Big Bully Bank Case: Part 9: The Banks’ MSJ

MSJ stands for Motion for Summary Judgment.  It’s a way for a party to an action to claim that there are no issues at hand thus no need for a trial.  What it really is the legislature’s and court’s way to cheat citizens of their constitutionally-guaranteed right to a fair trial.  From my perspective as a non attorney litigant, I’ll break this down the way any reasonable person would, that there is absolutely no justice in this so-called “justice system” and it should never be referred to as such.  It’s simply a legal system and a poor one at that.  Still, you shouldn’t compare it to some of the more medieval systems you see around the world.  We are, after all, a civilized nation, even though we allow big bully banks and some of our largest corporations to get away with murder literally and figuratively.  

If you’re just popping into my legal blog with this chapter, I urge you to go back to the top starting with Part 1 to understand the issues of my case.

As promised, the banks’ attorney filed his motion for summary judgment against us mid October 2012 which was about a month and a half after the ludicrous deposition grilling of me and my partner plaintiff by all the attorneys in this lawsuit.  And just as he promised, he would win.  The hearing took place on January 14, 2013.  Here’s how this debacle played out no thanks to the judge at one California Superior Court.

First, throughout my chapters on these motions for summary judgment, keep in mind this important legal citation: “If the plaintiff opposing summary judgment presents evidence demonstrating the existence of a disputed material fact, the motion must be denied.  Throughout the process, the trial court “must consider all of the evidence and all of the inferences drawn therefrom.” The moving party’s evidence is strictly construed, while the opponent’s is liberally construed.  It comes from Aguilar v. Atlantic Richfield Co., a case that’s supposed to be some kind of legal bible when it comes to summary judgment matters.

In my case the two banks were the “moving parties” … the pushers of the papers.  I like to think of them kinda like drug pushers … because they don’t care who they hurt: seniors, veterans, the mentally ill … I’ve read about foreclosure situations involving all these categories of people.  “Get off my property you old, retarded, PTSD-afflicted veteran, TRESPASSER!”   — That’s the wording they use in a letter the banks now include in every mortgage modification denial they send out.

Matter of Fact, Matter of Law
The defendants kept proclaiming that as a “Matter of Law” they were entitled to summary judgment in their favor without benefit of trial.  A legal dictionary explains this concept: Matter of law is distinguished from matter of fact.  All questions concerning the determination of fact are for the jury, though a judge may determine the facts if a jury trial is waived or is not permitted under the law.  Further, ‘courts rule on all matters of law, including pretrial motions. Their decisions are based on statutes, rules of evidence and procedure, and the body of relevant case law.  When the facts in a civil action are NOT in dispute, one or both of the parties may request a court to make a summary judgment.  Summary judgment is purely a matter of law; the court accepts the relevant facts as presented by the party opposing (in this case, ME) summary judgment and renders a decision based on the applicable legal principles.  But, do matters of fact ever interpose themselves upon matters of law such that a trial becomes imperative?

The defendant banks kept saying I was a “trespasser” the second they foreclosed on my landlord.  Apparently case law supports that contention.  Apparently, also, the courts are not the least bit concerned with the particular circumstances surrounding a case.  That’s like someone saying “You shot the Sheriff” to which you respond “NO, I DIDN’T.” and you explain why and the court then rules, as a “Matter of Law”, that anyone who shoots a sheriff should be hanged by the neck until dead because that’s what the penal code and relevant case law says.

Issue 1: Trespassers versus Tenants
According to the banks it doesn’t matter if you had a lease and lived on a property for 20 years.  It’s as if you just walked in off the street and set up camp on their property and interrupted one of their foreclosure gang-bangs.

The banks cited one case that supported that contention and I cited others to support my claim that I had been a tenant with a long-term lease who had no knowledge of foreclosure and was never ordered to leave by anyone.

Even though there’s a federal law, the Protecting Tenants at Foreclosure Act of 2009, that attempts to safeguard some rights for tenants, and numerous California laws protecting tenants and citizens in general from invasion of privacy and trespass, the trial court judge sided with the banks.  Now, that I was an official “trespasser” and there are no laws in the entire state of California  to protect any of my rights, according to the banks and the court, my case fell apart like a stack of dominoes.  Didn’t see that coming.  Shit, even illegal immigrants in this country have more rights than I do.

Remember, I didn’t own the property; I wasn’t privy to mortgage and foreclosure actions; there was no unlawful detainer against me; there was no notice to vacate; the big bully bank didn’t perfect its title to the property until nearly two months after acquiring it at an auction sale.  I pointed out all these facts in my opposition papers, of course, but being a mere pro per (self represented party), the great unwashed that dare enter the hallowed halls of (in)justice, I was ignored and derided.

The judge seemed more interested in what was on her computer and what the two attorneys at the back of the court room were saying to each other rather than listening to me while I made my oral arguments against the motion.  I kept waiting for her to admonish those idiots for speaking while she was on the bench.  After all, there’s a big “Keep Quiet” sign for all to see.  But it never happened.

When I got home I wanted to kick myself for not having the guts to have said something myself.   I’m confident that one day I’ll get to play one of those kick-ass attorneys on TV  like James Spader did in “Boston Legal”.  Maybe then I’ll get some tiny bit of revenge by tearing that actor-judge a new asshole.  I may have to write myself a show, but I’m game.  I’m already planning a book on this whole case.  Any literary agents out there reading this?  It’d make a good movie too.  I think Meryl Streep would be excellent playing me.  I’m “Legally Blonde” and loving it, but we blondes only have more fun when we go into kung fu mode.

By the way, as if being fucked by the judge’s rulings aren’t bad enough, I checked the court’s website for confirmation of the Jan. 14th hearing  and saw this little tidbit:  “PARTIES STIPULATE TO WAIVE THE CLERK TAKING DOWN THE STIPULATION VERBATIM AND WILL RELY ON THE REPORTER’S TRANSCRIPT.”

I called and pointed out to the judge’s clerk that at the hearing, I was never asked and never stipulated to anything.  She swore up and down that both parties had.  Now I see that same statement appears on the Jan 24th MSJ hearing for more of my defendants.   I don’t know what kind of game these people are playing, but as I said pro pers get no respect.  I got the defendants lying; I got the attorneys lying and now the court clerk.  Christ almighty.

Throughout my case, I’ve argued that I was menaced and threatened by some of these defendants who also tried to break into my home, after trespassing and invading my privacy  … and that all defendants engaged in a series of negligent and intentional acts (lying, concealment, harassment, termination and interruption of utilities), all resulting in severe emotional distress.  Yet in his motion and in oral arguments before the judge, the banks’ attorney said ‘the only thing Marin claims is that someone came to her property, a few words were exchanged and then they left.’  Huh?  What’s this, part of the blooper reel from  “While You Were Sleeping”?  Maybe I should have used sign language and semaphore to get my points across.

Meanwhile, the little wheels in my head keep coming back to those cute little phrases: Throughout the process, the trial court “must consider all of the evidence and all of the inferences drawn therefrom. The moving party’s evidence is strictly construed, while the opponent’s is liberally construed.”   Oh, please … it’s bigger bullshit than what I faced during Discovery.

Issue 2: Liability: 
The banks argued that everyone they hired was an independent contractor responsible for their own illegal actions and the banks could not be held liable for anyone else’s behavior.  Not true.  Principals can be held liable under certain circumstances.  It has to do with how much control the principal has over the contractor, thus making him or her an agent/representative, or if the hiring of that contractor was negligent.   I had laid out a bevy of charges against my defendants and stated in my complaint that if defendants had not sent the trash out company to my home, Plaintiffs would not have suffered severe emotional distress.  Apparently the court was unable to “liberally construe” that the sending of menacing and abusive, privacy invading scumbags constituted negligent hiring.  She ruled that the banks had no responsibility for them or the realtor who was under the complete control of the banks as to when to offer and how much to offer for a cash-for-keys arrangement to get us to vacate quickly.

Issues 3 and 4: Negligence and Infliction of Emotional Distress:  Because the court ruled we were trespassers and that the bank had no liability for the actions of the scumbags they hire, the banks therefore were not negligent for having our utilities interrupted and terminated or for the threats, menacing, invasion of privacy and trespass.  And because all these causes of action were sunk in the biggest pile of manure I’ve seen since my days as an equestrian, I couldn’t have a claim for punitive damages (Issue 6) left standing even though these two banks do the shitty things they do on a daily basis.  

There is no punishment for their standard operating procedure.  They are free to bounce around the country, kicking people out of their homes, suing them, rolling over them with dumpster driving thugs and lying realtors.

Protect Yourself
If YOU feel your home is in danger of being invaded such as mine was, do not, I repeat, do NOT, under any circumstances, set booby traps on your property to catch the goose stepping slugs they send.  If the slugs get hurt because you’ve dug a deep, deep hole and covered if over with pine cones, you’ll be the one carted off and imprisoned.  Here’s what you should do instead — write a blog!

What else should you do?
You must immediately scream at the slugs to “HALT” (or “I’ll shoot”) and “LEAVE” the second you see their tank and dumpster roll onto your property.

What else could you do?
After consulting with experts in the field of home protection against goose-stepping slugs, I was told that you could set up video surveillance to catch the slugs in the act.  They also suggested that you take down the slugs’ license plate number, bring your camera and take pictures.  Of course, if you really feel threatened and if you’re in a remote area like I was, calling the sheriff or police and expecting them to show up in time is usually not an option. These experts then suggested that you sic your German Shepherd or Doberman on them. Even tiny yappers may do the trick.  They pointed out that the dogs will be considered independent contractors so you won’t be held liable for their actions.  And since you didn’t actually negligently hire the dogs, they can’t get you there either.  And when all else fails, they suggested that you throw the very same pine cones at them that you were thinking of using to cover over that deep dark hole you almost dug.

Yogi Protects His Brother From Big Bully Banks
Yogi Protects His Brother From Big Bully Banks

Make Room for Yogi (on the left)
I wanted to bring my cat Yogi to the hearing in a little travel bag reminiscent of “Legally Blonde”’s Bruiser but Yogi’s a Siamese and very vocal.  He might have disrupted the proceedings with howls of protest as the judge ruled against me.

The banks’ summary judgment motion was adjudicated in their favor originally on all issues except for negligence with respect to its hiring of the property management firm I affectionately refer to as “PMS”.  I pointed out to the judge that the bank attorney, in his oral arguments, had conveniently left out the fact that the banks had simultaneously hired the realtor to determine occupancy of my home.  The judge then said she’d take the issue of negligent hire under advisement and get back to us.  When her ruling came down a week and a half later she proclaimed that the realtor was an independent contractor and there was no mention of the property management company at all.  The banks hired two parties simultaneously to do the same thing and neither knows or cares what the other one is doing and the banks hold no responsibility?

Not only did the judge declare that the realtor was an independent contractor but she managed to totally ignore my  evidence which showed that the realtor was supposed to have overseen the actions of the property management company.  The banks hired one negligent “independent contractor” to oversee the actions of another.   So much for liberally construing my evidence that the banks were negligent in their hiring.  Maybe this judge has ADD or something.  I mean I wouldn’t want to be in her courtroom for anything really “serious” such as the murder cases she tries.  I pity the poor felons whose lives are on the line.

Author Ginger Marin is an actor, freelance writer and storyteller.  You can also find her on Google+

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