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Thoughts on a Sunday Afternoon

On Behalf of | Jun 13, 2014 | Firm News |

By: William B. Gammon


The trial was 2 days ago.  My clients, a couple in their 60’s, were being evicted from their home of 13 years.  They’d suffered a foreclosure after he was laid off from work and then missed several mortgage payments.  The bank/mortgage company bought their house at the auction and was taking them to court to force them to move out.  It’s still a common story these days, more so than you’d imagine.

They had been to court before, lost and filed an appeal.  The hearing on their appeal was to have taken place a week before it did, but the court reporter was ill that day and the case got reset.  They had been given another week.

The bank’s lawyer, a kind man, gave them my name as he left the courtroom.  They called me immediately and I made time to see them.  I have a soft spot for people losing their homes.

When they arrived they brought nothing with them except for the notice of the hearing they had just left:  no paperwork on the mortgage; nothing on the foreclosure; nothing on the eviction proceeding they faced.  Of course they brought no money.  They told me the Lord had sent them, that they had faith, and that He would provide.  They had no intention to pay anything, including filing fees or court costs, all of which, they explained, were now my responsibility.

Believe it or not, I see this mindset quite a lot.  I call it, “I need, and therefore you owe me.”  People come in with nothing to offer but a bagful of problems, hand it to you and call it a gift.  Perhaps they are right.  I do believe we are here to help one another and these folks certainly bring that opportunity in abundance.  They are helpless.  Their cases, seldom strong initially, suffering from a chronic lack of legal guidance and preparation, are usually hopeless.  The legal moves that might have been effective, when timely employed, are often no longer available.

This dire situation, however, does nothing to diminish client anticipation.  They will not be disabused of the notion that justice is still available in court and that their lawyer, if competent, will certainly deliver it to them.  Lawyers, on the other hand, faced with such insurmountable difficulties, see a no-lose situation.  There is nothing they can do to screw up such a case and anything they achieve will be miraculous, worthy of at least an ode, even if not lots of money.  Such divergent viewpoints commonly result in unfulfilled expectations on both sides, regardless of the outcome in court.  Because of the nature of my law practice I have represented many penurious people and taken up more than my share of hopeless causes.  In the process I have dealt with no small amount of ingratitude.  I have, in fact, come to expect it.  I could tell right away that this case would be no different.

Still, I did not agree to represent these messengers from the almighty.  Something I could not identify bothered me at a deep level:  a sense of self-preservation that made me wary of entanglement with them.  So I told them to get their paperwork together and make another appointment.  I also told them I would not see them until they had written down exactly what it was they expected of me and why.

The email came later that same day:  an explanation of the reasons they were entitled not only to free, legal representation at their upcoming eviction trial, but payment by me of all their related expenses.  In their view they were presenting me with the rare opportunity to file a lawsuit against a bank and extract justice.  I was to perform these services immediately and also recover millions of dollars in damages to which they were entitled for their stress and the disruption in their lives.

It was an offer I found difficult to refuse; yet somehow I managed.

When we spoke on the phone afterwards I reluctantly told him I would not be able to meet their needs.  I wished them well and bade him goodbye.  He called back.  I did not respond.  He persisted.  I worked on productive tasks for other clients.

The day before the trial he showed up unannounced at my office carrying a box of unsorted documents.  The paralegal who brought the news added, “I think he’s drunk.”

When I reached the reception area it was reeking of alcohol.  I was not amused.

“Don’t you ever come back here when you have been drinking,” I told him.  “You are stinking up my office.  This is disrespectful of me and of yourself, too.”  I wondered if the Lord had provided the booze as an additional inducement to take this man’s case.  Little did I realize.  “You need to leave, now.”

“What about tomorrow?” he asked?

“I will see you at the courthouse,” said a voice that sounded remarkably like mine.

It is truly amazing what comes out of your mouth when you are intoxicated.  By the time my head stopped spinning he was gone with his box of papers and I was left with the hangover.  Great.

The festivities were set on the afternoon docket.  I arrived early with a small file I had prepared the night before.  In it I had copies of the clients’ mortgage documents I had downloaded from the Travis County property records and a single, recent case on point from the 3rd court of appeals.  When the judge called the case the bank’s lawyer offered his evidence that showed his client was entitled to possession of my client’s house:  there had been a foreclosure (he introduced the foreclosure deed); the bank had sent demands to vacate the home (established by a business records affidavit); and there was a landlord-tenant relationship between his client and the former homeowners, my clients (established by a clause on page 8 of the deed of trust my client signed in favor of the bank).  Those three documents and the fact that my clients were refusing to vacate was all he needed to win.

Except for one problem.

When I read the clients’ deed of trust the night before I noted that it was a nine-page document, the first page numbered “page 1 of 9.”  Curiously, the signature page was labeled “page 10 of 9.”

I looked closer.

The signature page said:  “By signing below, I agree to all the terms on pages 1 through 6 of the foregoing document.”

Apparently, whoever at the bank drafted the signature page used a form from another, 6-page document, adding the page numbering at the bottom to show that it was page 10 (of 9).  It turned out my client had only agreed to be bound by the clauses on the first six pages of the deed of trust.  The part that allowed the foreclosure and eviction was on pages 7, 8 and 9.

When I pointed this out to the judge he remarked that in his nearly 40 years on the bench he had held many a man’s feet to the fire on contract clauses they claimed not to have read.   He had no difficulty finding that the bank, which prepared the document, had limited the deal to the first 6 pages.

Judgment for my clients.

The bank’s lawyer took it in stride.  He even laughed at himself for referring the clients to me.  “Bill, I never saw that.  The bank never saw that.  All the lawyers who have handled this file and no one ever noticed that.  Congratulations on a good win.”

I knew it was blind, dumb luck and the influence of second-hand alcohol but accepted his compliment graciously.  We shook hands and I left with the clients.

On the way down the stairs she asked me “Now what?”

“Nothing,” I told her.  “You won.  You stay in the house.”

“There has to be something else,” she said.  “There is always something else.”

“Life goes on,” I offered in consolation.

When I started for my car he stopped me.  “Wait a minute!”  There was a definite edge to the voice.

I turned toward him.

“What about my damages,” he asked?  His face was beginning to contort with anger.  “I have had to live with this for two years.  I moved out of my house when they foreclosed and then moved back in to it when the bank left it vacant.  (He really said that.)  I need to get paid for all this.”

Fortunately, this time I had prepared for this bullshit.  Before stepping into the courtroom I gave him a contract to sign stating that I was representing him for free but only for the purpose of this one hearing and nothing else.  If he didn’t want to sign it I would walk away before the hearing.  If he did sign it, I would walk away after the hearing.  Either way I was free of this miscreant claiming divine sponsorship.

“Your damages,” I told him, “do not exist.”  I moved closer, confident he had not had time to start drinking since the verdict a few minutes before.  “In case you weren’t paying attention in court, the judge just said that you were only bound to the first six pages of the deed of trust.  You moved out for nothing.  If you had taken the time to read what you signed you would have seen that.”

I grinned at him, but my eyes were hard.  “Have a nice life,” I concluded.

I could feel him staring at me as I walked away.  I give it a month before I get the grievance.

Ah, gratitude.  It’s so overrated.