Balancing the Scales of Justice for Pro Se Homeowners

Blog

SHERIFF ANNOUNCES CRIMINAL FRAUD INVESTIGATION

Posted by on Jul 3, 2012 in Foreclosure, General Public | 1 comment

Thank you to Charles Cox and Foreclosure Hamlet for sharing the followiing.

The Sheriff for Carroll County New Hampshire, High Sheriff Christopher Conley has announced an investigation regarding mortgage fraud. I have attached the Press Release below, you can click on the link:

Mortg%20Fraud%20TF%20Docs%20070212.pdf  or click here:  Sherriff Invesitgates Fraud

Hopefully other Sheriffs around the country will follow in his footsteps. I would encourage everyone to share this Press Release with their Sheriff and demand that they also start an investigation into the mortgage fraud, and send an email or call the Carroll County Sheriff and give him your support.

 

 

California Homeowner Bill of Rights Passes Legislature, Bringing Mortgage Reforms One Step Closer to Law

Posted by on Jul 2, 2012 in Foreclosure, General Public | 1 comment

California Homeowner Bill of Rights Passes Legislature, Bringing Mortgage Reforms One Step Closer to Law

State of California - Office of the Attorney General, Kamala D. Harris

California Homeowner Bill of Rights Passes Legislature, Bringing Mortgage Reforms One Step Closer to Law

Monday, July 2, 2012
Contact: (415) 703-5837

SACRAMENTO — Attorney General Kamala D. Harris announced the California Homeowner Bill of Rights is one step closer to becoming law after key provisions passed the California Legislature today. The bills, which provide first of their kind protections for homeowners and reforms to the mortgage and foreclosure process, will now be sent to the desk of Governor Jerry Brown for consideration. The bills were approved 53 to 25 in the Assembly and 25 to 13 in the Senate.

“Passing these key elements of Homeowner Bill of Rights represents a significant step forward for struggling homeowners,” said Attorney General Harris. “These common-sense reforms will require banks to treat California homeowners more fairly and bring more transparency and accountability to their practices in our state. Responsible homeowners will have a better shot to keep their homes.”

“Californians will finally have a fighting chance to keep their homes, as this measure brings fairness to the loan modification and foreclosure process,” said Senate President pro Tem Darrell Steinberg. “At the same time, the protection gained by homeowners will help stabilize the housing sector of our economy. I applaud my colleagues for their hard work to protect consumers through this reasoned compromise.”

“The package approved by the Legislature today is a major victory for California’s consumers,” said Assembly Speaker John A. Pérez. “We impose tough new regulations on banks and lenders to stop the abusive practices we’ve seen since the collapse of the housing market, and this package will bring relief to hundreds of thousands of California homeowners.”

The California Homeowner Bill of Rights consists of a series of related bills, including two that were passed on June 26 by a two-house conference committee: AB 278 (Eng, Feuer, Pérez, Mitchell) and SB 900 (Leno, Evans, Corbett, DeSaulnier, Pavley, Steinberg).

The two identical bills passed by the conference committee contain key elements of the legislative package and provide protections for borrowers and struggling homeowners, including a restriction on dual-track foreclosures, where a lender forecloses on a borrower despite being in discussions over a loan modification to save the home. The bills also guarantee struggling homeowners a single point of contact at their lender with knowledge of their loan and direct access to decision makers. For the first time, the Homeowner Bill of Rights imposes civil penalties, of up to $7,500, on the repeated filing of foreclosure documents without verifying their accuracy, a practice commonly known as “robo-signing.” In addition, homeowners may require loan servicers to document their right to foreclose.

Homeowners will also have a clearly-defined right to access the courts to protect themselves from violations of these protections.

The Homeowner Bill of Rights also consists of four bills outside of the conference committee process.  These will enhance law enforcement responses to mortgage and foreclosure-related crime, in part by empowering the Attorney General to call a grand jury in response to financial crimes spanning multiple jurisdictions. Additional elements will help communities fight blight related to foreclosure, and the crime that results, and provide enhanced protections for tenants in foreclosed homes. Please see the attached fact sheet for the status of these bills.

The California Homeowner Bill of Rights was introduced February 29, 2012 at a press conference featuring Assembly Speaker John A. Pérez and Senate President pro Tem Darrell Steinberg and bill authors from the Assembly and Senate. The Homeowner Bill of Rights codifies many of the core protections from the recent national mortgage settlement.

The California Homeowner Bill of Rights extends Attorney General Harris’ response to the state’s foreclosure and mortgage crisis. Attorney General Harris created a Mortgage Fraud Strike Force in March, 2011 to investigate and prosecute misconduct related to mortgages and foreclosures. In February 2012 Attorney General Harris extracted a commitment from the nation’s five largest banks to dedicate an estimated $18 billion to mitigate financial harm to California borrowers caused by bank misconduct in the foreclosure process.

More details about the California Homeowner Bill of Rights are found on the attached fact sheet. To learn more about how the bills impact California homeowners, review the slideshow at: www.oag.ca.gov.

Attorney Verification Matters!

Posted by on Jun 12, 2012 in Foreclosure, General Public | 1 comment

Today we received word that a homeowner won her Demurrer.  The homeowner argued in the Demurrer that JP Morgan Chase is a large corporation with 240,000 employees, and therefore it made no sense that JP Morgan Chase did not verify the Complaint.  The Judge agreed!  The Judge stated he “could not comprehend how a corporation the size of JP Morgan Chase did not have one single employee available to sign” – the Demurrer was granted and JP Morgan Chase was given 10 days to re-file the complaint with the correct verification.

Couple of key things –  the homeowner included 4 exhibits to be judicially notice – the website of JP Morgan demonstrating the number of employees and a corporate address in Los Angeles County; a Press Release on Senior Vice President, Peter Barker, who has resided in Los Angeles County for years; and two judicially notice articles on LInkedin Profiles showing how many VP’s are in Los Angeles County, with their names.  NONE of these were granted, but the effort was not lost on the Judge; he recognized that JP Morgan is too big to not have someone available.

The second key winning ingredient was the homeowner hired a limited scope attorney to represent her in Court.  The Homeowner recognized that she was not positioned to argue the Demurrer so she hired an attorney to argue the Demurrer on her behalf – a winning decision!  It also helped that the Attorney understood the attorney verification issue and AGREED with the Demurrer.

Key wording (which we discuss in our California Homeowners Fighting Unlawful Detainer):

The Complaint is to be a verified complaint upon which the Plaintiff seeks to establish a prima facie case with the rebuttable presumption that CCC § 2924 was followed and title has been duly perfected.  The Complaint must be verified by the Plaintiff unless absent from the County.  As per the Judicial Notice, JP Morgan has multiple offices in Los Angeles County upon which officers of the Corporation are present and available to verify the complaint.  The attorney is not being forthright and truthful with the Court.

An attorney should not verify the Complaint, as per CCC § 446, unless the client is absent from the County or the facts are within the attorney’s personal knowledge.  For the attorney to act as a witness to the Complaint based on their “information and belief” the attorney is stepping into the shoes of the Plaintiff and can be called upon as a witness.  The Complaint must contain a written authorization by the Plaintiff authorizing the attorney to act as “his witness” –without such authorization an Attorney verifying the complaint is in violation of the California Rules of Professional Conduct 5-210(c).

For these reasons, pursuant CCCP § 1166(a) this is an improperly verified complaint and this demurrer should be sustained with leave to amend.

 Under Argument:

B.  VERIFICATION IS REQUIRED

  1. The Plaintiff must plead with standing and sufficiency.  As our Supreme Court has said in Silcox v. Lang, (1889) 78 Cal. 118, 122: “The Practice of attorneys verifying for their client should be discouraged, and to that end, the provision of the code should receive a strict construction.
  2. Civil Code of Procedure § 446 does not authorize  attorney verification where absence of the party creates no inability on his part to verify.  An unlawful detainer is a drastic measure upon which the lives of the Defendant are impacted as they are faced with possible dispossession of their home.  This is not a matter that should be treated with a cavalier attitude in which the Plaintiff can escape their legal responsibility to verify by affidavit or declaration of the facts by pretending they are not available.  The Plaintiff seeks to leverage several documents that are based on “information and belief” rather than personal knowledge of ANYONE involved – this includes the recitals of the Trustee Deed Upon Sale and this Complaint.

C.            JP MORGAN CHASE IS IN THE COUNTY

  1. The Summons and Complaint both indicate that the Plaintiff is one JP Morgan Chase and the attorney verification indicates the Plaintiff was “not in the county this day”.  JP Morgan Chase is a multi-national corporation which according to their website operates in over 60 Countries with 240,000 employees, including officers in California.(See JN#1).   Peter Barker, the California Chairman has resided in Los Angeles since 1978, is just one of many executives who are available for verification of the Complaint. (See JN#2 and #4)  According to Linkedin, an online database of profiles of business professionals, over 342 JP Morgan Chase employees identify themselves as being in Los Angeles, including over 56 profiles claiming an executive role of Vice President or higher. (JN#3)  The attorney is not being truthful with the Court.

D.  ATTORNEY CAN NOT ACT AS A WITNESS WITHOUT AUTHORIZATION

  1. The only time the plaintiff’s attorney may verify the complaint is when the plaintiff is absent  from the county where the attorney has his or her office or is otherwise unable  to verify the complaint; or the facts are within the personal knowledge of  the attorney verifying the complaint. CCP § 446; League of Women      Voters v. Eu (1992) 7 CA4th 649, 656.

                 Furthermore, California Professional Codes  5-210 holds that attorneys will not act as witnesses without written authorization of their clientThe Complaint holds no written acknowledgement from Plaintiff as required by California Rules of Professional Conduct 5-210(c) The member has the informed and written consent of the client  to allow an attorney to act as a “witness”.

E.  JP MORGAN NEEDS TO VERIFY REGARDLESS

  1. In DeCamp      v. Kensington Corp. (1978) 83 Cal. App.3d 268, 275 the Court  recognized that attorney verification should only be permitted where the   client’s absence from the county makes it impractical or impossible.  The Court found, If the client can be reached by mail, no such impossibly exist…and the      attorney verification is not allowed”.   NOT ALLOWED.  This cannot be any more direct or plain in its language.  Plaintiff’s attorneys know this, or should know this.  Clearly the Court recognizes this matter not to be taken lightly and that all the parties involved need be accountable in following the strict construction of the law.

Again, we are very happy and PROUD of Eden standing up for her rights!   Attorney verification is an unethical practice in my book…if the bank is going to take your house then they damn well should sign the complaint.  We will keep you apprised to how she does in the follow up litigation…so stay tuned!

 KEEP UP THE FIGHT!

 

Simonee

Is the Steve Nagy Signature on your Assignment, Mortgage or Note, legitimate?

Posted by on Jun 11, 2012 in Foreclosure, General Public | 8 comments

On May 23, 2012, Alan Jacobs, Trustee of the New Century Liquidating Trust, testified that as of August 8, 2008 Steve Nagy had no authority to do any assignments or indorsements on any Notes!  He also testified that he did not know when Steve Nagy had left New Century’s employment so he was not sure when the Nagy signature should have stopped being used.

To date no one has seen any corporate minutes or resolutions allowing Steve Nagy authority to assign any asset of New Century Mortgage, and certainly he was dispossessed of that authority when he left New Century’s employment.  I think there is actually some discovery somewhere that states Nagy left New Century in December of 2007 – so if your foreclosure involves any documents with Nagy’s signature I would definitely be doing some discovery and fighting the validity of that signature!

Click here for an excerpt of Jacob’s testimony about the Steven Nagy Signature   Nagy Transcript comments

 

Does it make sense for a Pro Per /Pro Se to hire an “appearance attorney” for arguments before the Court?

Posted by on Jun 5, 2012 in Foreclosure, General Public | 1 comment

There is a growing trend among Pro per/pro se litigants to engage an attorney to “appear” for oral arguments on some (or all) of their motions.  Following is how the Los Angeles County’s Bar Association handles attorney’s who help Pro per/Pro se litigants.  (And yes, it appears that if the attorney is CLEAR with both the client and Court that the attorney has a limited scope of work, it is possible for a pro per/pro se to get an attorney to argue in Court for the pro per/pro se litigant)  Follow this link for the actual posting (Click here)

 

LOS ANGELES COUNTY BAR ASSOCIATION PROFESSIONAL RESPONSIBILITY AND ETHICS COMMITTEE

Ethics Opinion No. 483
SUMMARY Limited Representation of In Pro Per Litigants.
An attorney may limit the attorney’s services by agreement with a pro per litigant to consultation on procedures and preparation of pleadings to be filed by the client in pro per. A litigant may be either self-represented or represented by counsel, but not both at once, unless approved by the court; therefore, in order for the attorney to specially appear on behalf of the litigant before the court for a limited purpose, the attorney should comply with all applicable court rules and procedures of the particular tribunal.

AUTHORITIES CITED

Business and Professions Code §6105; Business and Professions Code §6068(d); Business and Professions Code §6068(e); Anderson v. City R. Co., 9 Cal. App. 2d 205, 206-07 (1935); Epley v. Califro, 49 Cal. 2d 849 (1958); Grudger v. Manton, 21 Cal. 2d 537, 549-50 (1943); Himmel v. City of Burlingame, 169 Cal. App. 2d 97, 100 (1959); Kelly v. Ning Yng Venev. Asso., 2 Cal. App. 460, 466 (1905); Nicol v. Davis, 90 Cal. App. 337, 342 (1928); People v. Bloom, 48 Cal. 3d 1194, 1218-19 (1989); Rules of Professional Conduct, Rule 1-300(A); Rules of Professional Conduct, Rule 1-400; Rules of Professional Conduct, Rule 3-110; Rules of Professional Conduct, Rule 3-310(C); Rules of Professional Conduct, Rule 3-700(A)(2); Los Angeles County Bar Association, Formal Opinion No. 432, dated December 17, 1984; Los Angeles County Bar Association, Formal Opinion No. 449, dated March 1988; Cal. State Bar Formal Opinion No. 1984-83; American Bar Association, Model Rules of Professional Conduct, Rule 1.2(c).

FACTS AND ISSUES PRESENTED

An attorney is engaged by individuals representing themselves in litigation in propria persona to give legal advice about various steps in the case. The attorney’s written engagement agreement with the in pro per client provides that the attorney will not be the attorney of record in the case, that court appearances, calendaring, filing of papers, meeting of deadlines, and all other responsibilities that counsel of record normally would do, are the client’s responsibility. The attorney’s engagement is limited to that of a law consultant who will advise the client on matters only as the client requests and to assist in or draft papers that the client will sign and file. The attorney also may keep track of the case and its deadlines. All documents are prepared with the client appearing as a party in pro per. Is the providing of the foregoing limited legal services to the in pro per client improper or unethical, assuming that the client requests it, the limited scope of the attorney’s representation is fully explained in writing, and the client agrees thereto?

The attorney additionally desires to make special appearances on motions the in pro per client has filed or responded to, which may or may not have been drafted in whole or in part by the attorney. May the attorney ethically do this?

May the attorney, at the request of the client (i) appear at the status conference as “associate counsel” at which the attorney who will actually try the case must appear, and then (ii) actually try the case, again on an “associated in” basis?

DISCUSSION

I. Provision of consulting advice and preparation of pleadings.

Except where an attorney is assigned by the court, the attorney-client relationship is created by a contract, express or implied, between the attorney and the person who engages him or her. Kelly v. Ning Yng Venev. Asso., 2 Cal. App. 460, 466 (1905). An attorney’s authority is limited to the subject matter for which the attorney is retained by the client. Grudger v. Manton, 21 Cal. 2d 537, 549-50 (1943); Nicol v. Davis, 90 Cal. App. 337, 342 (1928).

There is nothing per se unethical in an attorney limiting the professional engagement to the consulting, counseling, and guiding of self-representing lay persons in litigation matters, provided that the client is fully informed and expressly consents to the limited scope of the representation. In Los Angeles County Bar Association Formal Opinion No. 432, this committee opined that the preparation of an answer for an in pro per litigant constituted the providing of professional services and the attendant creation of an attorney-client relationship. The American Bar Association, Model Rules of Professional Conduct, which are not binding on California lawyers but which sometimes provide useful guidance on matters not specifically addressed by the California Rules of Professional Responsibility (cf. Cal. State Bar Formal Opinion 1984-83), provide at Rule 1.2(c) that “[a] lawyer may limit the objectives of the representation if the client consents after consultation.”

In Los Angeles County Bar Association Formal Opinion No. 449, this committee opined that there is no ethical proscription with respect to providing legal advice over the telephone in response to a stated set of facts, where charges would be based on the time spent on the telephone and where the attorney would not be otherwise involved in the case to which the alleged facts pertain. The committee is of the opinion that, assuming the attorney’s engagement agreement with the client clearly delineates the limited scope of the attorney’s services, the attorney may provide consultation and prepare pleadings for filing on behalf of the client.

The performance of such legal services does create an attorney-client relationship and, as the committee pointed out in Los Angeles County Bar Association Formal Opinion No. 449, the attorney would have a duty of confidentiality toward each person using the attorney’s services under Business and Professions Code §6068(e). The attorney would also be under a duty to avoid the representation of adverse and conflicting interests prohibited by Rules of Professional Conduct, Rule 3-310, and that this might well involve extensive record keeping. To meet the competency requirements of Rules of Professional Conduct, Rule 3-110, the attorney should take care to elicit sufficient information from the client to enable the attorney to render appropriate advice. Any advertisement of the attorney’s services must conform to the requirements of Rules of Professional Conduct, Rule 1-400.

As a matter of custom and practice many individuals use attorneys to assist them in representing themselves in litigation matters to save the costs and legal fees that would otherwise be involved.[1] An attorney may not assist the unauthorized practice of law by preparing papers for a client other than the party directly involved in the litigation. Rules of Professional Conduct, Rule 1-300(A).

The provision of limited services to a client from time to time raises potential issues of client abandonment under Rules of Professional Conduct, Rule 3-700(A)(2), prohibiting abandonment of clients. Reasonable steps to avoid reasonably foreseeable prejudice, due notice, and opportunity for replacement counsel’s engagement and providing client’s files are still required.

II. Special appearances on behalf of the client.

A party may appear in his own person or by an attorney, but cannot do both, unless approved by the court. Epley v. Califro, 49 Cal. 2d 849, 854 (1958); People v. Bloom, 48 Cal. 3d 1194 (1989); and Nicol v. Davis, 90 Cal. App. 337, 342 (1928). The attorney in the circumstance proposed in the inquiry of limited representation to argue motions, whether or not prepared by the attorney, should comply with all applicable court rules and procedures of the particular tribunal. As long as the limited nature of the representation is disclosed to the court and approved by the court, the committee is of the opinion that there is no ethical impropriety.

The appearance at the status conference, where trial counsel must appear, where counsel did not intend to become counsel of record, may constitute a violation of Business and Professions Code §6068(d), as misleading the court as to the true status of the attorney and that the attorney is not controlling the case. Appearance at the status conference requiring trial lawyers may be a tacit representation to the court and opposing counsel that prior to the time of trial there will be an appropriate substitution of the attorney for the in pro per client and the attorney is ready, willing, and able to proceed to trial. In such circumstances it is most likely that the court would find that the client has ratified the attorney becoming counsel of record and fully responsible for the case. Anderson v. City R. Co., 9 Cal. App. 2d 205, 206-07 (1935). Thus, it would be advisable for the attorney to make clear to the court the scope of the attorney’s representation.

This opinion is advisory only. The committee acts on specific questions submitted ex parte and its opinions are based only on such facts as are set forth in the questions submitted.

1 Since a corporation can appear only through an attorney, an attorney may not represent a corporation in this manner. Himmel v. City of Burlingame, 169 Cal. App. 2d 97, 100 (1959).

X

Forgot Password?

Join Us

Password Reset
Please enter your e-mail address. You will receive a new password via e-mail.