Of Victims, Villains and Fairy Godmothers: Regnant Tales of Predatory Lending

Abstract

The subprime mortgage crisis has exposed a system of predatory and irresponsible lending on a scale we are only beginning to comprehend. Those initially harmed in this crisis - the canaries in the coal mine - were largely low-income people of color. As the crisis has unfolded, the potential solutions available to such borrowers seem to privilege one kind of legal story over all others: the story of the poor person as a victim in need of rescuing.

In order to win, therefore, lawyers who represent these clients often fall back on a default narrative about their clients as unwitting or irresponsible victims in high-stakes, crisis-driven stories that take place in the winner-take-all context of litigation. These narratives begin at the moment of crisis, and not at any time before. In addition, these narratives do not take the long view of this crisis or its effects. As such, these stories reinforce the status quo, by focusing attention on the victims' bad choices and unscrupulous lenders, cabining the particular crisis as an unfortunate confluence of events rather than a part of the larger picture of a system that reinforces poverty.

But it does not have to be that way. Looking through the lens of narrative theory, my paper constructs counter-stories about those who find themselves faced with home foreclosure: stories that envision the individual clients' broader context, and their agency within that context; stories that imagine the clients' ability to look and plan ahead. I perform this analysis by suggesting that these situations present lawyers with the opportunity to tell many different - competing, alternative, serial - but equally good stories. The choices about which of those stories to tell and how to tell them are complex and nuanced, and dependent on multiple variables that need to be weighed by both the lawyer and the client.

The piece concludes by suggesting that a lawyering theory that is open to this multiplicity of stories - and does not privilege one among them - contributes to constructing lawyering models that empower all kinds of client narratives. This approach thus allows those who would otherwise assume victim roles in adversarial narratives to contribute in constructing narratives that do not necessarily involve them having to be rescued. And it helps lawyers see their power and responsibility to construct these stories collaboratively with their clients, and thus to move the law in a direction that recognizes the clients as something other than victims.

Keywords: mortgage, predatory lending, subprime, narrative, storytelling, stories, lawyer-client, poverty law, consumer