Gain Strength by Admitting Your Weakness and NEVER GIVE UP!
Cross-posted from The Law Offices of Evan M. Rosen
I know it; I teach it; but it’s still always so awesome to see the power of simply telling the truth. Sometimes when I speak or think a profoundly true thought, I get a shiver up my spine. Recently, I had this experience in a trial.
There were a few legal issues on which we won this recent trial but the main ones were pertaining to an Elston/Leetsdale, LLC v. CWCapital Asset Management, LLC. 87 So.3d 14 (Fla. 4th DCA 2012) issue and paragraph 22 of the mortgage. In Elston, the plaintiff alleged to only be the servicer, foreclosing on behalf of another entity, a trust. Id. The plaintiff was neither the holder nor the owner of the note or mortgage. Id. The sole witness was an employee of the servicer. Id. Without the trust joining or formally ratifying the actions of the servicer, the servicer plaintiff could not prevail. Id. This is an extremely rare fact pattern. Usually, when servicers are plaintiffs in foreclosure cases they allege to also be the holder. This sounds like a minor difference but, in terms of what the plaintiff has to prove, it’s significant. In the case on which this blog post is based, the Plaintiff alleged their capacity to sue solely as servicing agent for a trust, just like the plaintiff in Elston. Also, just like in Elston, the Plaintiff in our case offered no evidence to show that the trust joined or ratified the servicer’s actions. In addition to this issue, we also won based on a paragraph 22 violation. Those are the skimming the surface legal reasons why we won at trial. However, it took hours and hours of preparation, keeping my cool, and making tons of legally valid objections combined with one opportune moment, in which I admitted a weakness in our case, to seal the deal.
As to the paragraph 22 issue, there was a business record admitted into evidence that showed the acceleration letter was mailed, by regular mail, the day after date on the actual letter itself. Among other things, paragraph 22 in the mortgage specifies that the default letter must provide “…a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured….” Paragraph 15 defines given as “…when mailed by first class mail or when actually delivered to Borrower’s notice address if sent by other means.” The letter in this case only stated that the borrower had to cure within “30 days of the date of this letter.” Yet, through the plaintiff’s own evidence, the letter was mailed 29 days earlier, not 30, and by regular mail, not first class. As a result, the letter was not “given” as required by the plain terms of paragraph 22 of the mortgage. Since compliance with paragraph 22 is a “condition precedent” to acceleration of the mortgage and to foreclosure, and since we properly raised this issue in our pleadings, the Plaintiff could not prevail. This is a highly technical argument, which needs ample citing to Florida Supreme court caselaw regarding contract interpretation. Without a deluge of strong case law, mixed with just the right amount of persuasion, this argument will go nowhere. There were a few other things wrong with the letter as well, which helped.
However, with these legal technicalities, as is typically the case, the trial was going all Plaintiff’s way for the first 5 or so hours. After all, this was the Plaintiff’s third shot at trial. The judge generously gave them multiple chances to get their act together. However, towards the end of the Plaintiff’s case, the witness got caught on redirect trying to lie his way through the date of mailing issue. The Plaintiff’s sole witness admitted on cross, that a computer printout of a collection log showed that the acceleration letter was sent, regular mail, the day after the date on the letter. That printout was received into evidence. I went over this issue carefully during my cross examination. Then, somehow while on redirect, with guidance from his lawyer, the bank’s witness tried to say that the note in the log actually meant that the letter was mailed the day before, on the same day as stated on the letter! In other words, even though the log stated the letter was mailed on a specific date, it was actually mailed the day before… The judge heard this, lit up and jumped in. She started asking a few questions on her own. Judges, because of their authority, and also, typically, because of their intelligence(as was certainly the case here), are extremely effective cross examiners. The witness retracted fast. He admitted he was wrong and that what he said first under direct and during my cross was accurate – the evidence showed that the letter was mailed, by regular mail, the day following the date on the letter.
A few minutes later, I was arguing the merits of my motion for involuntary dismissal. The judge interjected on a fairly important point, in which our case happened to be weak. I immediately conceded, raising additional information, in support of the judge’s point, that was not even addressed by the Plaintiff. The judge was surprised. I then added that while I have an ethical obligation to my client, I also have an ethical obligation as an officer of this court. The judge did a bit of a double take. There was such a stark contrast between our honesty and the Plaintiff’s sole witness flip flopping just a few minutes earlier. Combine that with the hours and hours of professional and yet aggressive lawyering, it was as if a light went off – the arguments starting going our way. When the opportunity arises, admitting weakness is perhaps one of the most powerful and effective ways to gain credibility. I suspect most lawyers argue everything they can, thinking that’s what lawyers are supposed to do, and in exchange their credibility gets hammered. I was amazed how much the paradigm shifted during that key moment.
The next morning I received an email from a fellow attorney who was in the courtroom watching this trial:
“Watching you work yesterday’s trial with perseverance, grace and respect for the law, the judge, the witness and opposing counsel taught me a lesson that my father has repeated to me through the years – in essence, “it is not what you say, even though you may be correct, but how you say it that you will get your message delivered”. You did not make the judge feel bad when you explained the law to her and instead helped her have enough material (equity and the law) to support her final position in the client’s favor. The witness was not antagonistic toward you and became your friend throughout the trial (opposing counsel trusted you and gave you permission to speak with witness) and opposing counsel congratulated you on a job well done – despite the sting they must have felt for not winning in the end. You acted like a gentleman at all times. You made strategic choices and looked ahead several moves like in a chess game and then made certain moves that could have hurt temporarily but led to an overall final win… And while everyone took a lunch break, you were studying three forbearance agreements that were not on the exhibit list and were sought to be entered into evidence against the Judge’s own prior order. However, despite the Judge’s own order you prepared for their eventual entry into evidence and had to restrategize the whole case for their evidentiary impact. You didn’t give up. You didn’t lose hope. And the trial was won. But even if you had lost the trial, yesterday, you won the respect of the Judge and the entire courtroom. Thank you for making this life on earth a better place for everyone to live – with a home or without a home.”
Once again, the lesson reinforced for me is, stay calm, be a gentleman and a scholar, be aggressive as needed, admit weaknesses when called out, and most of all NEVER GIVE UP!!!!
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