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» VISIT US ONLINE @ DSNEWS.COM 33 there was originally none. Depending on the jurisdiction and the circumstances of the case, a servicer may be required to re-evaluate the homeowner for a loan modification. However, if no obligation exists, servicers that value efficiency will choose to decline starting another review when it has no chance of success and creates no advantage in defending the litigation. In what ways do you help the servicers you work with streamline the appeals process? We search for ways to terminate the appeal short of a decision on the merits. In cases pending in backlogged appellate courts, search for opportunities to ditch the appeal earlier by motion. Appellate courts tend to issue decisions on motions a lot faster than full-blown decisions on the appeals' merits. Sometimes, this is as easy as identifying a jurisdictional defect, like an untimely appeal. But there are other more subtle attack strategies too. Has a pivotal issue in the appeal become moot? Is there a way to have a party designated as a vexatious litigant? Is there an order you obtained in the trial court you can enforce while the case is on appeal? If so, that might be a source of unexpected leverage— most appellate courts have the inherent power to dismiss an appeal where a party fails to comply with a trial court order (the disentitlement doctrine). In short, don't assume you'll need to wait two years for an appellate court to file a decision on the merits. ere may be a way to kill the case earlier. How can attorneys partner with servicers to predict and plan for litigation expenses? Forming an estimated budget at the suit's inception is typically helpful for both us and our clients. And if something in the case occurs that dramatically impacts the budget's estimate, then obviously updating the budget is important. Flat fee billing structures are helpful for those clients that want greater accuracy in forecasting legal expenses. Another area that is sometimes overlooked is scrutinizing whether any offensive litigation can be filed that might offset the cost of defense. Default servicing litigation has traditionally been strictly defensive in nature. But an unsettling number of lawsuits against servicers sometimes reveal fraud and other misconduct committed by borrowers or other third parties. Yes, pursuing a cross-complaint may be futile if the target has no assets. But not always. "[I]n some jurisdictions, our basic understanding of loan servicers' roles and obligations is changing. Do they owe borrowers a duty of care when reviewing loan modification applications? Courts are dividing over that question, so the answer may depend on the jurisdiction in which you're litigating." THE LEADER IN DEFAULT SERVICING NEWS Help shape the next issue of DS News. Drop us a line at Editor@DSNews.com.

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