Do foreclosure mill lawyers have a real duty of performing due diligence before they send, file or argue anything in court?

The plain answer is no. I have tried a number of times to hold foreclosure mills accountable. But unless I was able to allege and use exhibits to support the allegations that the lawyer knew (i.e. personal knowledge) that he/she had no client, that there was no claim, that the claims were a fraud upon the court, etc., the lawyer was always held to be protected by litigation immunity.

As far as I have been able to determine, the duty of due diligence is either ill-defined or not defined.

Basically, a lawyer can say anything unless he personally knows that it is untrue. The lawyer in that context is seen as merely the mouthpiece for his lying client. But somebody on Wall Street figured out that the lawyer doesn’t even need to have a client.

As long as he/she thinks (or has reason to think or no reason to not think) there is a client and he does not personally know that there is no client, then he is allowed to speak as though the client existed and as though the assertions are true.

Once upon a time, this was regulated by norms and traditions. Lawyers would not stretch the truth that way for one simple reason — they would need to appear in front of the same judge at a later time. If the judge did not repose trust in the sincerity and credibility of the lawyer, the lawyer would be disbelieved. This has fallen apart but only in foreclosure litigation where the current judicial bias causes most courts to wink and nod.

The solution is political. First, shine a spotlight in a credible way with at least some members of the press following your accusations. Then build it up with evidence — quotes from transcripts and orders.

Believe me, nobody is comfortable with the current situation. But they do believe that there is no harm. And that is because homeowners keep admitting to and referring to a loan and admitting to and referencing a third party as a servicer. Once you admit that you have an unpaid debt that is in default, you can’t get relief in normal circumstances by technical deficiencies in the paperwork. If it was otherwise, that would increase the risk to all creditors of every type which is the exact opposite of doctrine and law for centuries. 

4 Responses

  1. A few years ago I received a foreclosure notice from an attorney in NC, just weeks after Wells Fargo had dropped a foreclosure due to the fact that I brought the account current. (Different foreclosure attorney) I called the name at the top of the notice and talked straight with him… pointed out the things “we BOTH knew” such as the fact that there was no client, and that WF absolutely did not own or hold the mortgage in question. I could tell that he genuinely didn’t have a clue what I was talking about but he was very interested in what I was saying. Within a couple of weeks I received a notice that this case was being “back-burnered” for now. I really think that he thought my case was unique when we talked. That attorney left the foreclosure mill soon after. I can’t say it had anything to do with me, but I can’t help but believe that some lawyers are people too. An honest, simple education to some attorneys as early as possible may tickle their conscience and give them enough doubt to consider their life choices, or at the very least they may decide to look for an easier target.
    WF still has not been able to take my home and we are going on 4 years. Just some thoughts from someone who could not find competent legal representation in NC who seemed to know what I was talking about.

  2. Man do you have that correct!!! I still go back to the quote”
    Wall Street” runs this country in conjunction to the big banks!!! Alot is political motivated…but the upper hand still Wall Street! Till the rules of mortgage lending changes the same Ponzi scam will continue. !! People have to fight back

  3. Opposite counsel immunity should not applying to them if they are miss -representing the court in order to get a favorable judgment, most of the time it occurs when the Servicer’s Attorney implies they represent The beneficiary/investor and none employee from this one make any legal statement in regards the house’s documents neither has a legal document to validate its position as Beneficiary/Investor.

  4. Litigation immunity…would be laughable, if not so destructive. All these lawyers know what a ruse this stuff is.

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