I live on a mountaintop about an hour away from Seattle.
I got out of bed instantly upon waking Friday morning, which occurred almost a half hour before my alarm was scheduled to sound. I immediately showered and put on the suit I had picked out the night before to wear during oral argument at 10:00 a.m..
It was not even 7:00 a.m. and I found myself fully groomed. I thought about whether I should just hang around for a while or leave. “Better early, than late,” I reasoned and drove down the winding gravel road and out the gate.
To my surprise, there were hardly any cars until just before the city limits. I got to the Courthouse about 8:30 a.m. and hung out in the law library.
I knew I was going to lose this summary judgment motion. Judge Linde had already dismissed my clients claims that the other defendants had not complied with Washington statutes while pursuing nonjudicial foreclosure proceedings. She had done this without affording my client (a borrower who simply wanted to insure he paid off the mortgage loan to the correct party) any opportunity to obtain discovery consistent with our court rules. This discovery ruling, holding a borrower was not entitled to discovery if s/he had knowledgeable foreclosure lawyer, was a “first”; not only in Washington, but the United States.
Up until Judge Linde’s discovery rulings, all litigants in Washington had the right to obtain pre-trial discovery consistent with the rules. Why borrowers facing the financial industry should be singled out as not having such rights is an issue which is now pending consideration in the Washington Supreme Court pursuant to a direct review proceeding. Click Here.
My adversary, an articulate and capable attorney, went first. He explained he would be brief because my client had no evidence. He argued: “I don’t understand what all the fuss is about” and handed the judge a note and allonge. I rose, objected, and asked whether he was acting as a lawyer or a witness because there was no evidence in the record, other than his statements, that his client held the purported original note.
He finished. I stood before the bench. I looked at the judge. “Hello Judge”. Then at my opponent. “Hello, Mr. Glowney.” Then I looked back at the judge and began: “It’s a long drive from the mountain where I live to Emerald City here. And when I come to this city I am not quite sure what the rules are regarding discovery and evidence here in Oz.”
And then I made my arguments: There was a question of fact whether the note was forged. There was no proof, other than the statement of an attorney, regarding who had possession of the note (which at that moment was with the judge on the bench.) Finally, there was an issue as to whether the note, the Judge was holding, was secured by the MERS deed of trust.
The judge listened patiently. When we were done the judge stated she believed her first ruling was correct. Accordingly, she opined, there would be no need to stay this case until the Supreme Court had a chance to consider direct review of the court’s ban on borrower discovery. I reminded her that the certificate holders were still named as defendants so the judgment was not final.
As my adversaries and I rode the elevator down to the ground floor, there was a camaraderie that few but lawyers understand. “You win some. You lose some.” Its all part of the job.
I asked whether they really wanted a final judgment in this case, given they had not filed any counterclaim to enforce the note or foreclose on the property. “You know, if you get a final judgment now you may not be able to enforce the note later.” I promised to get them a motion to dismiss unasserted counterclaims early next week.
We parted ways. I did a quick interview about the hearing. Then hopped in my car and drove out of the city as quickly as I could.
I called the office to see what was going on. Our office had won a different motion in a different county. So it was one win; one loss for this Friday.
My appearance in OZ had not been fun; but was not unpleasant either.
I decided not to go to back to work. I drove back to the mountain and spent the rest of the afternoon at my home and in the Wind & Water Gardens.
#ScottStafne #discovery #EmeraldCity #OZ #oral argument