Foreclosure-Gate: When Robosigners Attack!

12-12-2010 • Ritholtz.com

This is likely to be a terrible, terrible idea. For those of you who are not attorneys, I need to point out a few things out about Libel and Slander laws in the United States. These are Constitutional issues, as the First Amendment protects speech, opinion, arguments, viewpoints, etc. In these cases, (capital “T”) Truth is an absolute defense. So if any defendant can demonstrate that the damaging statements were indeed, accurate, they win. This case turns on the bizarre claim that the term robo-signer so libels the plaintiffs that they are entitled to damages. Given that Truth is a defense, the defendant will prevail if they can demonstrate Nationwide’s approach was robotic. Not literally machines doing the work, but any showing of assembly line manufacturing, for profit, of a streamlined document production that failed to review the documents, evaluate them, analyze the contents should qualify. Here’s where things get very very interesting: In civil litigation, the discovery process provides lots of opportunities for a defendant to gather information related to the accusations to prove they are true. This is a very broad standard, and it means nearly anything relevant is fair game. Depositions of senior executives, the firm’s accounting and records, balance sheets, low level employees are all legitimate aspects of pre-trial discovery. Why any private firm would subject themselves to this degree of scrutiny is quite baffling to me.