Legal Mal Suit Against Foreclosure Lawyers Proceeds

A woman claiming she had to sell her home because of her lawyers’ botched foreclosure work can move forward with her legal malpractice and fraud suit, a federal judge has ruled.

Christine Bernstein sued Keaveney Legal Group along with lawyers James P. Keaveney and Joshua Thomas for violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law common-law fraud, and violations of the federal Bankruptcy Abuse Prevention and Consumer Protection Act.

Bernstein claimed the firm never obtained a loan modification from her bank as she requested, but billed her just the same. She also claimed she had to work with the bank herself, and ultimately sold her home for less than she would have received if it wasn’t in foreclosure to cover the fees that had accrued on her mortgage.

The argument over whether Bernstein’s legal malpractice claims should survive hinged on the validity of her certificate of merit indicating that the defendants’ legal work was subpar, according to U.S. District Judge Jan E. DuBois of the Eastern District of Pennsylvania’s opinion.

The firm and lawyers argued Bernstein’s certificate was invalid because she submitted only one for multiple defendants and it did not engage in an independent review of the facts of the case. DuBois, however, rejected the defendants’ arguments.

Citing the 1998 Eastern District case of Ramos v. Quien, DuBois wrote, “‘To the extent that the purpose of the COM requirement is to ensure that professional liability claims are meritorious, [a single COM addressing multiple defendants] satisfie[s] that purpose.'”

DuBois reasoned that Bernstein’s certificate sufficed for all parties.

As for their second claim, DuBois said Rule 1042, pertaining to the certificate of merit, “does not require that the COM be executed by someone with actual knowledge of the facts of the case, and defendants point to no case law supporting dismissal on this basis. Rather, courts have dismissed cases only when the plaintiff made ‘no effort’ to comply with Rule 1042.”

The judge also denied the defendants’ motion to strike Bernstein’s request for punitive damages.

“Plaintiff alleges that although she paid defendants more than $8,000 to assist her with her foreclosure, defendants failed to file certain documents on her behalf with the court and with Santander. Whether the alleged conduct is outrageous is a fact question,” DuBois said.

Bernstein is represented by Mark L. Rhoades of Gowen Rhoades Winograd & Silva.

“With this decision, those who have been subjected to unfair trade practices such as aggressive sales tactics can rest assured that the protections of the Pennsylvania Unfair Trade Practices and Consumer Protection Law are alive and well.  We look forward to starting the discovery process and seeking a full recovery for Ms. Bernstein.  Given today’s ruling, that recovery could include punitive damages as well as trebled damages and attorneys’ fees under the UTPCPL,” Rhoades said.

The defendants are represented by Cecil Jones of Marks, O’Neill, O’Brien, Doherty & Kelly. Jones did not respond to a request for comment.

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