Trial Category Archives - Page 6 of 6 - Atlanta Injury Lawyer Blog Published by Atlanta Personal Injury Lawyer

The easy answer to the question I pose above is an emphatic “Yes!” Right? For any homeowner to have his or her home wrongfully foreclosed upon and scheduled to be sold at auction on the Courthouse steps, as we still do here in Georgia through nonjudicial forclosures ( a topic which deserves it’s own blog), would create enormous, undue emotional stress. Your home is, more than likely, the largest purchase you have ever made and has the highest financial investment value of anything you have ever personally invested in. We call our home our “castle.” So when a corporation wrongfully forecloses on your castle, your home, trying to sell the house right out from under your homeowning feet, don’t you think this would just naturally cause you some undue stress? Worrying whether you would lose your house? Lose your biggest investment? Lose the roof over your and your family’s heads? Should whoever did so wrongfully foreclose on your house have to face justice in the form of a jury?

One would thing so, but when it comes to our ever-increasing conservative Eleventh Circuit Court of Appeals, the answer, unfortunately, seems to be “not so fast.” In a recent 11th Circuit opinion, the Court held although a person in such a position of being wrongfully foreclosed upon may very well have a claim of intentional infliction of emotional distress, the amount of proof one must offer just to get past the judge and get to a jury may be impossible to meet, thus ending the homeowner’s ability to seek redress for the wrong. In Lodge v. Kondaur Capital Corp., et. al, issued on May 8, 2014, the Eleventh Circuit (of which Georgia is a part) held that the plaintiffs, the Lodges, had not offered enough “proof” of emotional distress suffered by them at the thought of their home being wrongfully foreclosed upon. The Lodges, at the time, were in bankruptcy. Federal bankruptcy laws forbid foreclosure upon a home that is in bankruptcy. The Defendants in Lodge willfully violated this law, known as the “Bankruptcy stay” and moved to foreclose upon the Lodges home, even though that was the very reason the Lodges had filed for bankruptcy.

The Court found against the Lodges, denying them the right to have a jury decide their case. The Court said the Lodges hadn’t offered the Court enough proof of emotional distress. But whether there is sufficient proof of a claim should be a question to be decided by a jury, not three appellate judges. As the attorney for the Lodges, Ralph Goldberg, noted in response to this narrow opinion, “I don’t understand why anybody would not think that…hearing that your house is about to be foreclosed upon is significant emotion distress. It seems to me they’re out of touch with how normal people lead their lives.”

I have been watching with great interest news reports on the Oscar Pistorius trial that is going on right now in South Africa. Oscar is known as the “Blade Runner” as he runs on prosthetic legs and was the first person with prosthetics to run in the Olympics, not the Para-Olympics. He is, unquestionably, a celebrity in South Africa and hero there. He is widely loved by the citizens there. The Pistorius trial has proven to be South Africa’s “O.J. Simpson” trial, although we don’t know yet if it will have a similar outcome. The Proscecution alleges Pistorius intentionally shot his girlfriend, Reeva Steenkamp, through a closed bathroom door in his home during the middle of the night, killing her. There is no doubt that Oscar killed her; the question is, what was his intent? The issue of a criminal trial is often not who did it, but rather what was going on in the mind of the defendant at the time he did it?

It is an intriguing case. One of the things that interests me is that in South Africa, this case is being tried and will be decided by the judge, not a jury. The case has really put the legal system of South Africa in the spotlight. South Africa abolished jury trials in 1969, while the country was under apartheid, due to fears of racial prejudice by white jurors. Pistorius will be tried in a high court in Pretoria by Thokozile Matilda Masipa — the second black woman appointed to the bench since apartheid ended. This would almost certainly never occur in the United States. A criminal defendant can certainly consent to having a judge decide his fate, known as “bench trial,” but that is extremely rare, given that conventional wisdom says a criminal defendant has a better chance with a jury than a judge.

Likewise, for civil plaintiffs in cases asking for money damages for personal injuries, the kind of case I try, the conventional wisdom is to have the case decided by a jury, not a judge. Again, the parties could, by mutual consent, agree to have the case bench tried by a judge, but that would be highly unusual. One of the biggest risks of a bench trial is having the judge, that one person who decides your entire case, is against you? You lose! It sometimes takes four or five years for a civil case to reach a trial, and in one instant, based on who your judge is, you have lost because it was all or nothing…you had to convince one person and you couldn’t do it.

Articles Posted in Trial

Would You Be Upset If Your Home Were Wrongfully Foreclosed Upon?

Judge or Jury? Which Would You Prefer Decide Your Fate?