I took a break from this blog and intended to be absent during a career transition.
However, fraudsters do not rest. Fighting fraudsters appears to mean no rest for me.
The latest reason for my frustration: the Illinois Appellate Court issued an an opinion on December 23, 2012. During the course of the holidays, fraudsters have taken the opinion and used it to stir up discontent and confusion among homeowners facing foreclosure. For a fraudster, whether an attorney in the business of charging a lot of money for sub-standard legal work or a real estate agent intent on sleazy deed scams, confusion is currency. A confused homeowner will storm out of the law office or community meeting of an attorney offering solid legal advice and come back only after learning the person who "guaranteed" to save their home and took $3000 never attended a single court date.
This being said, I am not against looking carefully at the facts of each case, every document involved in the case, and the law that applies. However, in litigation as in life, "no" often means "no."
Using a legitimate and final "no" to create confusion is the tactic currently in use by a fraudster circulating materials in Illinois that indicate summonses issued in Cook County are illegitimate because they are not signed by the Clerk.
Cook County is full of people, most of them lawyers. It is the home of largest unified court system in the United States. In the foreclosure area alone, upward of 100,000 cases are filed per year. Each case is, ideally, begun with a summons and complaint. The summons needs to be "signed" by the Clerk of Court. The problem is that the Clerk is an energetic woman, but hasn't yet mastered signing every summons in every case filed in each of Cook County's several courthouses. I mean, she's good--but she's no Linda Green.
A lawyer decided to make a big deal out of this and file some last-minute litigation to try to save the homes of people who admittedly were served with the summons and complaint but did not effectively respond to the lawsuit. The argument was that since the Clerk does not sign each summons individually but allows deputy clerks to affix a stamp and seal, she rendered each summons defective.
It is hard to imagine the scenario where the lawyer advancing this argument believed it was legally valid. Any lawyer who has ever filed a lawsuit in Cook County has seen the very same stamp and seal affixed to the summons he or she prepared. Although I think of myself as fighting on the side of right, I have filed many lawsuits with which someone out there (at least the defendant) disagreed. Time and again, I have walked my stamped-and-sealed summons to the Sheriff's office to be served.
The utter insincerity of challenging such a practice is hard to comprehend. However, the lawyer did not stop at the trial stage, where one of the most thorough judges to ever sit on the bench held the stamp and seal of the Clerk were valid. Instead, the case was appealed. Predictably, the appellate court sided with the plaintiff.
My own tastes aside, the courts exist for litigation, and asking the trial and appellate courts to decide issues is the role of the attorney. It seems the issue in the case was purely imaginary, but lawyers can disagree about these things and it is the role of judges to decide.
However, now, the party is doing the inexcusable: sending out mass email messages and maintaining a website encouraging people to contact the judges through a petition and to order their very own "Clerk Brown" stamp. The implication is that people should forge the Clerk's name.
This is an illegal action. Adding confusion the law and the process with these materials is inexcusable. People in foreclosure need real information, not utter stupidity aimed at causing them to fall prey to fraudsters.
Anyone receiving solicitations about this matter should report it to the Illinois Attorney General.
And, think twice before writing that check to the attorney with the great and novel legal theory. Good legal work is understandable, terms are defined in writing, and the sums charged are set forth clearly. If someone guarantees to save your home, I guarantee you are about to become the victim of fraud.
Sunday, January 15, 2012
Friday, October 28, 2011
Sumpin' Smells Funny; Must be the Money!
Why on earth would the New York Police Department's union threaten to sue Occupy Wallstreet protesters? Does the average officer really believe she or he is aligned with the 1 percent? Or does the average officer remember the hard battle fought because, in recent history, starting wages could be as low as $21,000?
The answer, it turns out, is that attorney James Lysaght knows who butters his bread. And the wielder of all forms of fatty deliciousness to be spread across Lysaght's toast is: the financial industry.
It is a story as old as time. Lawyer meets corrupt official. Corrupt official is removed. Corrupt official transfers business to lawyer's wife (also a lawyer).
Firm gets in legal trouble. Firm closes. Lawyer begins new firm. New firm serves two masters: the union (Patrolmen's Benevolent Association) and corporate America.
Or, to be blunt, firm represents corporate America. Firm lashes out against working people who funded (voluntarily or not, through the misuse of their union dues) lawyer's rise to power.
Former cop, James Lysaght, is a loyal type. He has kept close ties to his former roommate, Richard Hartman. Hartman used union funds for gambling binges. Lysaghts firm was hired to replace Hartman, but then hired him as a "consultant" to sell life insurance policies to the Patrolmen's Benevelent Association.
Then, Lysaght was, in 1997, indicted on racketeering charges for taking kickbacks for $3 million in legal business. (So that's how you get those big clients--I slept through class that day in law school!)
Not one to be kept down, Lysaght, with his wife, started a new firm. And who would hire a lawyer after such an indictment? Why, the financial services industry!
Mr. Lysaght serves a master. And that master is not the average police officer patroling New York City's streets. Mr. Lysaght's sole interest is to protect and defend those who destroy the economy.
The answer, it turns out, is that attorney James Lysaght knows who butters his bread. And the wielder of all forms of fatty deliciousness to be spread across Lysaght's toast is: the financial industry.
It is a story as old as time. Lawyer meets corrupt official. Corrupt official is removed. Corrupt official transfers business to lawyer's wife (also a lawyer).
Firm gets in legal trouble. Firm closes. Lawyer begins new firm. New firm serves two masters: the union (Patrolmen's Benevolent Association) and corporate America.
Or, to be blunt, firm represents corporate America. Firm lashes out against working people who funded (voluntarily or not, through the misuse of their union dues) lawyer's rise to power.
Former cop, James Lysaght, is a loyal type. He has kept close ties to his former roommate, Richard Hartman. Hartman used union funds for gambling binges. Lysaghts firm was hired to replace Hartman, but then hired him as a "consultant" to sell life insurance policies to the Patrolmen's Benevelent Association.
Then, Lysaght was, in 1997, indicted on racketeering charges for taking kickbacks for $3 million in legal business. (So that's how you get those big clients--I slept through class that day in law school!)
Not one to be kept down, Lysaght, with his wife, started a new firm. And who would hire a lawyer after such an indictment? Why, the financial services industry!
Mr. Lysaght serves a master. And that master is not the average police officer patroling New York City's streets. Mr. Lysaght's sole interest is to protect and defend those who destroy the economy.
Thursday, August 11, 2011
A Modest Proposal
It has come to my attention that there is concern for judicial economy in the foreclosure process. Particularly, some feel that making lenders who wish to foreclose prove that they own the right to foreclose is unduly burdensome. It imposes too much paperwork upon lenders, and it causes court dockets to be crowded as cases are not concluded due to the inability of lenders to prove they own the right to foreclose.
There is also concern that the lenders will not lend if they are not given an unfettered right to take any home they choose away from the homeowner without regard to due process. Since governmental gifts did not inspire the banks to lend to working people, many conclude that nothing short of waiving ages-old due process requirements will do so.
Upon reflection, these are just and proper concerns. After all, the lenders are victims. They did not choose loan terms, borrowers, and which properties would secure the loans. Clearly, borrowers forced the banks to unwillingly lend money, collect high fees, impose usurious interest, and retain the right to take away the borrowers' homes at the slightest allegation of default.
Indeed, Illinois and other judicial foreclosure states are imposing an undue burden by making the banks go to court at all. They have to serve a summons, file a form complaint, and, in a few cases, they are even made to ensure they are foreclosing on the right property, for the right sum, and against the right person. In other cases, the banks even have to prove the homeowner failed to make payments.
All of this goes far beyond the scope of anything a reasonable lender would expect to do in civil society. Therefore, I propose the Kelli Dudley Equity-Stripping Simplification Act of 2011. The key points follow:
1. As soon as the bill becomes law, all homeowners, tenants, and other structure-dwellers are required to vacate the home, apartment, or other structure within 30 days.
2. Homeowners, tenants, and other structure-dwellers are forbidden to take up residence in any new home, apartment, or structure.
3. Homeowners, tenants, and other structure-dwellers who purport to have a possessory or ownership interest in any home, apartment, or structure shall be required to bring an affirmative case proving the possessory or ownership interest. The standard of proof shall be "beyond a reasonable doubt."
4. Any lender may destroy or fail to maintain any property after it is vacated by the homeowner, tenant, or structure dweller and shall forever be immune to suit by any homeowner, tenant, or structure dweller for such damage. Any homeowner, tenant, or structure dweller taking any action to prevent destruction or waste of property shall be subject to a criminal sentence of not less than 50 years and a fine of not less than $500,000.00.
There is also concern that the lenders will not lend if they are not given an unfettered right to take any home they choose away from the homeowner without regard to due process. Since governmental gifts did not inspire the banks to lend to working people, many conclude that nothing short of waiving ages-old due process requirements will do so.
Upon reflection, these are just and proper concerns. After all, the lenders are victims. They did not choose loan terms, borrowers, and which properties would secure the loans. Clearly, borrowers forced the banks to unwillingly lend money, collect high fees, impose usurious interest, and retain the right to take away the borrowers' homes at the slightest allegation of default.
Indeed, Illinois and other judicial foreclosure states are imposing an undue burden by making the banks go to court at all. They have to serve a summons, file a form complaint, and, in a few cases, they are even made to ensure they are foreclosing on the right property, for the right sum, and against the right person. In other cases, the banks even have to prove the homeowner failed to make payments.
All of this goes far beyond the scope of anything a reasonable lender would expect to do in civil society. Therefore, I propose the Kelli Dudley Equity-Stripping Simplification Act of 2011. The key points follow:
1. As soon as the bill becomes law, all homeowners, tenants, and other structure-dwellers are required to vacate the home, apartment, or other structure within 30 days.
2. Homeowners, tenants, and other structure-dwellers are forbidden to take up residence in any new home, apartment, or structure.
3. Homeowners, tenants, and other structure-dwellers who purport to have a possessory or ownership interest in any home, apartment, or structure shall be required to bring an affirmative case proving the possessory or ownership interest. The standard of proof shall be "beyond a reasonable doubt."
4. Any lender may destroy or fail to maintain any property after it is vacated by the homeowner, tenant, or structure dweller and shall forever be immune to suit by any homeowner, tenant, or structure dweller for such damage. Any homeowner, tenant, or structure dweller taking any action to prevent destruction or waste of property shall be subject to a criminal sentence of not less than 50 years and a fine of not less than $500,000.00.
Sunday, July 31, 2011
Foreclosure Training--August 8, 2011
The John Marshall Law School will host a foreclosure training on August 8, 2011 from 2:00 until 5:15 p.m. Two Cook County judges will talk about the foreclosure process.
The cost is $50.00. Three Continuing Legal Education credits are available for attorneys. However, you need not be an attorney to attend.
Advance registration is REQUIRED:
http://www.jmls.edu/events/index.shtml#080811fh
The cost is $50.00. Three Continuing Legal Education credits are available for attorneys. However, you need not be an attorney to attend.
Advance registration is REQUIRED:
http://www.jmls.edu/events/index.shtml#080811fh
Thursday, June 30, 2011
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:
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
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
Thursday, June 23, 2011
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.
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.
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