Kelly Harpster, formerly a young brainiac associate from Davis Wright Tremaine, my alma mater, who left to make her mark on the Portland legal scene, is coming along just fine, thank you. Attached here is her legal memo in support of a Motion for a Temporary Restraining Order (“TRO”) against Bank of America and ReconTrust, its wholly owned foreclosure arm. Attached here is the Order of Oregon Federal Judge Anna Brown, granting the motion on February 23, 2011. What is remarkable – and perhaps somewhat telling – is that Judge Brown issued her 22-page memorandum opinion the same afternoon she granted the motion.
There are several object lessons in such cases as Kelly’s when seeking extraordinary relief against Big Banks. Here are a few:
Choose your battles: Don’t bring a claim if you don’t believe you can win. The bank has more money than you. They will fight as hard on losing cases as on winning cases. Why? Because they want to send a message that they take all cases seriously, and that there is no such thing as an “easy” case. So, if you’re going to climb into the ring with the Big Boys, you’d better be prepared to deliver a knockout punch. Besides, filing a weak or poorly prepared case does no one a favor if you set bad precedent for the little guy.
Go out of your way to notify all bank defendants before filing the TRO. Even if you have a great case, moving too fast can result in a denial of the TRO. Most judges strive to make sure that all defendants, including Big Banks, have a full opportunity to be heard.
Have a good paper trail before filing the TRO. The movant’s supporting memorandum should show that the lawyer has done their homework and that the borrower has clean hands. The events leading up to the TRO should also establish that the borrower and their attorney walked the extra mile with the bank to resolve the matter- the TRO was a “last resort.”
What is a “good case”? It is one that has an “Oh my God!” element. As in “Oh my God! I can’t believe the bank did that!!” In less hyperbolic terms, the equities should weigh heavily in your client’s favor. Equally important is that there must be a significant risk of irreparable injury if the court does not grant the TRO.
Kelly’s work in this case is a shining example of excellent lawyering. We wish her and her client the best.
– PCQ
