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From fighting for Guantánamo Bay inmates to going after shady banks: one lawyer’s story

From fighting for Guantánamo Bay inmates to going after shady banks: one lawyer’s story of refusing to give up when the courts wouldn’t listen.

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There is definitely no career advantage in standing up for the ostrasized, but that is just what one attorney does, and has been doing for quite some time. Josh Denbeaux comes from a family of lawyers, so litigating must be in the blood. He began in commercial and insurance law, but in 2004, he and his father, Mark, became two of the few attorneys willing to offer pro bono services to Guantanamo detainees after the Supreme Court rules that they could challenge their detentions. Denbeaux initially represented two Tunisian nationals: Rafiq Alhami and Mohammed Adbul Rahman.

According to David Dayen at Vice, in 2006, Denbeaux and his father, began publishing a series of studies about detainee treatment through the Seton Hall University Law School. The first report used Defense Department data from military tribunals to illustrate that the vast majority of Guantánamo detainees were not part of al Qaeda, but rather bystanders in Afghanistan and Pakistan who had been delivered in exchange for bounties. Both Alhami and Rahman fit this description

Denbeaux’s proudest moment

Denbeaux’s proudest moment came in 2007. “We had a client (Mohammed Rahman). The State Department said, ‘We will release him to Tunisia,'” he tells me. “I said, ‘I don’t think the guy will survive two steps on the tarmac.'” The State Department refused to change the venue, so Denbeaux appealed to a federal district court in Washington, DC.

There, Judge Gladys Kessler ordered the US not to release Rahman because of the high probability of physical harm. Essentially Denbeaux kept these men alive and safe. They were eventually released to other host nations.

So how did Denbeaux go from protecting Guantanamo prisoners to protecting homeowners?

Someone told him to represent homeowners because they were all getting screwed. Not hard to believe considering more than ten million homes have been foreclosed upon since the collapse of the housing bubble in 2006. This was of particular interest to Denbeaux, since New Jersey is one of the “judicial foreclosure” states; meaning a lender must get a court to sign off on the foreclosure before the approach the debtor.

Most of these foreclosures are successful because the homeowners cannot afford legal representation to challenge the foreclosure. Denbaux began offering free consultations to homeowners and received his fees from banks when he won cases.

He retained Hickman, a former Guantánamo guard, as a private investigator, who quickly found mortgage companies and their lawyers repeatedly broke the law. They lied about loan modifications, presented false, forged, and backdated documents to prove “ownership” of the loans. Many of the people Denbeaux’s helped had the ability to make modified payments and keep their homes, but the mortgage servicers refused to help them.

Comparing detainee representation and foreclosure defense

“Here’s the similarity [between foreclosure defense and detainee representation]: The lawyers have no authority,” Denbeaux tells me. “At Guantánamo, I thought I could speak to a lawyer. That’s what we need to do to settle a case. Foreclosures, same thing. The house is worth two hundred and fifty thousand dollars, and the loan is three hundred thousand, so can’t we discuss doing something in the middle? The bank lawyer would say no. Why not? They’re not authorized to discuss anything.”New Jersey judges initially didn’t want to hear these allegations.”

Eventually, the firm’s aggressive advocacy made judges take notice. Denbeaux’s attorneys started to consistently win cases by arguing that lenders could not prove ownership of the loans. The courts would eventually put a hold on new foreclosure filings, and in 2011, the Superior Court of New Jersey appointed a “special master” to oversee foreclosure procedures in the state.

Take for example Wells Fargo and Wachovia

They sold half a million Pick-a-Pay loans, which had low initial payments that shot upward within a couple years. Homeowners could never afford these deals, but they were enticed into them by the initial low terms and frequently slipped into foreclosure when the payments reset. Wells Fargo bought Wachovia in 2008, and assumed legal responsibility for the Pick-a-Pay loans. At the end of 2010, nine states reached “assurances” with Wells Fargo, a settlement giving Pick-a-Pay victims cash compensation, a shot at a loan modification, and the right to sue for additional relief.

But they then made a second class-action settlement, which it offered to unwitting Pick-a-Pay customers. If homeowners cashed the $178.04 check representing their settlement compensation, they relinquished their right to sue Wells Fargo in the future. (Note to self: always read the fine print). So the second class-action effectively nullified the assurances with the states.

Denbeaux suddenly saw all his Pick-a-Pay cases dismissed because the borrowers, Wells Fargo claimed, had given up their right to challenge foreclosure actions. Wells Fargo also promised loan modifications in the class-action settlement that were never granted; they instead stole the homes with impunity from people already abused by fraudulent loans, according to Denbeaux’s report.

Responding to Wells Fargo’s “misleading, deceptive” practices

Like he did in the Guantánamo cases, Denbeaux wrote a detailed studies of the Pick-a-Pay debacle and distributed it to state attorneys general, but officials ignored his requests to do something about it. Denbeaux said, “I couldn’t get the deputy AG to take my call in New Jersey. It’s a seemingly endless cycle of misleading, deceptive, and exploitative practices, in response to [Wells Fargo’s] misleading, deceptive, and exploitative practices.”

Despite the widespread belief that the foreclosure crisis has ended, Denbeaux & Denbeaux’s caseload continues to grow as homeowners stream into the firm’s office in a converted house in Westwood, New Jersey. While judges still tend to side with banks, recent rulings in New Jersey make it easier to sue for denying approved loan modifications and other consumer protection violations.

And that brings us to today

The firm’s latest strategy is to go around state courts and utilizes the consumer protection laws and agencies like the Truth in Lending Act (TILA), Fair Debt Collection Practices (FDCP), and Real Estate Settlement Procedures (RESPA). Although the federal consumer protection penalties are more modest ($1,000 to $4,000 per incidence of violation), federal courts can also demand disclosure of whatever documents have been requested, bringing to light facts that state court judges cannot deny.

And in a roundabout way, this forces the courts to acknowledge something foreclosed upon homeowners knew: there are some seriously shady dealings going on and attorneys like Denbeaux and his firm are homeowners best bet and first line of defense again being defrauded.

#ALawyersTale

Jennifer Walpole is a Senior Staff Writer at The American Genius and holds a Master's degree in English from the University of Oklahoma. She is a science fiction fanatic and enjoys writing way more than she should. She dreams of being a screenwriter and seeing her work on the big screen in Hollywood one day.

Fair Housing

When a WWII vet returned home and was denied fair housing, the course of history forever changed

Did you know that Fair Housing was inspired by a vet who volunteered his life to defend our nation, only to come home and be denied housing? What has happened since legislation was enacted and what is going on today? NAR CEO Bob Goldberg weighs in.

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Senator Brooke - Fair Housing pioneer

April marks the passage of the Fair Housing act of 1968, which the REALTOR® population commemorates, recomitting to expanded equal access to housing. Offering more texture to the ongoing fair housing challenge in America, the following editorial is penned by Bob Goldberg, CEO of the National Association of Realtors®, America’s largest trade association:


The legislation was going nowhere. At least not in a form that would have done much good.

Following months of debate amid nationwide unrest, the version of H.R. 2516 that cleared the U.S. House of Representatives was diluted and largely impotent.

Then it waited – idle – in the Senate for the remainder of 1967.

When the upper chamber eventually (reluctantly) took up the bill, the junior Senator from Massachusetts took the floor. Edward Brooke then told a story that’s as powerful today as it was 54 years ago.

Enlisting in the United States Army immediately after Japan’s attack on Pearl Harbor, Edward Brooke was assigned to the segregated 366th Infantry Regiment and soon entered into European Theater from the unit’s outpost in Italy. There, Brooke’s fluency in Italian was a tremendous asset to Allied war efforts, his covert actions in Axis territory earning a Bronze Star Medal for service in a combat zone.

He returned home a decorated veteran, a member of the group that would reverently be known as America’s “Greatest Generation” for its defeat of fascism and its persistence through the Great Depression.

Yet Brooke, who would become the first Black American popularly elected to the U.S. Senate, found himself denied the ability to compete for certain homes in certain neighborhoods because of the color of his skin.

“In the hierarchy of American values, there can be no higher standard than equal justice for each individual,” Brooke said in the winter of 1968. “By that standard, who could question the right of every American to compete on equal terms for adequate housing for his family?”

For Brooke, with his new wife and a blossoming family, the experience was devastating. But it was far from unique. Even for those returning as heroes from Europe and the Pacific.

While the GI bill promised to repay American soldiers for their immense sacrifices in World War II, many of those benefits were in truth only promised to White veterans.

“Here we were… fighting for freedom overseas when we did not have freedom at home. We had hoped and prayed that when the war was over… things would [be] different,” he said years later. “But when we came back, it was just business as usual.”

The encounter prompted Brooke to enroll in law school at Boston University, setting him on the path to public service.

With redlining pervasive in post-World War II America, historian Ira Katznelson notes that non-whites purchased “fewer than 100 of the 67,000 mortgages insured by the GI bill” in suburban New York City. Across 1947 Mississippi, just two of more than 3,100 VA-guaranteed home loans went to Black borrowers.

Something, it was clear in Brooke’s mind, had to change.

“Fair housing [was always] a problem for me,” Brooke recounted in 2007. “I lived in a time when you had redlining, where Blacks couldn’t get mortgages in certain areas… And I just believed that something had to be done dramatically, but effectively, to bring about fair housing in this country. So, I introduced legislation.”

Today, Brooke and Walter Mondale are recognized as the fathers of fair housing.

Together, these Senators from opposing parties and divergent backgrounds drafted S. 1358, the Fair Housing Act of 1968. Its language would eventually be adopted into the same H.R. 2516, legislation known officially as the Civil Rights Act of 1968. This initial bill had been watered down so much through House debate that its only real, remaining purpose prior to the adoption of S. 1358 was to protect civil rights workers.

As I outlined back in February, the assassination of Dr. Martin Luther King, Jr. catalyzed Congress into final, definitive action on housing, applying the public pressure and motivation lawmakers needed to move the Fair Housing Act from proposal to policy.

But it was Senator Brooke’s powerful experience as a Black veteran denied the inalienable right to property that helped birth the landmark law we now celebrate each April.

Senator Brooke - Fair Housing

This fight for equal rights and equal access throughout society persists in various forms, overt and obscure. In employment and education and health care. And, still, in housing.

Today, Realtors® and real estate agents play a unique role in the realization of the Fair Housing Act. The 1.5 million members of the National Association of Realtors® are on the front lines with consumers — both buyers and sellers — and see firsthand where discrimination is experienced.

Back in 2019, NAR began developing an implicit bias training video to share with our members and other industry professionals. This resource drew upon the latest scientific research to illustrate how our brains’ automatic, instant association of stereotypes causes us to treat different groups of people unfairly. The video has today been viewed by tens of thousands of Realtors®.

Building off its success, NAR earlier this month unveiled a new implicit bias classroom training program, which is eligible for state-level continuing education credit. (To maintain real estate licensure, agents and brokers are required by their respective state’s real estate commission to regularly complete a pre-determined amount of continuing education hours.)

The training explains how our unconscious brains immediately categorize people in the human effort to process information more quickly.

It then offers participants various tactics to help break down stereotypical thinking, ultimately allowing each client and consumer to be treated with an equal level of concern and respect.

NAR invited many of the most experienced trainers already engaged with At Home with Diversity® to complete the intensive, two-day certification process requisite to leading Realtors® through the program.

Ultimately, our hope is that this effort will raise the bar on the overall quality and expectations of fair housing training in this country.

But making housing fair in America requires so much more than a focus on implicit bias, a fact NAR recognizes well.

In his memoirs, Senator Brooke wrote that “the issue of open housing went beyond politics and asked white America to cast off prejudice… and to embrace justice for all.” He knew that justice, true justice, was not possible without true fair housing in America.

Edward Brooke laid his life on the line to preserve the principles of freedom, democracy, and justice. His experiences — his story — remain a critical component of our broader, national story. And it’s a constant, explicit example of everything our modern-day pursuit of fair housing embodies.

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Politics

FCC looking into how landlords are getting around predatory ISP laws

(NEWS) It became illegal in 2008 for landlords to restrict ISP access to their “partners,” but the FCC is looking into loopholes allowing the practice to persist.

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FCC landlords ISP agreements

The Federal Communications Commission (FCC) recently announced it is seeking comments on broadband access in multi-tenant buildings.

The FCC wants to gain a better understanding of consumer choice and pricing in apartment and office buildings. Even though most cities have multiple internet service providers (ISPs), renters are often stuck with only one option due to agreements between ISPs and landlords. 


The Wireline Competition Bureau is seeking comments about:

  • Revenue sharing agreements between landlords and ISPs, which incentivizes the landlord to steer tenants to a certain provider.
  • Exclusive wiring agreements in which a landlord says only one ISP can provide service to the building.
  • Exclusive marketing agreements in which only one ISP is allowed to market in the building.

In 2008, the FCC banned exclusive contracts for telecommunications services in apartment buildings.

Even so, ISPs and landlords have found ways to circumvent the rules, preventing tenants from having internet options. A landlord is prohibited from contracting with an ISP for sole service to a building.

One way to get around this rule is to deed ownership of the wiring to the landlord, allowing the landlord to decide which companies have access or not. The FCC rules do not apply, because the landlord owns the wiring.

ISPs can also enter into an agreement with landlords to prevent advertising in the building. The landlord can impose fees on companies that need access to install new wiring. All of these practices block competition for tenants, which drives up prices and limits options, and is the focus of the FCC’s push.

The FCC wants to hear from consumers who have dealt with broadband building restrictions. Tenants, landlords, real estate agents and even ISP owners can comment on the FCC proceedings for 30 days following the public notice.

If you’re a property owner, it’s time to review your agreements in this area to make sure you don’t end up in the FCC’s crosshairs now or in the future.

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Politics

Housing supply crisis: NAR insists governments take ‘once-in-a-generation’ action

(POLITICS) After years of sounding the alarm bell regarding housing supply and demand imbalances, NAR is pushing local and federal governments to respond “immediately.”

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home sales

The National Association of Realtors (NAR) has repeatedly beat the drum for over six years regarding housing supply, so much so that perhaps real estate practitioners have simply accepted it as the ongoing problem that it is. But in a new report by Rosen Consulting Group, released by NAR, housing supply is officially in crisis across all regions.

NAR Chief Economist, Dr. Lawrence Yun has reiterated in most reports for years that the only relief for increasingly tight inventory levels lies an increase in housing starts, placing industry hopes firmly in the hands of American homebuilders who are strapped with lending standards that shifted after the 2008 housing crash, now paired with labor shortages and astronomically skyrocketing pricing on materials.

NAR reports that after decades of under-building and under-investment, housing is now in more of a “dire” status than previously expected. The report, “Critical Infrastructure: Social and Economic Benefits of Building More Housing” asserts that local and federal policymakers must consider “once-in-a-generation” action and that “no matter the approach,” action must be “immediate.”

For an organization that typically employs very tempered wording, this aggressive language is alarming.

As bloggers scream “housing bubble” and analysts warn the script looks nothing like 2008, the timing of this report and the alarm bells being run by NAR are not to be ignored.

“The state of America’s housing stock… is dire, with a chronic shortage of affordable and available homes [needed to support] the nation’s population,” the report asserts. “A severe lack of new construction and prolonged underinvestment [have led] to an acute shortage of available housing… to the detriment of the health of the public and the economy. The scale of underbuilding and the existing demand-supply gap is enormous… and will require a major national commitment to build more housing of all types.”

Dr. Yun notes “It’s clear from the findings of this report and from the conditions we’ve observed in the market over the past few years that we’ll need to do something dramatic to close this gap” between hopeful homebuyers and tightened supply levels.

The report urges lawmakers to “expand access to resources, remove barriers to and incentivize new development, and make housing construction an integral part of a national infrastructure strategy.”

NAR President Charlie Oppler, says that adequate increases in housing construction this decade would add an estimated 2.8 million American jobs and $50 billion in new, nationwide tax revenue. “Additional public funding and policy incentives for construction will very clearly provide huge benefits to our nation’s economy, and our work to close this gap will be particularly impactful for lower-income households, households of color and millennials.”

Earlier this year, NAR encouraged policymakers to reform zoning and permitting policies, also recommending other policies to address national housing supply shortages.

At that time, it sounded like an urgent request. Today, we hear an alarm bell, a demand.

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