I found An interesting Anonymous post . Something to think..
In the process of sizing up the foreclosure defense industry, I have concluded that most foreclosure defense attorneys practice malpractice, and I have started to write about it. I do it as kindly as conscience will allow me because I know that many lawyers struggle to pay their expenses and MUST get money rolling in. Few foreclosure defendants can afford the typical $300 per hour rates plus expenses. So, foreclosure defenders charge a $2500+ retainer, and $500 to $100 a month to stave off eviction for as long as possible.
I consider that malpractice.
First of all, a defaulted borrower doesn’t need an attorney to dicker for delays. The borrower can negotiate loan modification, short sale, and keys for cash and stay in the house for 8 to 18 months, saving the house payments for relocation. At move-out, the savings plus keys-for-cash money will leave the borrower with $20,000 to $35,000, enough to buy a house free and clear at a foreclosure auction. And let’s face it. Most people need to move because their house needs repair and/or they have outgrown it since buying it. Who needs a lawyer for that? Not many homeowners that I know.
Second, I expect an attorney to whom I bring a contract dispute to look for breaches and torts underlying the contracts. A note and a mortgage (contracts) provide such an opportunity. An attorney who does NOT jump on the contracts to find underlying breaches and torts thereby commits malpractice. An attorney who drags out the litigation for a year and a half and then stands by while his client loses the house, and NEVER looks for torts and breaches, cheats his client out of a possible victory: getting a cash settlement or the house free and clear or both.
When tossing about to find out why so many attorneys take this irresponsible approach, I imagine that their lack of experience frightens them off or their laziness lures them into a kind of mobster enterprise. “After all, nearly ALL of the other foreclosure defense attorneys do it, so why shouldn’t I?” they reason. In the end the attorney pockets $15,000 to $35,000 for doing virtually nothing in delaying the inevitable foreclosure. The client needed that money for another house and could have delayed the foreclosure without the attorney’s “help.” I suppose the “Pretender Defender” attorney didn’t care about that.
Quite aside from the TILA, RESPA, and other law violations, I can think of two prominent possibilities that every foreclosure defender should attack:
1. Loan application fraud by the mortgage broker – many for years dummied up entries on the loan app so the borrower could appear to qualify.
2. Over-appraisals – single family appraisals have for decade exceeded actual value by as much as 50%, never included income capitalization as a valuation method, and dummied the replacement cost valuation method, relying only on market value. Often this led to price-gouging, typical of the opportunists arrested for jacking up the price of jugs of water during the Rodney King L.A. riots. The clearest indication of over-appraisal fraud: foreclosure auctions routinely produce sales for 1/5 to 1/6 of their 2007 “values.” A distraught woman came to me a few months ago with that same issue. She had watched as her foreclosed house, on which she’d had a $148,000 note, sold at auction for $28,000 after months of haggling over a loan mod which the servicer ultimately failed to provide.
So, while I understand professional and financial pressures on foreclosure defense lawyers, I do not forgive them for essentially cheating their clients out of an opportunity to obtain a fat settlement to avoid predatory-lending litigation, or possible compensatory and punitive damages, and legal fees awards from the court. See this Example.
One more point: the state should make all law knowable. That means the public should get full internet access to all law; if it isn’t available on the internet free, then it shouldn’t apply. Failing to publish it on the internet has the same effect as nailing it to a post in town center 20 feet above the ground so nobody can see it. And the court should publish ALL rulings.
The imperative to make the law knowable applies especially to the infamous English law of Florida Statute 2.01. The Florida Legislature never fully published that law, and does not publish it at all these days. When it did, it omitted adverse possession. As a justification for publication, consider what attorney sufficiently knows the English law of adverse possession antecedent to the related elements of chapter 95, Limitations. Without it, 95.16 and 95.18 make adverse possession seem a like right instead of a remedy. Lacking knowledge of Florida’s English law, sheriffs arrest adverse possessors of foreclosure-abandoned realty for grand theft, burglary, B&E, and related crimes. That seems tantamount to arresting a black driver of a Rolls Royce for a pretended illegal U-turn instead of “driving a Rolls while black.” It flies in the face of those statutes which seem not merely to permit, but actually to encourage adverse possession.
As for UPL (Unlicensed Practice of Law) , an ethics-challenged lawyer in Ft. Myers scribbled a UPL complaint against me for criticizing his handling of a foreclosure defense. He had taken as client a woman who had filed for dismissal of the foreclosure complaint for lack of prosecution. Then, he failed to appear at the show-cause hearing, thereby guaranteeing the case would proceed. I believed he had cheated the woman out of a valid dismissal. He reasoned the plaintiff would re-file and win, and she would owe additional interest and fees. He neglected to consider that foreclosure plaintiffs make so many errors he might find another cause for dismissal, the second time WITH PREJUDICE. That could possibly leave the woman with her house free and clear. And that means he really deserved criticism. More appropriately, she should have sued him for malpractice. Instead, he tried to get me imprisoned for 5 years on a phony felony UPL charge. The bar ditched his complaint, of course, as they should have when attorneys idiotically use UPL to stifle criticism.
Okay, so as a non-lawyer I don’t give legal advice or practice law. But that doesn’t keep me from pointing the finger at crooked lawyers for malpractice. It also doesn’t mean that only attorneys have the necessary competence to give good legal advice, or that people won’t get their lives ruined for failure of their lawyer to give them good advice. I have thought hard lately about filing a RICO complaint against every bar member in the state for using UPL to create a legal services monopoly and stifle exercise of the US First Amendment and Florida’s Article I Section 4 rights. I see no reason why people like Michael Olenick should continually have to disclaim attorney status and avoid people seeking law help so he doesn’t get nailed for UPL. And HEY, I don’t like the pressure either. In spite of the frivolous nature of that hand-scrawled UPL complaint, it still made my sphincter pucker. I probably wouldn’t survive 5 years in prison and I definitely don’t need the litigation hassle.
The Supreme Court should license attorneys to “practice” ONLY in certain areas of law, AFTER board certification in those areas. Otherwise, they shouldn’t be trusted managing legal affairs for the public. AND, UPL should apply only to licensed attorneys or those who specifically claim to have licensed or authorized status. Furthermore, ANYBODY should have the right to take the bar exam and become licensed without attending a formal law school. For everybody else, caveat emptor applies. Ooops, did I just give unsolicited advice? Legal advice? Dammit!