DS News

DS News January 2021

DSNews delivers stories, ideas, links, companies, people, events, and videos impacting the mortgage default servicing industry.

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Page 46 of 99

45 5) CAN THE MATTER BE RESOLVED QUICKLY AND EASILY, OR WILL IT REQUIRE EXTENSIVE DISCOVERY AND TRIAL PREPARATION? If a matter can be resolved quickly and easily, there will be minimal strategy needed and minimal expense. On the other hand, a matter that involves considerable discovery and trial preparation will be very expensive. Most likely, such a matter will coincide with intricate strategy as well. 6) WILL CREATIVE THINKING AND SOLUTIONS BE NECESSARY TO RESOLVE? Creative thinking and solutions tend to evolve from cases in which the issues are complex or cases where the evidence is difficult to obtain. e more creative thinking that is applied to a matter, the more time and expense will be involved. In addition, a more intricate strategy will be necessary. 7) ARE THE ISSUES MATTERS OF FIRST IMPRESSION? In more lay terms, this considers whether the issues raised have been litigated previously and could new law be potentially created. When allegations are new, counsel and the servicer must be cautious and deliberate in the strategy that is taken. e fear is always whether "bad law" will be created. In addition, the creation of new law many times involves appeals which is extremely expensive, and the strategy associated with deciding to appeal a matter is riddled with the fear of "bad law." at fear must be weighed against the need for the courts to decide the issue and the likelihood of success. 8) WHAT IS THE HISTORY OF THE LOAN? e history of a loan can significantly increase the degree of difficulty of the case. As mentioned above, a loan that has a history of transfers between investors and or servicers skyrockets the complexity. Piecing together the history and most likely the payment history involves a great deal of work. is will be expensive. On the other hand, there is considerable risk associated with defending the acts of the predecessors because the evidence is difficult to obtain. In addition, the servicer is not positioned to explain the acts of the predecessor. is is just one example. ere are countless others. 9) IS THE LOAN SUBJECT TO ANY IMPENDING SERVICE TRANSFER OR PURCHASE? If the servicer knows that the loan involved in litigation is on the verge of a service transfer or acquisition by another investor, all decisions regarding a budget and strategy must be very carefully considered. If possible, such a case should be removed from the pool that is being transferred. Generally, the transfer process makes it difficult for counsel to proceed. In addition, delays caused by the transfer process can have negative implications. If removing it is not possible, the budget and strategy should be placed on hold for the new servicer to handle. Again, if it is not possible, the strategy should be carefully planned because the servicer does not want to eliminate any options. 10) WILL THE RULING IMPACT THE INDUSTRY? e strategy in a case that only impacts one loan is very different than the strategy taken in a case that will impact all of bankruptcy or default services. In addition to the arguments regarding the specific loan, arguments will be made regarding the entire industry. Further, as with matters of first impression, such matters are inclined to involve appeals. ese are very expensive propositions. Moreover, careful consideration must be applied to the strategy to avoid a result that will negatively impact the industry. On the other hand, such an impact may warrant resolving the matter and foregoing the litigation. Kristin A. Zilberstein is a Supervising Attorney Bankruptcy for Padgett Law Group (PLG). In her role, Zilberstein leads PLG's docket-related matters in bankruptcy also known as bankruptcy litigation, the practices' national unit, and business-purpose loans. In addition, she is continuing her Chapter 11 practice with PLG. She is based out of the Dallas office. In bankruptcy litigation especially, a 'new normal' means planning for very involved and complicated litigation.

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