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?