What is a "good" DJ?

We at NL have been having an ongoing, interesting dialogue over the past day or so about what is a good DJ, specifically when dealing with possession proceedings.  Our dialogue was initiated by an article which J forwarded to us about Judge Arthur Schack’s forensic examination of the papers when dealing with a foreclosure action, in this case brought by Deutsche Bank against Ramash Maraj, in the Supreme Court for Brooklyn and Staten Island.  The article goes into the sort of detail about Judge Schack’s life history which, I suspect, we would all like to know about the DJs before whom we appear and for whom possession days must be a relentless, probably quite emotional experience (there’s a wonderful academic paper discussing the “emotional labour” of judging, which draws on sociological literature about air stewardesses in the 1970s and the constant smiles they had to wear – a good allusion to take with you to court in the oncoming winter).  Judge Schack may have more time on his hands, however, than the average DJ on a possession day.  In his short judgment in the case, he notes a number of inconsistencies in the documents presented by Deutsche Bank, including about the securitisation process involving various assignments of Mr Maraj’s mortgage in Texas (as opposed to the lenders’ principal place of business in Kentucky).  Assignments of the mortgage were signed by Ms Johnson-Seck, who was V-P of INDYMAC, and the action was begun by the same Ms Johnson-Seck, who was now said to be V-P of Deutsche Bank.  Judge Schack required the plaintiff to file evidence concerning the previous three years employment history of Ms Johnson-Seck.  (There’s more, much more, but I don’t want to dwell on that particular case.)

He also appears to have a penchant for allusion and analogy, drawing on films, such as Lucky Number Slevin and It’s a Wonderful life.  It’s a great, short read, and worthy of a few minutes of your time (if you have those minutes).  The backdrop to these US cases is the overturning of the “redlining” policies of lenders throughout the twentieth century in favour of predatory lending (and, the quantitative evidence suggests, possible indirect discriminatory practices in possession claims brought by said lenders).

For us, though, it lead to this discussion about a good DJ.  Our collective view on this – and I’m happy for my colleagues to correct me – is that a good DJ in possession cases (mortgage possession, tenancy, and other occupiers) actually reads the papers and picks out inconsistencies, drafting errors, as well as legal and other issues (whether or not the occupier is represented).  In this, we are formalists and, for my part, happily so.  There are DJs who do this and those who don’t.  We are not in the business of criticising the latter, because we all recognise how hard-pressed DJs are on the average possession day.  Five minutes, if that, is not sufficient for possession cases (my view, but I suspect one which may well be shared by my colleagues) amidst the chaos of possession days with instructions being given by both sides a few minutes prior to the hearing.  There has to be give-and-take, and a degree of trust between DJ and lender or landlord but I/we always feel that any claim should be properly tested and scrutinised.

The DJs who do scrutinise the papers are usually referred to as “tenant friendly” and are occasionally viewed negatively as a result by Claimants.  They may be right in that characterisation in some cases, although not all scrutineers are that friendly to either party.  But, it’s all about due process and it’s ally, fairness.  It is not difficult to complete the possession papers, particularly not using PCol, and it is not difficult to get it right.  Getting it wrong isn’t the end of the world – even Judge Schack allowed the Deutsche Bank to renew their application on the basis of further information being provided to the court – but making an order on the basis of incorrect particulars is a risk.  Furthermore, getting it wrong risks breaching that trust between lender/landlord and DJ; it may also suggest that there are other inaccuracies to be further tested.  Let’s turn to the NY Times report of one of Judge Schack’s musings:

Last year, he chastised Wells Fargo for filing error-filled papers. “The court,” the judge wrote, “reminds Wells Fargo of Cassius’s advice to Brutus in Act 1, Scene 2 of William Shakespeare’s ‘Julius Caesar’: ‘The fault, dear Brutus, is not in our stars, but in ourselves.’ ”

My particular beef is the DJ who, having stopped short of an outright order, then wastes precious time giving the occupier a dressing down, which just personalises an already demeaning process.  Whether acting for a landlord or a tenant, that just makes me squirm uncomfortably in my seat.  What I want from a DJ is empathy for both sides and proper scrutiny of both sides’ positions in an appropriate environment which allows both sides proper opportunity to present their case without them being overwhelmed by the situation in which they now find themselves.

What do you think makes a good DJ?

Posted in Mortgage possession, Possession.

16 Comments

  1. Fortunately for my rather limited talent the DJ’s I’ve come across will adjourn cases rather quickly even at the slightest mention of a defence.

    My DJ’s certainly seem to be tenant friendly. Whilst I can’t really complain I do sometimes pity the claimant sometimes.

    The claimants agents who usually seem to have no discretion in asking for anything other than an outright order even when the defendent can make their next payment plus something towards the arrears amuse me as they ask the DJ to make said order knowing full well they aren’t going to get it.

    A small niggle about the DJ who I deal with reguarly is that they really don’t like hearing any sort of arguement as to why they might be wrong hehe.

  2. An interesting post, Dave.

    I like to quote Burroughs or Mamet in giving judgment, myself, but the 2 to 3 minutes allowed by Court staff in my region for possession lists rarely allow me time to let my judicial muse run free. (Or to look up the quotes.)

    While I would agree with Dave that the dressing-down on making a “borderline” suspended order may – at least sometimes – seem demeaning to the occupier, or at least their representative, the consensus among judges is that it may be done, in appropriate cases, to encourage the defendant into compliance with the order. Remember – we only have 2 minutes, and they may get made homeless next time…

    And I would agree that it must seem that some judges do not take seem to take sufficient care with the paperwork. Out of all the many jurisdictions the District Bench possess, housing is probably the one which combines technicality with in-depth legal knowledge the most, and there may be a need for more detailed training on some aspects of possession law and procedure.

    Finally, on that topic, in last year’s refresher training course we DJs and DDJs were told that the court should take as much time as it needs over a “PCOL List” possession case, and not feel harried by the short listing. It’s a point that advisers themselves might usefully dredge up if they feel they are being unfairly pressed for time themselves.

    • DDJ,
      We’re all well aware of the time pressure on the (D)DJ hearing a possession list in a major metropolitan area, but is there any internal judicial rule / internal court service rule about how long you’re supposed to be given per case?

      J

    • @J: No rule as such. You are supposed to take as long as the case needs, but in a busy PCOL list, especially if you are working in tandem with other judges, the inevitable pressures apply. I find that if a case is throwing up interesting points, or the occupier needs time and help to get their points across, you do tend to take your time. The danger arises in one-sided cases, where the judge will try to make up time spent on the contentious ones, and where the errors in paperwork are less likely to be apparent. Also, don’t assume that the metropolitan courts’ lists are the busiest – it depends more on how they are listed, and how many litigants on both sides actually turn up.

      @ dave: Yes, I guess it depends on what is meant by a dressing-down – some of my colleagues may well equate this with something akin to ritual humiliation (you tell me), while others may just make a gentle and ineffectual hint that compliance might be useful in future. Nearly all litigants do properly grasp what’s going on, alien though the process may be. I well recall Nic Madge’s excellent cd-rom, but do not believe that it has been updated. I am afraid that from past experience I do not trust all housing officers to brief the tenant. That is because they may not have time (because they are still in court on other cases), the tenant may rush off before they can speak, or (not infrequently) I form the view that the particular officer may not advise the tenant in properly objective and balanced terms. (Like the one who expressed surprise, late in 2008, that I expected evidence on how the Rent Arrears Protocol had been applied, saying that the usual judges at that court had never asked him that before…)

      @ Ahmad & S: Ahmad might be hinting that sometimes details like the proprietors’ names on HM Land Registry’s documents don’t match the names on the mortgage. If so, he’s right, and we don’t always spot errors like that, especially in cases where the occupiers don’t attend (see above!)

    • Officers do vary widely from the absolutely lovely and very tenant friendly to the needlessly aggressive and unpleasant (I remember one occasion where the officer spoke only to the tenant and never looked at the judge addressing all her remarks across the table – she and the tenant were both 30 minutes late and rather deserved each other). There’s no substitute for good legal advice, which, alas, is often not available.

      It helps if you know (whether to trust) the regular players but that won’t be possible much of the time.

      I find judicial quality at that level in those kinds of proceedings not at all bad (and I’m pretty fussy) although it is invariably patchy. Compared with some other areas of law I’ve worked in, it is positively gold plated.

      Good quality judicial training and guidance is all important. It is *very* encouraging that so many in the judiciary read nearly legal because it is clear that they care enough to stay informed about it. Good news for everyone.

    • @DDJ At the risk of exceeding my allotted time, and also entering a new subject possibly for a future post on the “good” housing officer, I would have thought that it would work if (a) the officer was told that they should write to the occupier in those terms or give that advice orally where the occupier has literacy issues, (b) that this comment would be entered on the court file and (c) so that, if the claim returned to court, and the officer could not show they had written that letter or given that advice, the court might not find it reasonable to make an order.

      I can understand the surprise of the housing officer to whom you refer, however odd that may have seemed. We all get attuned to the approach of particular DJs and DDJs before whom we appear. It can throw you if you appear before a different D/DJ who adopts a different set of rules/processes.

      I think Nic Madge should be asked to do his update (the original was around 2003/4, so much has changed since then – I hope some DJs aren’t still relying on it!).

    • Dave, I believe HHJ Madge reads the blog sometimes, so you may have just asked him ;-)

      I don’t want to start or contribute to a list of dubious housing officer ‘advice’ to tenants but there is a certain South London council that used to send letters to the tenant at the same time as applying for a warrant, saying simply that if the tenant didn’t pay off all the arrears by eviction date, they would be evicted. They’ve stopped sending those letters now, after taking a hammering, not least from some distinctly unimpressed DJs at the local court.

    • @Dave: I take all your points, but please be aware that at warrant suspension hearings (and sometimes not just the first emergency one), the judge usually only has the “execution (or bailiffs’) file”. You may not know this, but typically it lacks everything you would actually want to read, except for a bare summary of the possession order, the application to suspend, and the date of execution. It usually does not even contain the possession order or the warrant request (at least in the courts where I sit, anyway). As for the notes made by the possession hearing judge, or undertakings made then – forget it!

      Of course, I ask the staff to dig out the main file, but it can’t always be found in time. So the burden would be on the occupier’s adviser to bring the sort of relevant points that Dave has mentioned to the Court’s attention – but often there is no such adviser instructed, and the landlord’s or lender’s rep rarely have such information with them at such short notice (assuming they would disclose it, of course).

      For myself, I’d like to see CCR Ord 26 repealed and rewritten in a new CPR, with a proper 21st century Practice Direction to deal with such matters. But I’ve digressed enough, and am clearly dreaming anyway.

    • Thanks for taking part in our discussions, DDJ, and an interesting response. Dressing downs come in different forms, some more enlightened than others, but I do wonder if this is a “proper” judicial pose, so to speak, and the occupier may not realise its significance in the context of their participation in an alien process. Surely, though, it would be better to remind the housing officer to explain the consequences to the occupier after the hearing (and “good” housing officers will always try and do so), rather than the kinds of comments that we have all heard? (That raises the question of what a “good” housing officer is?!)

      On training, a few years ago HHJ Madge did a cd-rom on housing law for the Bench which was widely used and admired. I wonder if it has been updated and, if not, bearing in mind your comments, perhaps he might be encouraged to do so? “learning at a distance” is all the rage at out place these days!

  3. Excellent! I was hugely encouraged that a judge actually understood the importance of the complicated legal ownership processes in particular with securitisation issues that apply in many Mortgage cases. The very same issues arise here but very few District or Deputy District Judges have any understanding of the importance of these processes, relying as they often do on the Land Registry data as being sufficient to prove ownership (the Land Registry data is often seriously challengeable). I doubt that DJ’s here will have time or inclination to make proper enquires but if they did many unnecessary repossessions would be stopped.

    • Unfortunately under English law, if the land is registered, the actual ownership of the charge is of little relevance; all that matters is what is on the office copy entries.

      S.52(1) of Land Registration Act 2002 provides that the proprietor of a registered charge is to be taken have, in relation to the property subject to the charge, the powers of disposition conferred by law on the owner of a legal mortgage.

      Thus, even if the registry have got it wrong, the owner of the charge on the register has the same powers as a legal owner. It is a matter for the registry, not the court.

      This can lead to unfair outcomes, but it was perceived that the system of unregistered land lead to even more unfair outcomes.

  4. The Judges’ Republic of Portsmouth has some good DJs. Or is that bad DJs? Depends on your point of view.

    All five are formalists, but one in particular is a formalist to the nth degree. Some say his punctiliousness is to the actual detriment of the mortgagor. But he’s just being independent, and damn the many formal complaints.

    It is amusing to watch lenders’ representatives trying to formulate arguments based on the overriding objective when their paperwork is so crappy and their fees so poor.

  5. Interesting discussion. My concern has always been with DJ’s who do not properly understand the law. I have tended toward the view that as the Court system has come under increased pressure of late there have been DJ’s sitting possession lists who have very limited knowledge of this area of law (although I am sure they are excellent in other areas). This is compounded by omissions in the JSB bench book for possession actions which, for example, has little or no guidance in relation to Common Law tenancies and forfeiture. This lack of knowledge is often what uses up the most time in possession lists as the Court then needs to be walked through the legislation. Actually I am sure the Law Commission identified this problem when they suggested that possession actions be moved to a specialist property tribunal….

    My other beef is with DJ’s who do know the law but choose intentionally to ignore it but that is a rant for another day!

    • To be fair it is an immensely technical area of law. Trying to explain that an assured agricultural occupancy really does have an implied term for repair in it takes a surprisingly unnecessary amount of time (to pick an obscure example). It could be simpler.

      A lack of binding authority is also a big problem. There has to be a way to organise this better. The uncertainties about the TDS ought to have been decided by an authoritative tribunal by now in any well regulated court system, instead we all scrabble around doing our best.

  6. Further to the comments above, I understand that Nic Madge would be happy to update the CD-ROM, if asked to do so by the Judicial Studies Board, but that it is not a decision for him to take. Perhaps there should be some approach/enquiry to the Judicial Studies Board about possession claim training for judges (DJ and CJ, DDJ and recorder).
    Hint, hint …

Leave a Reply (We can't offer advice on individual issues)

This site uses Akismet to reduce spam. Learn how your comment data is processed.