FLORIDA BAR ORDERS LAWYERS TO DISCLOSE FAULTY PAPERWORK

MOST POPULAR ARTICLES

COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE

Lawyers obligated to disclose faulty foreclosure paperwork

By Gary Blankenship
Senior Editor

Lawyers representing banks and other mortgage service companies must tell the courts if they know of paperwork problems in their clients’ foreclosure cases, according to the Bar’s Professional Ethics Committee.

The committee, at its June 24 meeting during the Bar’s Annual Convention, voted 20-6 to uphold a Bar staff opinion which advised a lawyer representing a bank in thousands of foreclosure cases.

According to the attorney, the bank used two employees to prepare and review necessary affidavits needed for the foreclosures. One employee always verified the figures in the necessary affidavits and signed the necessary paperwork in the presence of a notary. The second signer relied on a conscientious assistant to verify the figures before signing that he had personally reviewed the figures. Also, those signatures were sometimes notarized when the signer was not present, as required by law. The second signer’s practices extended back for 20 years.

The lawyer wanted to know if the court had to be informed of those irregularities, since it was unlikely to change the outcome of any pending case. He also inquired whether it made any difference if the case was pending or closed, the stage of pending cases, or that the second signer had reverified information in the improperly notarized forms.

A Bar staff opinion held it makes no difference whether the case was open or closed or what stage an open case is at in terms of the lawyer’s duty. The opinion said that under Rule 4-3.3 (Candor Toward the Tribunal), the improperly prepared affidavits constitute false evidence, and the lawyer has a duty to disclose that to the courts.

Other rules must also be considered, the opinion said, including Rule 4-1.2(d) which prohibits assisting a client in criminal or fraudulent conduct, Rule 4-3.4(b) which prohibits a lawyer from fabricating evidence or assisting a witness who offers false testimony, Rule 4-8.4(a) which prohibits violating the Rules of Professional Conduct or assisting another to do so, Rule 4-8.4(c) which bars an attorney from conduct that constitutes dishonesty, fraud, deceit, or misrepresentation, and Rule 4-8.4(d) which prohibits a lawyer from conduct that is prejudicial to the administration of justice.

The staff opinion concluded that, “the inquiring attorney first should attempt to have the client correct the improperly verified and notarized affidavits. The inquiring attorney should advise the client that if the client fails to correct the affidavits, then the inquiring attorney will have to withdraw and will have to reveal the truth to the court. If the client refuses to take the required corrective action, the inquiring attorney will have to reveal the fact that there has been an improperly verified and notarized affidavit filed in each of these cases, whether they are pending or already closed. The inquiring attorney also will have to move to withdraw from further representation of the client in pending cases, where the client refuses to correct the affidavits, while making as minimal a disclosure as necessary when doing so.”

The committee discussed changing the staff opinion to say the lawyer would have a duty to disclose only if it would make a material difference in the case, but in the end left it unchanged.

“I strongly urge against watering down this opinion,” said committee member Ana Maria Martinez. “I understand the practical problem, but we can’t approve lying for 20 years.”

Added committee member Deborah A’Hearn: “Anything other than affirming the opinion, as is, is the functional equivalent of suborning perjury. We shouldn’t make allowances regardless of the practical problems. It is never OK to lie.”

Committee member Tim Chinaris voted to affirm the staff opinion, but said it’s questionable whether it affects foreclosures done years ago.

“Our rule refers to the requirement that when there’s been false evidence submitted to the court and you know about it, you have a duty to take reasonable remedial measures,” he said after the meeting.

“What do you do with an 18-year-old case when no one is around, the judge is gone, the parties are gone? Is there any remedial measure at that point? Is there any way to reopen the case?” he added. “According to the people who do that work, unless a very narrow standard is met, it’s a final judgment. If you have to take a reasonable remedial measure, but there’s nothing that can be done, there is no remedial measure.”

At the same time, it’s clear that lawyers have a duty under Bar rules to act, or they could be subject to disciplinary action, Chinaris said, noting that Bar rules in this area are stricter than the ABA model rules. ABA rules specify that the duty to disclose ends when the proceeding ends, while the Bar extends it past the end of the proceeding and leaves it open-ended.

“I thought the [staff] opinion assumed a little too much and went a little too far,” said committee member D. Culver “Skip” Smith, who voted against the final motion.

He noted the committee didn’t have any of the affidavits in question, and it was unclear whether anything was wrong with them other than the affidavit that the signer had personal knowledge of the information in the affidavit.

“It seems to me the opinion quickly assumed this qualified as ‘false evidence,’” Smith said. “The rule talks about a lawyer making a false statement of law or fact. This is not what this is. The staff opinion just assumed it should be false evidence, even if the only thing untrue in it was a notarization statement.”

He also questioned what he said was the assumption in the staff opinion that such a problem would be “material,” adding, “I think the lawyer should make that decision rather than us.”

The question could be appealed to the Bar Board of Governors but has not been as this News went to press.

The issue of foreclosure paperwork and shortcuts taken in preparing it is a sensitive one in Florida, where hundreds of thousands of foreclosure cases are pending in court.

The Legislature granted extra funding last year and the courts worked to create programs to handle the extra work, but the effort was hindered when faulty paperwork came to light. That included the use of “robosigners” who signed off on, in some cases, thousands of affidavits without personally verifying the information and improper notarizations, as well as errors in paperwork.

Revelations of those problems caused banks and mortgage companies to drop many cases they had filed and slowed down the filing of new cases. At the same time, it led to more challenges to foreclosures in courts, which lengthened the time it takes for the courts to process those cases.

About these ads

10 Responses

  1. This is shocking. The Florida bar is insisting that lawyers not use fraudulent documents. What will they think of next – that lawyers can’t lie in court.

  2. Update article: Sara Portlock Star Ledger 6/27/2011 7:30 am

    A SUDDEN HALT

    The foreclosure process came to a halt on Dec. 20, when Chief Justice Stuart Rabner announced an initiative to address fears homeowners were unnecessarily put into foreclosure and judges had inadvertently “rubber-stamped” files that had inaccurate or inadequate paperwork.

    March, six of the country’s biggest financial institutions — Bank of America, JP Morgan Chase, GMAC Mortgage, Citibank, OneWest Bank and Wells Fargo — agreed to submit extensive documentation of their foreclosure processes and outline any revisions they have made. A court-appointed special master, retired Superior Court Judge Richard Williams, is reviewing the material and will report on whether the banks have satisfied a number of changes.

    Rabner’s order also addressed the concern that employees of the lender or servicer had signed thousands of foreclosure claims without any personal knowledge of their contents, a process known as “robo-signing.” As of June 9, foreclosure paperwork for pending and future cases is required to include an affidavit certifying that either an employee of the lender or an employee of the lender’s servicer has personally reviewed the case and confirmed its accuracy.

    The court’s actions have slowed foreclosures in the state. And because there is no deadline for Williams to submit his findings, the storm can start at any point, advocates fear. There is one heartening fact, they said. Williams will issue his report regarding each bank as he finishes it rather than waiting, said court spokeswoman Winnie Comfort.

    NJ: Chief Justice Rabner’s order forcing robo-law firms and substitute ‘trustees’ to recertify that they were filing documents in accordance with NJ Rule 5-…Certification

    Residential Mortgage Foreclosure Pleading and Document Irregularities
    http://www.judiciary.state.nj.us/superior/press_release.htm – CachedDec 20, 2010 – New Jersey Chief Justice Stuart Rabner today announced a series of steps to protect the integrity of filings of foreclosures in New Jersey. …

  3. “While the filing of any of these documents must conform to the requirements of Rule 11, the submission of a proof of claim carries the
    additional burden of satisfying the false claim prohibition of 18 U.S.C. Section 152 and 3571. The prohibition applies both to the claimant and the ATTORNEY for the claimant. …

    Section 1523 provides that any person who “knowingly and fraudulently presents any false claim ….in a personal capacity or as or through an agent, proxy, or ATTORNEY… shall be fined…or imprisoned not more than five years, or both …28 USC Section 152(4).
    Section 3571 provides that individuals may be fined up to $250,000.00, and organizations may be fined up to $500,000.00 for violations of Section 152, and perhaps double monetary amount of the gain or losses sustained in certain circumstances. See 28 U.S.C. Section 3571 (b,c, and d)….
    While preparation of a proof of claim is not an art form, it also is not
    the equivalent of entering a raffle or a prize drawing…..
    Congress made it a crime to file a false proof of claim.”

    This obviously refers to a proof of claim in a bk case, but there are mirror statutes for other federal and also state jurisdictions.

  4. Here we go:

    http://mortgagemovies.blogspot.com/2011/07/justice-takes-holiday-kingcastmortgage.html

    TUESDAY, JULY 19, 2011

    Justice takes a Holiday: KingCast/Mortgage Movies writes Florida Ethics Professor and Bar Advisor Tim Chinaris, Esq. on NH Mortgage Fraud and “Linda Green” docs.

    Dear Professor Chinaris:

    Please review this situation with all of the earnestness at your command. As someone who has managed a title company and practiced law as a Deputy Attorney General and Federal and State litigator I am appalled at what strikes me as patently unethical behavior here in New England. Specifically the unabashed use of bogus “Linda Green” documents and Attorney Shawn Masterson testilying about the presence of some sort of legitimate original note and mortgage that have never been produced in the case, yet the Court by and through Judge Diane Nicolosi found a way to ignore all of these issues of proof and standing despite vigorous objection by a well-prepared pro se litigant…….

  5. OMG Neil you’re killing me…. I thought I was through with my ethics complaint but just as I was heading to the post office I saw this!!!!

    Tooooo rich my man. This way they can hate me all they want to but the facts are what they are and there is clearly a basis for me saying that Attorney Masterson and Judge Nicolosi have run afoul of their ethical obligations…

    Meanwhile I got some goodies for our community at large, just wait until you find out who my affiliate film makers are interviewing — when I say high end I mean HIGH END…… LOL……. certain major indie film festivals are already into it and waiting for the rough cut.

    And I also owe the community Rod Class on DC #2, “turn the cameras off!” —— But I’m just so busy……

    A new movie coming to film festivals on Mortgage Fraud features hi-end interviews.

    http://mortgagemovies.blogspot.com/2011/07/kingcastmortgage-movies-affiliated-film.html

    Peace,
    C

  6. No Punishment = Continued Misconduct
    Posted on July 19, 2011 by Mark Stopa Esq.

    http://www.stayinmyhome.com/blog/?p=1565

    In Maine, a group of drug dealers was caught distributing drugs to local middle schoolers. They confessed, yet the District Attorney declined to press charges, so the drug dealers returned to the school and passed out more drugs.

    In Kansas, police apprehender a serial killer, yet, despite his confession, decided to let him go free. Upon his release, he murdered 12 more women.

    In Florida, a man confessed to the arson of 14 homes. After law enforcement declined to take any action, the arsonist burned down another 16 houses.

    If these stories sound impossible to believe, they are – I made them up. But this one is perhaps just as disturbing, and it’s true … Banks Continue Robo-Signing.

    How can this be, you ask? Well, it’s simple (sickening, but simple). Banks admitted to robo-signing foreclosure documents on a widespread, systematic basis. But after they were never punished for that wrongdoing, they, like the drug dealer, murderer, or arsonist in my examples above, saw no reason to stop the fraudulent misconduct.

    Here’s the article. …

    NEW YORK/IMMOKALEE (Scot J. Paltrow) – America’s leading mortgage lenders vowed in March to end the dubious foreclosure practices that caused a bruising scandal last year.

    But a Reuters investigation finds that many are still taking the same shortcuts they promised to shun, from sketchy paperwork to the use of “robo-signers.”

    In its effort to seize the two-bedroom ranch house of 87-year-old Margery Gunter in this down-on-its-luck Florida town, OneWest Bank recently filed a court document that appears riddled with discrepancies. Mrs. Gunter, who has lived in the house for 40 years and gets around with the aid of a walker, stopped paying her loan back in 2009, her lawyer concedes. To foreclose, the bank submitted to the Collier County clerk’s office on March 3 a “mortgage assignment,” a document essential to proving who owns a mortgage once the original lender sells it off.

    But OneWest’s paperwork is problematic. Among the snags: state law permits lenders to file to foreclose only if they already legally own a mortgage. Yet the key document establishing ownership wasn’t signed and officially recorded until months after OneWest filed to foreclose on Mrs. Gunter. OneWest declined to comment on the case.

    Reuters has found that some of the biggest U.S. banks and other “loan servicers” continue to file questionable foreclosure documents with courts and county clerks. They are using tactics that late last year triggered an outcry, multiple investigations and temporary moratoriums on foreclosures.

    In recent months, servicers have filed thousands of documents that appear to have been fabricated or improperly altered, or have sworn to false facts.

    Reuters also identified at least six “robo-signers,” individuals who in recent months have each signed thousands of mortgage assignments — legal documents which pinpoint ownership of a property. These same individuals have been identified — in depositions, court testimony or court rulings — as previously having signed vast numbers of foreclosure documents that they never read or checked.

    Among them: Christina Carter, an employee of Ocwen Loan Servicing of West Palm Beach, Florida, a “sub-servicer” which handles routine mortgage tasks for banks. Her signature — just two “C”s — has appeared on thousands of mortgage assignments and other documents this year.

    In a case involving a foreclosure by HSBC Bank USA, a New York state court judge this month called Carter a “known robo-signer” and said he’d found multiple variations of her two-letter signature on documents, raising questions about whether others were using her name. That and other red flags prompted the judge to take the extraordinary step of threatening to sanction HSBC’s chief executive officer.

    In a phone interview, Carter acknowledged signing large numbers of mortgage assignments this year, but said they all were legally done. To her knowledge, she added, no one else used her name.

    ‘CUTTING CORNERS’

    One of the industry’s top representatives admits that the federal settlements haven’t put a stop to questionable practices.

    Some loan servicers “continue to cut corners,” said David Stevens, president of the Mortgage Bankers Association. Nearly all borrowers facing foreclosure are delinquent, he said, but “the real question is whether the servicer complied with all legal requirements.” The loss of a home is “the most critical time in a family’s life,” and if foreclosure paperwork is faulty homeowners should contest it. “Families should be using every opportunity they can to protect their rights.”

    Federal bank regulators signed settlements in March with 14 loan servicers — banks and other companies that perform tasks for mortgage investors such as collecting payments from homeowners and when necessary, filing to foreclose. The 14 firms promised further internal investigations, remediation for some who were harmed and a halt to the filing of false documents. All such behavior had stopped by the end of 2010, they said.

    Of these companies, Reuters has found at least five that in recent months have filed foreclosure documents of questionable validity: OneWest, Bank of America, HSBC Bank USA, Wells Fargo and GMAC Mortgage.

    So have half a dozen large servicers that weren’t party to the agreements, including Ocwen Financial Corp and units of Credit Suisse Group AG.

    Spokesmen for the banks and servicers named in this article said that they halted any wrongdoing after disclosures last autumn of robo-signing led them to revise their practices, and they denied filing false documents since then.

    In general, they said their foreclosure cases were legitimate, but for a small number of exceptions, and that criticism by defense lawyers and judges of some types of documentation is based on misinterpretation of the law.

    The persistence of the paperwork mess poses a dilemma for American policymakers and society at large.

    The vast majority of homeowners in foreclosure are in fact delinquent on their mortgage payments. Many bankers and judges view the issue as a technicality. Regardless of legal niceties, they say, people should pay up or lose the collateral on the loans — their houses and condos.

    Increasingly, though, courts are holding that the trusts suing to foreclose don’t actually own the mortgages. Judges have ruled that foreclosing based on flawed or missing evidence violates longstanding laws meant to protect all Americans’ property rights.

    In a landmark decision in January, the Massachusetts Supreme Judicial Court overturned a foreclosure because of a lack of proper documentation.

    “The holder of an assigned mortgage needs to take care to ensure that his legal paperwork is in order,” wrote Justice Robert Cordry in a concurring opinion. “Although there was no apparent actual unfairness here to the (homeowners), that is not the point. Foreclosure is a powerful act with significant consequences, and Massachusetts law has always required that it proceed strictly in accord with the statutes that govern it.”

    (U.S. Bank National Association, trustee, vs. Antonio Ibanez, 458 Mass. 637.)

    A THOUSAND QUESTIONS

    Reuters reviewed records of individual county clerk offices in five states — Florida, Massachusetts, New York, and North and South Carolina — with searchable online databases. Reuters also examined hundreds of documents from court case files, some obtained online and others provided by attorneys.

    The searches found more than 1,000 mortgage assignments that for multiple reasons appear questionable: promissory notes missing required endorsements or bearing faulty ones; and “complaints” (the legal documents that launch foreclosure suits) that appear to contain multiple incorrect facts.

    These are practices that the 14 banks and other loan servicers said had occurred only on a small scale and were halted more than six months ago.

    The settlements included the four largest banks in the United States — Bank of America Corp, Wells Fargo, JP Morgan Chase & Co, and Citigroup Inc. The other parties were lending units of Ally Financial Inc, HSBC Holdings PLC, MetLife Inc, PNC Financial Services Group Inc, SunTrust Banks Inc, U.S. Bancorp, Aurora Bank, EverBank, OneWest Bank and Sovereign Bank.

    The pacts were struck with the Office of the Comptroller of the Currency, the main regulator of national banks, as well as with the Federal Reserve, the Federal Deposit Insurance Corp. and the Office of Thrift Supervision.

    Some state and federal officials have called the settlements weak. Authorities are still working out financial penalties to be imposed on the 14 firms. The banks didn’t admit or deny wrongdoing, and many of the practices banned were previously illegal anyway, such as filing false affidavits and making false notarizations. And regulators left it to the banks to oversee their own internal investigations.

    The OCC confirmed it has received complaints that questionable practices continue. But spokesman Bryan Hubbard said the settlements “are intended to address many of the root causes of improper foreclosure actions,” thus preventing future harm.

    WAVE OF FORECLOSURES

    The collapse of the housing boom in late 2006 led to a wave of foreclosures. Federal Reserve data show that some 4.5 percent of U.S. mortgages are in foreclosure. In 2010, 2.5 million foreclosures were initiated, with a similar number expected this year.

    In the housing boom, lenders created millions of new mortgages, packaged them into pools, and securitized them rapidly for sale to investors in so-called mortgage-securities trusts.

    The agreements setting up the trusts, called “pooling and servicing agreements,” require that key documents, properly executed and endorsed, be turned over immediately for each mortgage when a trust is established. The two most important ones are a promissory note and mortgage assignment.

    A mortgage really has two parts. One is the actual mortgage (in some states called a “deed of trust”). Its purpose is to pledge the home as collateral for the loan. To transfer ownership of this collateral pledge, the seller must issue a document called a mortgage assignment. The other is the promissory note, which is the loan agreement itself. The homeowner signs it, promising to pay principal and interest.

    The Reuters examination turned up thousands of instances –more than 2,000 in Florida alone — involving recently filed mortgage assignments which ostensibly transferred mortgages to these trusts years after they were formed.

    The problem, according to Georgetown University law professor Adam Levitin, an expert on securitization: About 80 percent of all trust agreements provide that New York State law applies, and under New York law, any mortgage assignments made later than specified in the agreements would be void.

    Reuters has also uncovered problems with the other key document used in foreclosure cases, the promissory note.

    To foreclose, a trust, bank or mortgage finance giant such as Fannie Mae or Freddie Mac must possess the original “blue ink” signed promissory note. The crucial parts of the note are at the bottom — the endorsements, somewhat like those on the back of a check. The agreements establishing trusts require a proper chain of endorsements showing legal transfers of a note from the original lender, through any intermediary owners, and finally to the trust itself.

    Attorneys defending homeowners contend that improper endorsements are rife. Reuters obtained from public court records and defense attorneys more than 100 examples of notes that for various reasons appear to be improper.

    MYSTERY OF MARY ARTHUR

    One example: The attempt by Credit Suisse unit DLJ Mortgage Capital to foreclose on Mary Arthur of Dobbs Ferry, New York. Mrs. Arthur, 63 and legally blind, works part time as an assistant in a doctor’s office. Originally from Trinidad, Mrs. Arthur became delinquent on her $427,500 loan after her parents and sister died and she ran up debts traveling home for the funerals, according to her attorney, Linda Tirelli.

    The loan servicers, Select Portfolio Servicing of Salt Lake City, threatened to foreclose on DLJ’s behalf. Mrs. Arthur arranged with Select Portfolio a trial mortgage modification to see if she could keep up with the reduced payments. She made the payments but, Tirelli said, Select Portfolio filed to foreclose.

    DLJ filed in two separate court cases what it said were authentic copies of Mrs. Arthur’s promissory note. Because they were supposed to be copies of the same document, the endorsements filed with both courts should be identical.

    But a look at the documents shows that the version filed in state court and the one filed in bankruptcy court had completely different endorsements on them — naming different owner banks and signed by different people. Tirelli said she has brought this to the attention of the bankruptcy judge and is awaiting a ruling.

    Credit Suisse, which owns both DLJ Mortgage Capital and Select Portfolio Servicing, declined to comment, as did Casey Howard, the lawyer representing DLJ in the bankruptcy case.

    Bank of America, meanwhile, is coming under fire from a New York federal bankruptcy judge.

    Last Tuesday, Judge Robert Drain ordered an investigation involving a foreclosure case brought by the bank. Two earlier copies of a promissory note filed in court had lacked any endorsement, but then one appeared on the note when bank lawyers produced the original.

    The judge said the sudden appearance of an endorsement, and his own close look at it, raised questions about whether it had been added illegally to make the note look legitimate.

    It “raises a sufficiently serious issue as to when and more importantly by whom this note was endorsed,” the judge said.

    A Bank of America spokesman said the bank will produce evidence that “will demonstrate to the court’s satisfaction that the endorsement is proper.”

    MISSING SIGNATURES

    These banks aren’t alone in filing doubtful documents. Reuters found cases in which Wells Fargo didn’t obtain mortgage assignments — and hence the right to foreclose — until well after it had filed foreclosure cases.

    Wells Fargo, as a trustee, has moved to foreclose on homeowners who have mortgages from now-defunct Option One Mortgage Corp. In June, a bankruptcy appellate panel of the federal Ninth Circuit Court of Appeals overturned a decision to allow Wells Fargo to foreclose on an Option One mortgage. It said that there was no evidence that the note and mortgage had ever been turned over to Wells Fargo as trustee.

    In court files of Florida foreclosure cases by Wells Fargo on Option One mortgages, none of the promissory notes filed as exhibits in 10 cases found by Reuters had any endorsements on them.

    A Wells Fargo spokeswoman said it is possible that proper endorsements exist but were omitted from the copies of the promissory notes filed in court.

    In other cases reviewed by Reuters, Wells Fargo and GMAC Mortgage, a unit of Ally Financial, this year assigned mortgages from defunct lender New Century Mortgage Corp., which went under in 2007. Securitization lawyers say it is technically impossible for a defunct company to directly assign a mortgage over to another owner.

    Mark Stopa Esq.

    http://www.stayinmyhome.com

  7. Ocwen comes to mind!

  8. That’ll be the day…

  9. Neil, I think someone out there is messing with your site. I was re-directed to all sorts of sites this morning…but was able to get through via one of your other links versus the main one.

    Hmmm…You must be on someone’s Nerves!!!

    Good job…keep up the good work:)

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Follow

Get every new post delivered to your Inbox.

Join 3,323 other followers

%d bloggers like this: