Should Foreclosure Attorneys Like Stern Be Subject to Bar Complaints and Lawsuits?

I have been receiving an increasing amount of mail and comments about whether foreclosure mills or foreclosure firms should be subject to bar discipline and whether they could be sued. The issue is complex. Here is my take—-

If the lawyer is party to fabrication of documents, forgery, and subordination of perjury (knowingly proffering a witness whose testimony is known to be false), then the answer is yes. Bar discipline and civil liability would most probably apply, assuming you could prove your case. The Bar grievance must be viewed separate from the civil liability case. It is possible that if the bar finds that a violation of the ethical and disciplinary rules apply, there might be restitution but not likely. It is generally the client that would be entitled to restitution.

You must also realize that it is a violation of the Bar rules and in Florida it is a crime to threaten criminal action or quasi criminal action (bar violation) in order to gain a civil advantage. Thus the making of a threat will put you in a worse position than your adversary even if you are right, so don’t do it. Check with a licensed attorney before you even consider action against a lawyer. And no, there is no such thing as a malpractice action by a non client. And malpractice actions are extremely difficult to prove and win.

In a malpractice action you must of course prove that the lawyer clearly made an error that goes beyond a reasonable judgment call that simply turned out wrong. The hard part is actually proving your damages. In order to do that you must prove that you suffered damages as a result of the lawyers’ malpractice and not as a result of simply a negative ruling and financial damages from the result from that ruling — AND you must prove that the ruling would have been otherwise if the lawyer had not committed the error. This has proved to be a nearly impossible threshold for malpractice.

But before I leave that subject, let me say that if a homeowner actually wins their case, the situation might be different. Any attorney in bankruptcy, general litigation or otherwise who gave advice to the homeowner that there was nothing that could be done for them where it is now known that the wrongful foreclosure has been proven, then that attorney might have significant exposure which is why my firm does risk analysis for domestic law, bankruptcy law and other cases.

Lawyers who have not researched securitization should neither be giving advice nor representing homeowners. It might seem counter intuitive. But if the homeowner vacated their home or entered into an oppressive modification or settlement agreement as a result of bad advice from an attorney ignorant of the current state of the law on wrongful foreclosure, there are significant damages.

For the most part, it is unlikely that most attorneys who represent the banks would be subject to discipline or liability. This comes down to the age old question of tainting the lawyer with the crimes of his client. Everyone is entitled and indeed required to hire a lawyer if they are a corporate entity. The fact that some lawyers are willing to represent the interests of the banks to the best of their ability does not mean they agree that their clients are good guys. I personally have represented parties I didn’t like. It just goes with the territory.

30 Responses

  1. Yes they should be held accountable as should Attorney Andrew Harmon from Harmon Law Offices in MA who was on the Board of Directors of David Stern. Karma is a bitch and you have met your match because we have proof of everything illegal and unethical and proof of your knowledge and you Dereliction of Duty

  2. Neil, I enjoyed your well-reasoned discussion about whether foreclosure defendants should attack plaintiffs’ attorneys through bar complaints. While I agree with your considerations, I want to add my own non-lawyer opinions to them.

    1. Foreclosure defendants or their attorneys should aggresively demand of the court sanctions against the attorney and plaintiff for failing to come to court properly prepared for the case. These foreclosure cases seem to drag on forever, so the plaintiffs have no shortage of time to decide how to get the note into the plaintiff’s hands or name before filing the foreclosure case, and showing it to the plaintiff attorney so that attorney has no question that the note exists and all the proof necessary that if it doesn’t exist the plaintiff met the UCC requirements for enforcing a lost or destroyed note, and verifying that the note shows no evidence of forgery or counterfeiting, and that the chain of assignments seems intact and proper. Every motion to dismiss for lack of standing should accompany a motion for sanctions against the plaintiff and, if justified, a notice of bar complaint against the plaintiff’s attorney. If more foreclosure defenders had the fortitude and ethical drive to do that, courts would have far less trouble with foreclosures.

    2. The problem of a case within a case sometimes seems obscure to foreclosure defendants contemplating a malpractice action against their attorney for failing to thwart an unjust foreclosure.

    a. Most foreclosure defense attorneys, including you, Neil, fail aggressively to examine the mortgage related documents for evidence of fraud and other torts, contract breaches, and legal errors, and make the causes of action into a negotiating tool PRIOR to litigation. That leads the attorney into attacking standing and using known-frivolous or failing arguments (like securitization issues) in an effort to delay the inevitable foreclosure.

    b. The court in a malpractice lawsuit will not punish the attorney for losing the case if the attorney had no chance of winning the case anyway, or if losing the case did not actually damage the plaintiff. This messy reality means the court must look into the winnability of the case within the malpractice case, and whether the attorney breached a duty to the client in that case within the case.

    3. If the foreclosure defendant loses the house because the defendant’s attorney putzed around with frivolous, failing arguments, failed to examine the mortgage comprehensively for evidence of underlying causes of action, or failed timely to raise those causes to the court before expiration of any related statute of limitations, AND a comprehensive mortgage examination proves causes of action existed at the time, THEN the foreclosure victim has a very good malpractice claim AND sound basis for bar complaints against the attorney. The reason: the victim can prove the damage (loss of house, destruction of credit for 10 years), prove the existence of causes of action, prove the associated breach of duty to raise the cause in a cross-claim or counter-claim, and prove the negligence (a person who claims expertise in law ought to know better than to neglect such a responsibility).

    For the above reasons EVERY mortgage victim should get a comprehensive examination done on all the mortgage-related documents, whether or not in foreclosure, even after having lost the house to foreclosure. The examination can prove causes of action that the lawyer did not present to the court. That means two things:

    1. The foreclosure victim may have a valid claim for damages against the lender or lender’s agents (like the mortgage broker or appraiser) for the injury in the loan itself – the borrower got fooled into taking a loan the broker knew the borrower could not repay, or for more than the value of the mortgaged property.

    2. The foreclsoure victim may have a valid legal malpractice claim for damages against the foreclosure defense attorney for losing the house becasue the attorney did not raise those issues during the foreclosure litigation as a means of getting the court to declare the mortgage void, or awarding damages to the borrower for the injury, or ordering an offset from the amount the borrower owes.

    Anybody who wants details on the potentially vast benefits of a comprehensive mortgage examination, or how or where to get it may call me for a free discussion. I sell nothing, charge no money for strategic guidance, give no legal advice.

    Bob Hurt. 727 669 5511. Email: http://fe.gd/IlE

  3. FYI: we have had a lawyer for the party being sued, Ocwen take a copy of the note and put it in his company, a company of one, HIM, Mathias Hunoval of Charlotte, NC…Hmm

  4. My comment on this: if they followed the rules we would all still be in our homes, or most of us at least. If you cannot believe the paperwork and they use the rules to twist you in the wind, the problems are much more complex.

  5. my father would say “given em enough rope and they hang themselves”.
    another way of saying Karma is a bitch.

  6. it boils down to collusive effort to steal real property and split the profit of illegal gains.aka unjust enrichment. proving it by suing everydody is quite a task. elexquistor, can you how to on that – depends how the case is (man) handled along the very slow turning wheel of justice, we are all baby stepping along doing our best little soldiers of love here.
    Duty to client and fiduciary duty, agree with poster Beth, can not be dodged because as a paying client or secondary market participant we have a right to rely on the professional performing due diligence and due care as a basic standard of practice. case law backs this and it is an attorneys public duty, case law to back that too.

  7. I Know Neidermeyer I know about the ol boys club, I live in AZ,
    but im not suing Stern, I only wanted my money back initially. ive had dealings with the BAR you should see the responses, im shocked. however, I met my burden of proff ta da! the motion to dismiss was denied. let the best man win. onward. you know there are folks that decide its not worth the fight, I say heck yes it is, its worse to sit back and let the wrongs stand, because, well just because its wrong. :and” if the professional charges 200 to pick a number per hour they had better be worth it.

  8. @JG – Well, now you seem to be asking a ‘how to’ question that belongs in the previous topic about notes on practice.

    To answer your question, if you play ‘dumb’ enough you can use opposing counsel hubris to have them pull their own rug out from under their feet. When you ask for ‘all documents relating to the physical transfer or legal possession of the Subject Note’, you’ll likely have to follow up with a motion to compel after closely following the rules (e.g. log of contact with opposing counsel regarding issues and extensions in CA) and cut them no slack. Throw in an admission for them to deny that they cannot provide any such documents. Then a few weeks before discovery closes request any additional documents they have found since their response to your previous request. Now you have them set up such that if they present the documents at trial they are denied due to their perjury.

    You will likely need to use a discovery practice guide for case law reference to deal with their objections that vary by state / fed. For each junk objection you need statute and case law, and so your motions to compel can use a lot of paper and toner. If you have done it right you will go thru several reams of paper.

    This is a succinct description, and may need re-reading. The object is to use a variety of discovery tools to box them in and prevent them from using ‘just found’ documents at trial. Do the same for the documents in common business records reflecting a purchase or sale of the Subject Loan.

    IANAL, but I watch Suits on HULU.

  9. elex – vanity post? “no time to dicker on sue the mills’? You lost me.
    I’ve never mentioned suing anyone for whatever he might sue a mill about (although I have posited that MERS is liable for robo-signing done in its name). What I said yesterday is that if we don’t know the rules of evidence, we are in trouble, and that’s a fact I stand by. I didn’t profess to know them (I actually dislike them since they are so technical), but I know enough about them and the rams of not knowing them and being prepared. And I don’t consider it vain to inject that trial exhibits must be provided to one’s opponent by a time certain prior to trial since Neil didn’t mention that (which I actually found odd since he was on the subject of trial statements and trial exhibits). The law actually doesn’t cotton to surprises. How would you like to go to trial and see the other guy’s “evidence” then and there for the first time? How is getting it out that trial exhibits must be handed over prior to trial a waste of time, pray tell?
    And speaking of evidence, I have asked Neil five times to
    address the “how to” of getting evidence which is singularly in the possession of the other guy because clearly it’s critical and we need it. Well, I guess I’ll give you (or anyone) some more fodder: a litigant has an obligation pursuant to rule 26 something to give its opponent anything which supports its position and is being relied on for its claim (records, instruments, etc) without a request in discovery. As far as I can tell – as a lay person – this is a rule being overlooked entirely in homeowner litigation (though an opponent who has not proffered this info will likely make at least a lame-duck defense for not proferring). Imo if a litigant has not complied with that rule and has further avoided discovery, it shouldn’t in fact be allowed to rely on that stuff at trial and a motion in limine (to exclude it) should be granted or, as I think (only) Neil suggested, the trial date needs to be moved to give one the opportunity to digest the trial exhibits if not to engage in discovery relevant to those exhibits.
    .
    .

  10. Spot on…the bar is a good ole’ boys club. They have shit on and wiped their asses with the Constitution and the rule of law, in most cases. Very few have the guts to stand tall and do the right thing AND obey the law! Well said! IMHO

  11. I’m just saying that the bar is not a legal requirement , it has inserted itself into licensing attorneys ,, it’s THEIR club .. and it shouldn’t be that way … it isn’t a good idea to turn over the entire legal system to them … everyone that matters in the courtroom (both attorneys and the judge) belongs to the same club ,, and their agenda goes forward … that’s what’s driving the blindness on the part of judges ,, they don’t see the lack of evidence in the banks cases because that’s in the best interest of the bar (and the politicians who are generally also lawyers share the same interests),,, have the cases slide on through and collect the money… since the banks have the big money the bar is on the banks side … I certainly can’t compete moneywise with a bank.

    On a national level we have the bar “grading” judges that are being considered for the Supreme Court (and state/county courts) ,, that’s how we get brainiacs like Sotamayor and Kagan getting stellar reviews BECAUSE they think the constitution ,,, OUR LAWS ,, are worth less than toilet paper.. that’s why we have Roberts ,, the elites (call them the 0.01%ers if you want) want judges they can count on ,,, Roberts isn’t a Kagan … but he is easily exploited with his homosexuality and the illegal adoptions in his background ,,, he IS stupid enough to think that it isn’t already common knowledge and he is perfectly willing to fully re-write OBAMACARE to “make” it legal to please the elites.

    Deborah Wynn ,, sure the burden of proof required is less ,, they insert themselves into what in this case with Stern IS a multi-thousand count felony case and they let him go with a minor penalty and he keeps his fees for facilitating the thefts… yeah ,, sucks to be him on his yacht with a half dozen different hookers brought in each night while he’s at the yacht club at paradise island in the Bahamas.. try doing something about it ,, the inoculation has already been administered by the bar, HIS FRIENDS LOOKING OUT FOR THE PROFESSION. Find me one lawyer who isn’t fearful OF THE BAR to go sue the bastard… You’re not going to find one detective who will arrest him despite the mountains of evidence,, you won’t even find one desk clerk who will let you file a complaint.

    LETTING A PRIVATE CLUB SHORT CIRCUIT THE LEGAL SYSTEM WHEN IT’S MEMBERS COMMIT FELONIES IS REASON ENOUGH TO BAN THE BAR… Imagine if I started a “car club” and every time a member got pulled over for running 120mph on the interstate all they had to do was whip out their cell phone , speed dial the club secretary and she would inform the cop to let you go , she will open a file on the incident and give you a talking to … PRETTY F**KING SWEET DEAL!!!

    Maybe Stern will get an e:mail informing him of the penalty … while he’s on the way to Grand Cayman to visit his money. Hopefully the Chinese investors he robbed will have a talk with him sometime soon.

  12. Neidermeyer re the BAR
    Actually not quite
    They do not have to meet the burden of proof we do, we are on our own im sure you get that.

  13. Unfortunately, there are many attorneys who are not very good at their jobs and many who just do not do their jobs. Finding a good atty for foreclosure defense is even more difficult. Neidermeyer, I agree. There should just be a way to get the crooks arrested. Back in the day (an this is really unbelievable) I lived in CA and during the eighties, the CA Bar went belly up because THE ATTYS DID NOT PAY THEIR BAR DUES!! After that, it came back up, but you gotta be kidding me!!

  14. And please re definitiin of a ” good attorney” i thought i had one. Looong story.

  15. Now i can show the fraud from their own court actions following the embezzelment of my home.
    Originally thus infor was un disclosed and not known at the time.

  16. Yes i get that elex
    Would be a separate suit in state court. Was thinking i might re visit the matter.
    My appeal is frim district court stste kf AZ.

  17. @D-W – If I understood your post it probably belongs in the prior topic because it is a ‘how to’ question. From my understanding as a non-attorney in CA, an appeal usually stops all activity in the trial court, except UD. You have to request special stay in trial court to address it. This is one of those areas where a good attorney is worth the $200+ / hr to hire. Other states may vary.

  18. Neil ,

    You are looking at this as a lawyer who enjoys THE PROTECTION of the BAR , The BAR is nothing but a labor union for lawyers , it is not necessary , it’s purpose is the same as any other labor union , to restrict access to the profession by controlling licensing and to protect the members from liability. Lawyers SHOULD GO TO JAIL FOR CRIMINAL ACTS That’s it END OF STORY ,,, instead their CRIMINAL ACTS ARE SIDETRACKED TO THE BAR WHERE THEY ARE “DISCIPLINED” by having a meaningless token fine applied. Anyone should be able to go to the local police station and actually have the desk officer take your complaint and act on it ,, just as if you had a roofing contractor take your money and never show up … or steal from you by substituting cheaper materials than contracted for. We’re talking about felonies here ,, felonies which enable grand theft.

    I have property in Illinois , near Carthage … this is where a young Abraham Lincoln defended his first case , a murder case. Lincoln was not a bar member ,,, back then that abusive system had not yet been implemented… anyone that had studied the law could practice.

    The BAR needs to be de-legitimized ,, made wholly voluntary ,, like the AMA is … and their function as gatekeeper to the profession needs to be taken away and replaced by a simple government run examination panel ,, same as you would get a Series 6 license for the insurance industry , a Series 7 for securities or how you would take an exam and a check ride with a FAA examiner to get your Instrument license.

    Look at how the bar was used to attack our friend Matt Weidner for purely political reasons… he did nothing wrong.

    The law is simple and easily understandable , it is made complex by lawyers and judges (all BAR members) to enhance the value they add… by , in reality , removing the self-help option as a winning path.

  19. Neil,

    If one checks places like Brock & Scott, they are debt collectors, who fall under my earlier post FDCPA, you must know that! Paperwork from them is forged and made up right in the office and they misrepresent who they are working for. I am in the process of looking for a handwriting expert to validate what I know (looking at the papers side-by-side) I suspect Jeremy Wilkins is fling the stuff in and he is on the list of robo-signers. That is not only a criminal offense, if he gets caught he will never work as a lawyer again…and we are working to those ends.

  20. Be mindful
    Everyone is fighying their own personal battles too,,

  21. What is your position on this and what should i do ???

    Sent from my iPhone

  22. The answer to that question Neil: Yes, Yes and Yes!

    And elexquisitor; one is unintentionally doing what you say, the other quite the opposite. Been here for years, she has no skin in the game, lonely, angry, abusive and hateful. Her intent is attention and adulation. There is zero information about where money has gone, bond info, authority designations, fraud research, jurisdiction, etc…all copy and pasting, taking others work and paraphrasing it, calling it like it’s hers…and telling us the sky is falling. Disgraceful Neil allows it, honestly.

  23. There may be some attorneys working for the banks. When one approaches them for foreclosure defense on account of defect in securitization or break in the title chain, then they tell the client for mortgage modification so that the bank could resolve problems of not having loan documents to foreclose.

    Beware of hiring foreclosure defense attorney as some may be out right crooks working for the bank. Some of these kinds may be found in “foreclosure clinics”.

  24. Cant sue everbody
    But find your necvessary and indispensible parties and joinder
    Know where you induvidual case strenghts lie snd wesknesses and learn to play legal chess.
    Not fun but it can be done i still believe.

    Not legal advice just my lsy opinion.

  25. Elexquistor
    Iike your contributions but also thst of jg and christine
    Think about this :
    The atty for FM in my case filed a unlawful detainer in a court of law for the party (ies) im up on appeal against
    I have a judgement against me
    do you think under scrutiny it would survive as being in fact legal?

  26. I believe that these firms can be sued as it is that firm that is providing the forgeries they have created themselves with the cover of MERS. I don’t believe that an attorney supplying to court with false information cannot be sued. You got once source that providing thousands of forgeries and instead of working each forgery separately, it would seem to make sense to gather them all up into one and sue the creator of the fraudulent documents. The law does not give a pass to lawyer who are committing felonies!

    I believe the courts and the opposing attorney have a duty to forward criminal activity to law enforcement!

  27. Senior JPMorgan Trader Scrutinized In Currency Probe: Report

    Reuters | Posted: 10/14/2013 5:24 pm EDT

    Investigations into the $5 trillion-a-day market have broadened, with authorities in Switzerland and Britain looking into whether traders at banks sought to manipulate benchmark foreign currency rates.

  28. “…to warriors like myself in the midst of battle”

    Everyone here is in the battle here. What’s your problem? Misanthropy is a serious character flaw. If you don’t like it is here, get yourself another blog. Toad.

  29. I understand that you have to be the client of an attorney to sue that attorney for malpractice, however, I think that in deed of trust states where there is a trustee (who is ultimately substituted for the foreclosure action) there is an argument to be made that the trustee had a fiduciary duty to the homeowner. In Maryland there is case law on this topic in foreclosure cases that the trustee has a duty to not just the bank but to the homeowner. 99% of the substitute trustees are attorneys. Once you’ve established that the substitute trustee has a fiduciary obligation to the homeowner, I think that as long as the homeowner can prove the wrongdoing by the sub trustee, there may be a shot for the homeowner to sue for malpractice. Especially if a pattern can be shown. In Maryland the law firm of Shapiro and Burson were sued by their insurance company for robo signing. Foreclosure Mill attorney Thomas Dore was suspended 90 days (a slap on the wrist) for his robo-signing. The groundwork is being laid for these malpractice suites by homeowners against the foreclosure mill substitute trustees that have violated their fiduciary duty to the homeowner.

  30. @NG – can you move Christine’s and JohnGault vanity posts from the Notes on Practice thread to here? This is a great topic for their waste of time posts to warriors like myself in the midst of battle who have no time to dicker on ‘sue the mills’ when issues of title, discovery, and accounting are paramount to winning a case..

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

%d bloggers like this: