Archive for August 10th, 2011

Non-Lawyers Giving Legal Advice on Foreclosure Defense

The information I post on this blog is accessible to the public, and I’m fine with that.  I want Florida homeowners to be aware of the issues that arise in foreclosure cases and, more generally, various political issues.  In today’s business world, knowledge is power, and without knowledge, we’re all doomed to be crushed (by big banks and a largely corrupt system spearheaded by Wall Street). 

In recent months, I’ve come to realize my posts on this blog are sometimes copied and pasted and posted by others, and generally, I’m okay with that.  If people want to share my thoughts, I see that as a compliment.  Recently, however, I’m seeing my posts being copied and pasted verbatim, without citing me, by non-lawyers who are trying to use the information I provide to give homeowners legal advice on defending foreclosures.  Sometimes, the information being posted is horribly wrong and very misleading.  I’m very concerned, so much so that I’m writing this post.   

Do I write this blog to help educate the homeowners and the public at large?  Absolutely.  Does that mean that anyone reading these posts is qualified to teach others how to defend foreclosure cases?  Absolutely not. 

I’ve worked very hard my entire career to prepare/educate myself to litigate lawsuits such as the foreclosure cases I now defend.  I keep myself abreast of emerging case law, I communicate with other lawyers in the industry on a daily basis … I do everything possible to litigate as well as possible.  For any non-lawyer to think he/she can read a few posts and start giving advice to the public is horribly misguided.  In fact, in many instances, I’m concerned this constitutes the unlicensed practice of law, which can be deemed a criminal offense in Florida.

To illustrate, I’ve recently come across a website that encourages Florida homeowners to “take back their homes.”  The site is run by a non-lawyer who seems adamant on convincing the public that homeowners should get to keep their homes, free and clear of mortgages.  Among other things, he tells homeowners that the most important criteria to consider in retaining a foreclosure defense lawyer is whether the lawyer will take the case on a contingent fee.  Apparently, this website author would have his readers believe that getting a house free and clear (eliminating the mortgage) for homeowners is so likely that foreclosure defense attorneys should be willing to take cases on a contingent fee. 

In theory, this “advice” may sound great.  Who wouldn’t want a free house?  Of course, that’s precisely the problem.  This non-lawyer is espousing a result that sounds very appealing but is terribly impractical and horribly misguided. 

I’m not going to lie.  Is it theoretically possible for a mortgage to be “eliminated” in the process of defending a mortgage foreclosure case?  Sure.  However, the chances of that in any given case are so infinitesimally small (and often the result of random luck, not any pre-planned defense strategies) that it is not something worth discussing, much less planning a defense strategy around. 

Let’s put it this way.  I’ve been defending foreclosure cases as aggressively as anyone in Florida, perhaps the country.  Don’t you think if there was any reasonable chance of getting my clients a free house that I’d be incorporating that approach into my defense strategies?  I’d love to get my clients a free house.  Hell, I’d love to get a free house for myself.  But I’m not going to blow smoke to people, giving false hope where it isn’t warranted, and I’m certainly not going to do so just because it would help me collect a fee.  There’s right and there’s wrong, and misleading consumers is wrong. 

I know there are some lawyers in the industry who incorporate a contingent fee into their fee agreements with homeowners.  However, I know of no lawyers who charge a straight contingent fee – those who charge these fees view them as a “bonus,” something in addition to the hourly rates or monthly fees charged by that firm.  I’ve spoken out against those types of fee agreements before, so I see no reason to do so again, as that’s not the point.  The point, in my view, is that I cannot envision a scenario where a competent foreclosure defense attorney is going to charge a contingent fee, without any other fees, to defend a foreclosure case.  Hence, if anyone is encouraging you to find a lawyer who will do so, I strongly encourage you to take a moment and evaluate with whom you’re communicating.  Unfortunately, there are a lot of non-lawyers passing off advice as lawyers, and often, this advice is terribly misleading and, possibly, a criminal violation of Florida’s prohibition against the unlicensed practice of law.

Mark Stopa

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Honest, Disturbing Memo from Florida’s Assistant Attorney General

Andrew Spark, an Assistant Attorney General with Tampa’s Economic Crimes Division, just disseminated a refreshingly honest, 16-page memo expressing his concerns about events in Florida regarding the AG’s office. 

Mr. Spark begins the memo with a telling introduction:

[T]he people of the State of Florida are entitled to fair and honest government, independent of personal connections and powerful interests, and I have decided to speak out.

He then expressed well-founded concern about how Mary Leontakianakos, the former Director of Economic Crimes, has taken an employment position with foreclosure mill Marshall Watson – the same Marshall Watson that the AG’s office just investigated and the same Marshall Watson forced to pay a $2 million fine.  What troubled Mr. Sparks, as he explained in the memo, wasn’t just Leontakianakos’ employment, but the fact that she and Marshall Watson have been trying to hide her employment from the public. 

But that’s just the tip of the iceberg. 

Mr. Sparks shed light on ProVest and other process servers, who are notorious in the foreclosure industry for deceiving courts about the legitimacy of service of process to assist banks in foreclosure cases. 

Mr. Sparks lamented the Florida AG’s failure to prosecute lawsuits.  In his words: 

Prosecutors are in court all of the time, on a virtually daily basis, and civil litigators are also in court all the time.  On the other hand, since [current Florida AG Pam] Bondi has taken over, the 30 or so attorneys of the Economic Crimes Division have filed a total of approximately only 15 lawsuits. … Even when we do file suit, we often take pains not to take the lead … None of the lawsuits are against sizable companies such as Lender Processing Services or ProVest …

The paucity of lawsuit filings, and what is effectively concomitant toothlessness, is not something unique to Bondi’s tenure – it’s long been endemic to the Division of Economic Crimes.  The Division of Economic Crimes has long fostered an atmosphere in which … bold action is rare.  The people of the State of Florida have the right to better, but under its current management, the situation can only get worse.

Those are some of the highlights, but please read the memo for yourself.   As you do, remember – these are the thoughts of a current Assistant Attorney General in Florida.

Mark Stopa

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