An Open Letter to My Banking Colleagues

Hi! We don't get much time to talk.

In case you don't understand, I can't speak with you directly. It is unethical for an attorney to have direct contact with a represented party. When you hire a law firm to pursue a foreclosure against my client, you are represented. So there's a bit of a wall between us from the time we meet.

I do listen, though, when I can. At a recent conference, one of you asked if it was true a foreclosure in Chicago takes three years.

"No, not if you hire competent attorneys."

"What do you mean?"

"A lot of delay comes when lender attorneys fail to do the paperwork correctly the first time. For example, if the complaint that is filed does not show me who you are and how you are related to the debt, I am going to attack it. I am going to do the things you would want your lawyer to do if you suddenly got a bill from me but didn't remember ever agreeing to pay me anything. Sometimes I am right, and the lawyer has to correct the mistake. That creates a delay. But the mistake wasn't on my part."

The conversation could have gone on for a long time. Turning in bad affidavits, not showing up in court, boarding up homes before there is a judgment of foreclosure, violating court orders, noticing cases up for "default" judgment where the homeowner has an appearance on file, giving the judge an incomplete packet to show why the foreclosure should be entered . . . . All of these acts create delays and give me an opportunity to counter-sue the bank or the attorney.

But I am not in the delay and counter-suing business. I am in the resolving problems business. I like to write to my colleagues about our problems and work out solutions. This doesn't make me a lot of money or get me a lot of publicity. It does, however, help people stay in their homes. In the end, clients would rather resolve a problem with a 15-minute phone call than with a lengthy court proceeding. It is my guess that this kind of problem-solving is also more cost-effective for banks.

I have a few colleagues, at least one at almost every Chicago firm, who take my calls and email messages and respond to me in a way that resolves problems or, at least, clarifies the extent of problems so we can do our court dates in an orderly way.

One of the issues that comes up from time-to-time is that busy law firms do not realize I represent someone. Even though I file the appropriate paperwork, send it to the firm, and often even talk to my colleagues at the firm about the case, someone does not enter my information in the computer. As a result, they contact my client directly or fail to give anyone notice of something happening in Court.

Both of these problems give rise to specific remedies. Contacting my client, a represented party, directly violates the rules governing attorneys and violates the Fair Debt Collection Practices Act. However, in the spirit of working together, I try to give at least one opportunity to correct the problem.

Likewise, failing to send me a copy of papers filed in court is an ex parte communication--the Judge can freely read anything filed in the court files. Filing something without sending me a copy is the same as talking to a Judge about a case without the other lawyer present. It is a serious violation. However, again, I like to give opportunities to work problems out.

The ex parte communication rule is not to be confused with a local rule we have here in Cook County that requires a notice of motion to be sent out at least five days in advance. That rule is designed to ensure everyone can get to the court date. It has nothing to do with ex parte communication--an old rule that exists in every jurisdiction that preserves the integrity of the judicial process.

So, banking colleagues, you see that my horns aren't as prominent as you may have heard. You think to yourselves, "How fortunate we are to have walking among us a paragon of honesty of integrity who takes time to work with colleagues in such a congenial way!"

Or, maybe you think, "Hey, she ain't that bad."

At the very least, you recognize that it is better to have your attorney resolve things with me through a phone call rather than get into a new counterclaim or costly pleading every time there is a problem. Some of your attorneys recognize this. Others don't seem so willing to work out problems and save you money.

To wit, please read the response sent to my colleague and to me when we complained of materials being filed and not sent to us even though my colleague's appearance is on file. I am protecting the name of the law firm, but I think the individual attorney would be proud to take ownership of her work. Please note we filed and mailed our appearance in April, our filing and mailing complied entirely with the rules promulgated locally, and this love letter was tendered to us yesterday, June 29, after we humbly requested materials be sent to us:

Mr. XXXXXX–

 

I have reviewed the above-referenced file and have confirmed that your information now appears as counsel of record for XXXXXXXX.

 

To avoid future confusion, please mail to our office a copy of your file-stamped appearances (or other filings) and notices of filing, in accordance with Illinois Supreme Court Rule 11(b)(3).  Our mailing address will appear in the court file or on the Complaint provided to you by your client, for your reference.  We ask that your office refrains from contacting various individuals in our office to ask to whom to send the filings, and instead mail the filings in accordance with the Supreme Court Rules.  Additionally, please make sure the Proof of Service complies with Supreme Court Rule 12 (I noticed that in this case it does not identify where you sent the appearance or by which method), so we can attempt to correct any problems moving forward, if problems continue to occur.  Adhering to these rules will ensure that our records accurately reflect your appearance and/or filings.

 

Finally, as you are aware, Cook County Local Rule 2.1(c)(i) requires us only to mail notice of motion on the fifth court day prior to the court date.  As the next court date is July 19, we have not yet sent notice.  We will continue to adhere to Local Rule 2.1(c)(i) moving forward, so you can expect to receive future notices a few days before presentment.

 

Thank you in advance for your cooperation.

 

Aukse Stase Rimas

Associate Attorney

So, "refrain" from contacting us to work out problems.

If you, dear colleagues, share this view, then we cannot work out problems. We are left to litigation.

Let's step back from this and think about how attorneys can be instructed, by the client, to work cooperatively, professionally, and courteously to ensure matters are concluded efficiently and that additional liability does not arise.

Kelli Dudley
Attorney at Law

The Fed is on the Run from my Criticism

In past posts, I have criticized the Fed for caving in too quickly concerning the robo-signing scandal. I believe they settled with the offenders far too quickly, they entered into a consent agreement that offers no real relief to aggrieved homeowners, and they made no significant provisions for homeowners who lost their property due to wrongful foreclosures. I was crushed, of course, when, without regard for my criticism, they entered into the consent agreements.

Today, I attended a conference where an OCC staff member sat on a panel and promoted the virtues of the consent agreements. I could barely control my anger as he spoke.

Still convinced of my relevance, I followed the OCC staff member as he left the room. He picked up his pace. I picked up my pace.

Outside, I got his attention despite his obvious efforts to ignore me.

"You mentioned that the consent agreements require the lenders to exercise better control over their foreclosure counsel?"

"Yes."

"You might be interested in a case I have pending. Counsel brought in the original note with an allonge, but the allonge is a signed piece of paper to which a sticker bearing the name of the borrower and the loan number has been attached. She displayed it in open court. I think it is a problem."

"This is why we gave them four months until the consent agreements are effective. If you see this four months from now, you can use our complaint process."

At least I had him on the run for a minute.

Law firm Fisher and Shapiro sued over foreclosure cases

Law firm Fisher and Shapiro sued over foreclosure cases

Fisher & Shapiro Sued for Falsifying Affidavits in Support of Foreclosure

Today, my firm, in cooperation with Progressive Law Group, filed a class-action lawsuit against Fisher & Shapiro. The lawsuit is pending in the Federal District Court for the Nothern District of Illinois, Eastern Division.

Fisher & Shapiro is the law firm that previously admitted to falsifying affidavits to get foreclosure judgments. In Cook County, Illinois, alone, the firm has admitted to submitting false affidavits in 1,700 cases. The lawsuit, in essense, asks for damages under the Fair Debt Collection Practices Act based on the firm having made false representations in an effort to collect a debt.

The devastation caused by firms like Fisher & Shapiro is clear in this case. Many of the addresses affected have been abandoned by homeowners fearing they will be evicted or even illegally locked out of their home by the bank--as has happened to so many others.

This story is not about a single foreclosure. Fighting single foreclosures is a challenge, and I continue to do it. In case after case, the law falls to the side in favor of expediency, with the bank eager to take over a home, evict the homeowner, and begin the process of letting the property rot into the ground without being secured, without utilities, without weatherization, and without any maintenance. The banks turn away thousands of dollars offered in good faith by homeowners seeking to stay in their homes, anxious to modify their loans and make regular payments while maintaining the property.

This story is about a simple example I use almost every time I talk to the public. Homeowners understand. Maybe this time the court will agree.

My example is this: A driver who is accused of rear-ending another car in an auto accident faces certain presumptions. The law assumes, in many states, that the car in the rear caused the accident. However, the person seeking damages must still follow the proper procedures. The plaintiff must file a proper complaint that sets out the required allegations needed for a "tort" (injury) case. The plaintiff must serve the defendant with a summons and complaint in the way mandated by state law. The defendant can answer, and can even deny every allegation the plaintiff makes. The defendant and plaintiff can go through the discovery process to gather facts. In the end, there may even be a trial. The defendant who looked so negligent in the beginning may be able to prove the plaintiff was at fault. For example, the plaintiff may have been backing up and may have driven into the defendant. Even if the defendant loses, he or she still received due process of law, a legal idea of fairness pre-dating the Constitution.

In foreclosure cases, however, due process is not always followed. I have written about violations of due process in other blog posts.

In this case, the false affidavits that were filed represented perjury. They enabled the Plaintiff to get a larger judgment than that to which it may have been entitled.

The bank's attorneys admitted to altering affidavits signed by bank employees after the fact. In some cases, they would unstaple the affidavits, insert more pages, and re-staple the affidavits before submitting them to the judge.

Like the driver in the "rear-end" car accident, a person accused of failing to pay his or her mortgage may look guilty. However, the homeowner is still entitled to due process. In the foreclosure arena, due process has been run over in the interest of banks receiving quick judgments. It is time to back up. We already ran over at least 1,700 people.