See Garfield’s comments below. I write in response:
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.
On 10/15/2013 09:48 AM, Livinglies’s Weblog wrote: