Soldier wins preliminary fight with bank over foreclosure procedural abuse

James Hurley sued Deutsche Bank Trust Company and others, after they foreclosed on his home while he was on active duty in Iraq. The Bank had secured the foreclosure by filing a false affidavit attesting to the court that Hurley was not in the military. He sued for intentional infliction of emotional distress and alleged violations of the Servicemembers' Civil Relief Act. After fighting the suit in Federal Court for more than two years, including multiple dispositive and non-dispositive motions, and changing the venue from the Eastern District of Michigan to the Western District, the Defendants sought to enforce a mandatory arbitration clause in the mortgage contract. The Court held that the Defendants had waived their right to arbitration by failing to raise the issue earlier and by taking actions to actively litigate the claim which had caused the serviceman actual prejudice through delay and expense. It also noted that the Defendants did not seek this relief until after the Court issued an opinion with which the Defendants did not agree.