In reaction to the Affidavit “robo-signer” problem, the Cuyahoga County Court, and three individual judges in Franklin County have enacted new requirements, which have created serious concerns and difficulties for foreclosure plaintiffs and their attorneys.
In Cuyahoga County, the court has adopted a requirement that the plaintiff’s attorney personally execute and file an affidavit testifying that the attorney has communicated with a representative of the plaintiff, who informed the attorney that he/she: (a) has personally reviewed the documents and records relating to the case; (b) has reviewed the pleadings and all other papers filed in the case in support of the foreclosure; and (c) has confirmed the factual accuracy of those court filings.
The court has been issuing orders for the plaintiff’s attorney to execute and file the attorney’s affidavit by a deadline, usually 30 days after the hearing, and that the case may be dismissed upon the failure to file such an affidavit.
I convened meetings with representatives of the 12 largest law firms representing plaintiffs in foreclosures, to discuss the new requirement. The firms questioned whether the requirement contravenes the attorney’s duties under the Ohio Code of Professional Conduct, and whether the court is within its constitutional power to enact such a requirement. In addition, the Order contains vague and overbroad wording. The firms as a group retained Richard Koblentz, a prominent attorney who specializes in ethical issues, to provide an opinion letter. Mr. Koblentz issued his opinion letter containing his clear conclusion that the attorneys may not file the affidavit contemplated by the court, without violating the attorneys’ ethical duties. Therefore, all of the firms are in agreement that the Court has improperly imposed a requirement with which the attorneys cannot comply.
Mr. Koblentz’s letter was delivered to Judge Eileen T. Gallagher, who chairs the judges’ foreclosure committee for the court. Judge Gallagher convened a meeting on December 7, 2010, attended by representatives of the 12 foreclosure firms, as well as an equal number of consumer advocates. The court received oral comments from all of the parties, and stated that additional comments may be submitted in writing by Tuesday, December 14, 2010. The attorneys requested that cases not be dismissed while the court might be reconsidering its rule. Judge Gallagher suggested that the attorneys file motions to enlarge the time within which the affidavits may be submitted. However, some of the courts judges have been overruling such motions, and there is no guaranty that the case will not be dismissed.
In Franklin County, three individual judges issued identical standing orders for foreclosure cases, requiring that the attorney for the plaintiff file a certification that the attorney has personally verified that the plaintiff is the holder of the original note, which is in the plaintiff’s possession. Although the Franklin County certification is not in the form of an affidavit, nevertheless, it also invades the attorney-client privilege and improperly requires the attorney to submit the attorney’s own testimony in support of the merits of the plaintiff’s case.
The Wrongful Imposition by the Courts
The new requirements order the attorney to testify as to attorney-client communications. Especially in view of the overbroad and vague wording of Cuyahoga County’s required attorney affidavit, waiving the attorney-client privilege for this purpose could open the door to exposure on the part of both the attorney and the client in a variety of ways, some of which might not be foreseeable, and can create intended or unintended adverse consequences to the mortgage holder in the litigation.
Weltman, Weinberg & Reis’ Position
Although we will continue our efforts to persuade the courts to rescind these new requirements, we believe that the courts have exceeded their authority and that it is appropriate and necessary to file a writ of prohibition in order to seek a ruling from the Ohio Supreme Court requiring the courts to cease enforcing these new requirements. The group of firms referenced above are jointly retaining an independent counsel to do so, and we expect that the writ of prohibition will be filed next week. In the meantime, we will file motions in the Cuyahoga County cases in question, asking for an enlargement of time to file the Affidavit, until the controversy is resolved.
We are hopeful that the Ohio Supreme Court will give this matter its prompt attention. Unfortunately, it will not be possible to avoid the dismissal of cases in the event individual judges choose to do so. If you are in disagreement with the approach being taken by these 12 firms, please contact Larry Rothenberg immediately.
WWR will keep you advised of further developments.
For copies of Richard Koblentz’s opinion letter regarding Cuyahoga County’s requirement,go here. For his opinion letter regarding the Franklin County requirement, go here.
If you have any questions on this matter, please contact Mr. Larry R. Rothenberg, Esq. Larry is the partner-in-charge of the Cleveland real estate and foreclosure department of Weltman, Weinberg & Reis Co., LPA (WWR). He is the author of the Ohio Jurisdictional Section contained within the treatise, “The Law of Distressed Real Estate”, and was a contributing author to “Ohio Foreclosures, What You Need to Know Now”, published by The West Group. He can be reached directly at 216.685.1135 or via email firstname.lastname@example.org.
Koblentz letter in opposition: