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Procedural Justice: How We Can Find Our Foundations in the Worst Case Scenario

category north america / mexico | community struggles | opinion / analysis author Sunday January 20, 2013 14:00author by SB - Rochester Red & Black, Take Back the Land Report this post to the editors

In the housing defense movement, we often get bogged down in legal approaches and the banking fraud we use as leverage. But what about situations when it is merely a lack of funds for the person living in the home? It is at those moments that you see the most crucial element of the struggle, and how you can use this organizing to transform the conversation about housing.


Procedural Justice: How We Can Find Our Foundations in the Worst Case Scenario

In the housing defense movement, we often get bogged down in legal approaches and the banking fraud we use as leverage. But what about situations when it is merely a lack of funds for the person living in the home? It is at those moments that you see the most crucial element of the struggle, and how you can use this organizing to transform the conversation about housing.

One of the foundations of foreclosure-based eviction defense tends to be a close reading of the entire mortgage history of the property. This could include closely looking at all of the ownership records, reading through every single foreclosure document, looking up bank information, and so on. The idea behind this is two-fold. First, it gives us a clear understanding of what has happened, and what will happen. This allows us to competently work on the case, discuss it with others and the media, and then create a strategy with tactics that make sense for the situation.

The second reason is basically to look for fraud and inaccuracies. In a recent study sample coming out of the County Assessor’s office in San Francisco, 84% of mortgage foreclosures issued had some level of illegal fraud on the part of the bank. A full 99% of these foreclosures had some degree of irregularity.(1)

Most people you may talk to who work in foreclosure defense, myself included, rarely see a case that does not have something confusing and conniving coming from the bank. This often includes the fact that the occupant(s) were never actually served the foreclosure notice, though the bank insists they were and has forged documents indicating that the paperwork had been adequately delivered in person. Beyond this there could be issues about who owns the note, how the mortgage was written, and then obvious conveniences for the bank like “robo-signing” and MERS mortgages that leave it confusing as to whether or not anyone owns the property.

These issues are foundational when discussing the crisis of foreclosure in the U.S., especially when discussing moratorium policy. Here people ask the sheriff of a locality to stand down from executing foreclosure-based evictions, often times simply because there is no way to guarantee that they are executing a foreclosure that is legally “fair.” With fraud so rampant, it seems completely logical to challenge the execution of foreclosures on a systemic level since the mechanism for executing this type of property law is fundamentally broken. The procedural justice, the idea that if you play by the rules as they are written you should get the fair result, has completely gone out the window today and the logic of resistance is becoming commonplace.

But that is assuming that the rules were fair to begin with.

Fraud is a key component of the discussion of mass foreclosure and displacement, but there is often an interest among foreclosure activists to stand with the case that is actually more cut and dry. The absolute anger about the lack of procedural justice is an easy talking point, and most people in most communities can share in this outrage. But what about the person who simply cannot pay their mortgage? Is there situation not as key to the discussion about the problems with housing law and property inequality? In many ways it is a clearer tool for fighting the foundations of housing injustice.

When a mortgage foreclosure is executed fraudulently most people can look at it with outrage. Politicians, bankers, and the neighborhood trash collector can equally say that this was done unfairly and illegally. The assumption ends up being that we need to weed out the bad elements so that the property system can continue more fairly. The idea here, like radical reformists that continually cite the constitution in their arguments, is that if we just clear out the illegal and selfish elements from the banking institutions then we would be able to return to our procedural justice. Problem is, the procedure was never fair.

The foundation of the economic framework in the U.S. is inequality. Unequal access to resources has been part and parcel of the American capitalist experience, and there is no question that this will continue without interruption unless the system is halted altogether. This inequality exists objectively, but the fairness of it tends to be an accepted part of our culture. Property law is merely an extension of this like anything else; the only difference is that even though housing is a basic necessity we have yet to ensure access to it.

For most low and medium income people, a slight change in their living conditions can create a catastrophic result for all of their financial efforts, including their home. The loss of a job, an illness, injury, legal expenses, or some other hardship can easily throw a person into extreme turmoil. This is not because of some moral failing, but simply because of the circumstances of one’s life, including not having a crash pad for when things go wrong. Given that this reality is at the heart of the housing crisis, the campaign for housing justice and community control over land must be a fight for people to have access to adequate housing no matter what their income situation is. There should not be a point at which someone gives up the right to a home because of a reduction in income. It is easy to come to the defense of a person who was cheated, but it is harder for many to support resistance to eviction when the tenant or homeowner simply cannot pay. To support such resistance would challenge the basic assumption that the right to access comes from the ability to pay.

The direct action work of defending against a foreclosure is a political statement, where the collective strength of the community has the ability to preserve someone’s material needs. Here the community both supports someone in retaining one of the most important parts of their life, and in doing so we see that we must violate both the laws and the assumption of capitalism just to meet someone’s basic human needs for shelter. In some ways, the resistance for someone who is simply behind in payments and cannot come up with the financial resources to stay afloat exposes the more basic contradiction. Even when the system works, even when a person engages honestly with the financial institutions, they can still be forced out into the streets. It is true that the ways in which banks often deal with people unable to make the standard payments borders on criminality, but this is still standard practice. Things like principal reductions and modifications can aid in these situations, and they do, but the fundamental problem is unearthed in situations where everything goes according to plan and it still goes wrong for the homeowner. In these moments the contradictions of a system fundamentally built on wealth inequality are clear, and there is no way to sidestep it with talk of fraud or some conspiracy theory. The plain fact is that for the majority of the American population, a change in life circumstances (even for a brief period of time) can leave them without a home. When people just don’t have the money, the most concrete political conclusion is clear: that we stand with the right of all people to have a home, not just those who were “cheated” by this ruthless system.

Property law is one of the foundations of commercial capitalism in the U.S., even more cemented by the commodification of property through the mortgage securitization process. The home is also the primary place where working people tend to hold their wealth, except for those lucky enough to have a retirement fund. Challenging the kind of property relations that exist for housing is essential to undermining the assumptions that inequality is either fair or incontestable. The illegality of the foreclosure mill process is criminal (in the most basic sense of the word) and must be challenged at every angle, but we have to resolve not to stop there. If we allow this to simply be a movement to right the new wrongs then we will never get to the systemic truth that it is not a fair economic world in which people are not guaranteed the most central part of their social character: a home. The fraud exists here often times not because there is some type of interpersonal malice on the part of the banks, but simply that it is easier and more profitable for them to skip proper documentation so that they can roll out the foreclosures even faster. This is a crack in the system, a point where the inequity of housing property relations can no longer justify itself as properly maintained. Simply to execute their foreclosures profitably on such a massive scale, they must break the law - and there is the kernel of a movement to resist them at every angle.

It is important for people in the housing movement to join up and take this fight beyond claims of legitimacy, to the defense of housing as a human right. The most basic case of foreclosure may be the strongest in the long run because a successful defense in these situations is not just a defense against crime, it is a defense against a capitalist system that allows some people to have many homes while others fight to keep just one.

Often times the discovery that there is no illegality in a case, which is quite rare, can be demoralizing to the people working on it. It is not easy to present in court; under educated public audiences can sometimes lack solidarity, and it is much more difficult to pressure the banks. That being true, it is a profound opportunity. When successful, the defensive action will show that a movement does not just have the ability to force institutions to behave honestly, but actually forces them to step back because of the united power of a community. This is always going to be the foundation of a new power dichotomy in our neighborhoods and, though it is more difficult, it will be the most transformative example of what it means to fight for systemic change in housing. If the institutions are to meaningfully change it will not be simply because a movement forms to fight “fraud,” it will be because regular people refuse to be victims to the rules of a society that shove them out of their home. It will be because they rebel against poverty. We should take these difficult opportunities as the best example that beyond the present financial crisis and the predatory practices of the banks, there is still a world that needs to be transformed.

There is still a profound challenge presented by situations where there is no clear irregularity. In these situations it is much more difficult to turn to legal resources, or even to convince those who are somewhat uninitiated to the issues that play into mortgage foreclosure and class inequality. The tactical options left, then, are those based on mass solidarity. When we are stripped of the options that the state has given us then we are left only with the ability to come together in a show of class power to challenge the very infrastructure of poverty. The tactics then shift away from the entire extra possibilities since those are, by their very nature, already exhausted. Now it is up to the collective action of the community to defend the home, and it is in those moments that you have boiled down your tactical choices to the ones that will be foundational for all truly transformative battles. By a lack of resources you have actually stripped away the extra elements and you are left with class struggle in the most literal and real way that it could possibly be imagined. Now it is people, coming together, to defend their homes against the wealthy. When this form of organizing can make real gains and measurable success it is both transformative and empowering, giving a vision of what it would take to radically reshape the kind of social relationships we have been told for so long are infallible.

A movement is not just made out of the support of individual people’s cases, but by the ability to unite those cases together into a campaign that changes the conditions of the world. As we find commonalities between them we can create the kind of community that has the ability to continue defending itself long after individual cases have been completed. These difficult situations reveal the deeper underlying forces at work and suggest strategic ways forward that can act as the seeds of a new type of neighborhood, and if we can stick with them they can blossom as the movement continues to emerge.


(1). Wright, Kai. “84 Percent of San Francisco Foreclosures Fraudulent -- Why are Bankers Still Getting Away With Crimes?” Alternet. February 19th, 2012.

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