Banking Law

Cindy Cooper got her head handed to her last week in Buffalo. Whether she'll shuffle off, dry up and blow away is anyone's guess. If she comes back for more, I'm assuming that the judge will hand her not only her head, but her ample posterior.

As faithless readers may recall, last August we detailed the oh-so-creative efforts of Ms. Cooper, an attorney in the Buffalo, New York, City Attorney's Office, to try to manufacture a claim that lenders who had foreclosed on a borrower's mortgage loan, but not yet obtained title to the property nor exercised control over the property, were somehow "owners" of the property and subject to liability for its condition, "and that the lenders were not only liable for common law nuisance and city code violations for the specific properties on which they had foreclosed, but jointly and severally liable for creating a public nuisance." We thought then that her claims were groundless, and the trial judge agreed.

In what one trial lawyer described as "a smart approach," Judge John M. Curran, "instead of addressing the core issue whether a lender who commences a foreclosure proceeding, but never foreclosing is the equitable owner, simply found that the allegations failed to state sufficient facts" on which to base a claim. He dismissed the claims without prejudice and gave Ms. Cooper until the end of the month to come up with sufficient facts and amend her complaint.

Good luck with that, Cindy.

I suppose that some trial lawyers for the defense made a bundle off of this abuse of prosecutorial discretion. No other purpose was served than that a "creative" nerd got to harass lenders with a "creative" complaint, based upon the kind of antics that used to get nerds hissed, booed, and laughed at by the cool boys and girls in law school, the latter being the ones currently doing productive work (if there is such a thing) in the practice of law, while the subjects of derision do the kinds of jobs where they spend the taxpayers money paying back the popular kids for all the slights they suffered in their neurotic formative years. It's these repeated patterns of dysfunctional behavior that make one long for foreign climes free from a lawyer-per-capita ratio approaching meltdown proportions.

A trial lawyer close to this waste of time and money expressed the hope that "this will be the end of it." I also hope that, but I never hold my breath.

It's an interesting, though unsurprising, sidenote that while Ms. Cooper's initial complaint received all kinds of favorable hometown press, the dismissal garnered hardly a whisper.