December 2012

This wave has been moving toward shore for a long time. For those of us who move in and out of foreclosure cases, as title counsel, as counsel for intervenors, as counsel for homeowners and interested parties, this swell was visible in the distance. I have always wondered how these firms can handle such a high volume of foreclosure cases with so few lawyers. As hard as the lawyers work, far too much appears delegated and automated.

Quality is the paramount issue. A lawyer's signature is, or at least should be, the certification of an item's quality, on top of the usual presumptions about truth and veracity imposed by rule. A pleading, letter, affidavit or any other item bearing counsel's signature must be correct, appropriate, and worthy of framing. Frankly, I paid far to much money to earn the privilege of signing my name to court documents to entrust it to others who may affix it to a deficient writing.

With Bank of America's announced freeze on foreclosures, nationwide, I wonder about the foreclosure mills, and the hundreds of lawyers that fan out throughout the state each day to conduct their sales. And there are the hundreds of processors (they rarely answer the phones, but they are there, trust me) who manage the pre-sale and post-sale processes. What is to become of them? Can they be bailed out?

I'm guessing they will have more time to focus on title, and generating new and more interesting title claims. C'mon folks, I'm waiting!

A New York state court has ordered that a plaintiff give over to the defendant specific authorization to access her Facebook and Myspace accounts. The court has ordered that she disclose both current content, archived content, and deleted content.

The defendant's motion requesting the disclosure was based on deposition testimony that was at odds with the public portions of the plaintiff's Facebook page. She alleged injuries that limited her to staying indoors. But her publicly posted pictures showed her smiling and out-and-about, and not in her home. Imagine that!

I love this decision, as a parent and a lawyer! I've been telling kids I know and coach, for years, that nothing is private, and every disclosure creates impressions and attitudes. At the office, my law clerks and paralegals search all social media for background on every lawyer and witness we deal with in a case. We've caught more than one witness sleeping at the wheel!

Today, the Washington Post reported that Bank of America has suspended foreclosures in 23 states, following the admission of a foreclosure processor that she signed thousands of affidavits without reading them. In deposition testimony given in Massachussetts, the employee admitted to signing over 7,000 items per month. She also admitted to mis-identifying herself as an employee of Bank of New York Mellon.

This puts us all in a delicate position with the Circuit Courts. I routinely proffer affidavits from various bank officers, particularly where I seek default judgment orders. I have always relied upon the bona fides and representations of the client when preparing their affidavits. It now appears necessary to ask for further verification of job title and authority, doesn't it?

Add this to the list, right after "prove to me that you are the true owner of the beneficial interest in the trust before I file suit in your name."

This September 27th article from the Daily Record struck a chord with me. Alternative fee arrangements are not new to me. They have been a topic of conversation in every firm I have been a part of for the last 20 years. For the most part, clients have been distrustful of alternate fee arrangements suggested by outside counsel. The unspoken suspicion was that the lawyer sought to "get over" on the client, and so the relationships continued to chug along on the basis of the billable hour.

Current economic pressures on our corporate and insurance clients now have the pressure for alternate fee arrangements flowing in the other direction. The trend now is for the sophisticated legal consumer to demand alternate fee arrangements. Whether the alternate arrangement is negotiated, or unilaterally imposed by the client, this article cites to the most important component of any fee arrangement---trust. Counsel must trust that he is being fairly valued, and paid for the value he provides to the client. The client must trust that its work is receiving the attention and care it deserves, and that the work is offered at a fair market rate.

Near the end of this article, an in-house counsel hits the nail on the head. Having practiced in the real world, he acknowledged the daily pressure of having multiple phone messages to return, and the need to prioritize among his clients. As in-house counsel, he now wants his calls to be returned first, "not because [he] pays a lot of money, but because the working relationship is good."

Both the client and the lawyer have a shared goal of prospering and coming out of this economic downturn. Neither will do this at the sole expense of the other. Let's build trust through a fair engagement.

Click the title to link to the Sept. 20th article. GMAC is unilaterally stopping foreclosures in 23 states (but not Maryland) because various documents and affidavits were incorrectly prepared and executed. One processor at GMAC admitted to signing off on 10,000 items per month without reading them. Amazing.

A more recent Washington Post article on September 29th reports that JP Morgan Chase is doing the same thing. JP Morgan is unilaterally asking courts to hold off issuing final judgments in 56,000 foreclosure actions. The article doesn't identify the state jurisdictions involved.

These reports dovetail nicely with Judge Pierson's recent admonishment to foreclosure lawyers practicing in Baltimore City to make sure the new rules are scrupulously followed.

A New York ethics opinion says that lawyer can't create fake accounts and identities on Facebook and Youtube to entice contact with potential witnesses. When done by a lawyer, this is considered "dishonest" and is sanctionable.

But yet, a 30 year old male cop can pose as a 13 year old girl on-line to entice contact with the potential pedophile?

And what of the many ruses used to entice an evading defendant to accept service of legal process? This is done through an agency relationship with counsel, so isn't this effectively his dishonest behaviour?

I love this article's reference to someone dropping off a disk containing hundreds of registration forms. These folks had three years to register. I bet many delayed to the last minute intentionally to punish the State for requiring registration.

But if you are dealing with a ground rent issue, don't count on the registry to be accurate or up-to-date for many months. The better practice is to continue to collect three years of ground rent and hold in escrow.

On September 28th, I attended a meeting of approximately 40 foreclosure lawyers and Judge Michel Pierson, of the Baltimore City Circuit Court. While I don't conduct foreclosures, I was invited by the Court because my name appears in various foreclosure files as counsel seeking to alternately stay a case, consolidate with a quiet title/declaratory judgment action, or vacate a judgment improperly taken. This was a wonderful chance to catch up with old friends, and to hear how the Court and its hired staff intend to interprete the recent changes to how due process is administered in foreclosure cases.

One issue that seemed to confuse the Court, though, was the new rules' reference to filing of the "envelope" containing certain disclosures and notices to the borrower. The legislature didn't consider that the actual envelope gets mailed to the borrower. The clerk tells us that filing of a "copy" of the envelope will suffice as proof of mailing. However, this ignores the fact that many offices e-mail .pdf files to their process servers, who may then stuff their own envelopes. Jeff Fisher, a very practical fellow, suggested that the clerk accept an affidavit in lieu of a copy of the process server's envelope. Judge Pierson acknowledged the confusion created by our beloved legislature, but declared "the rule says 'envelope', not affidavit..."

The lesson of the day is that the Court and the clerks will demand strict adherence to the new rules. For those of use who routinely vette foreclosure files, we will be looking to the form of affidavits and every required notice described in the rules. Saavy foreclosure counsel will take a close look at the new rules and educate their staff.

The Maryland Court of Appeals decided this "bad affidavit" case on August 31, 2010. It has now been left to the bankruptcy court to deal with over 100 pending cases where Trustees are suing to invalidate, or "strip", liens. This office, alone, has over 20 cases, valued at close to $6 million. Each is a potential total loss under a title policy, as each lender may potentially be stripped of its lien and relegated to "general unsecured" status.

I have heard that Judge Kier, Chief Judge of the bankruptcy court, has assigned one law clerk to research the issue for all the judges. I think he wants to avoid potentially conflicting results from the four judges handling the cases.

It has become rather comical, though, to see both Trustees and counsel for the lienholders declare victory when the Ameriquest decision really does little more than amplify exisiting law.

But enough, for now. I have 20+ briefs to write!

We are now handling over 20 "bad affidavit" cases in the courts, and mostly in the bankruptcy court. Ten of them have been filed within the last three months. The most common question I get from my in-house friends is "why now?" and "why this claim?"

The trustees are counting on a positive outcome in the Maryland Court of Appeals case we call "Ameriquest." One issue in that case is whether the Curative Act, which says certain document drafting errors are self-curing if not challenged by a party to the instrument within 6 months, actually means what it reads. If the Court of Appeals does not make a clear statement that the statute is clear and unambiguious on its face, then the bankruptcy trustees can argue to avoid millions of dollars in encumbrances on real property.

Now, this will not dispose of the underlying debts. After all, the lenders will continue to participate in the estates as large, if not the largest, unsecured creditor. But it would give the trustees a toehold from which they will negotiate for some payment of tribute in order for the lender to keep its lien.

Until then, we are checking the docket, daily!