Finally, first of all in terms of being willing to back any claim seeking substantive, or especially injunctive, relief with bonds for the arrears, all potential litigants need to note, secondly, that the 'smart money' among the legal eagles believes that significant sanctions are likely against many of the types of complaints that people contemplate bringing.   To proceed with litigation that has close-to-zero chance of success is, in such a view, abuse of process and opens up the possibility of huge civil liabilities and attendant contempt-of-court hazards.

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The original 'odd bird,' my stint as head of High School ROTC included my wearing MFS's black armband just before I turned down an appointment to West Point to go to Harvard. There, majoring in bridge, backgammon, and poker for my middle years as (more...)
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