Is your bank’s foreclosure lawyer legally before the court?
The appearance of counsel before the court in litigation is tightly controlled. As one court has observed: “Under Florida law the withdrawal and substitution of counsel are matters governed by rather exacting ethical and legal requirements.” For Florida state courts, the rules for becoming an “attorney of record” (being properly before the court) are set out in the Florida Rules of Judicial Administration, especially Rules 2.505 and 2.515. Lawyers can not just pop in and out of court cases and, when they do, there are supposed to be serious consequences for failure to adhere to the rules. Pleadings and motions filed by an attorney not ‘of record’ can be deemed a NULLITY and STRICKEN from the court file. [ Pasco County v Quail Hollow.doc ]. This is of particular interest in foreclosure cases [http://www.celiadeifik.com/im-facing-foreclosure-what-do-i-do-myths-and-misconceptions-about-foreclosure-and-mortgage-distress/ because…
bank’s attorneys have been cutting corners and disregarding these rules, whether to save money or because they couldn’t comply is unclear. Some law firms which originally filed a lot of foreclosures closed up shop for one reason or another in the last few years, but may have done nothing to formally withdraw from those cases. Consequently, law firms, such as Adorno & Yoss LP or The Law Office of David J. Stern, are still technically ‘attorneys of record’ in many cases. Other law firms seemingly took over these cases but didn’t bother to file Motions for Substitution of Counsel along with written consent of the client bank, so as to obtain the required Orders of Substitution, as the rules require. They just started filing papers and showing up in court. Homeowners didn’t know the difference. It may be these lawyers were hired by a mortgage servicer, not the named Plaintiff bank and found it burdensome to get consent of the actual Plaintiff. It may be they were just too busy. It’s not clear. Some of these law firms have tried to paper over the problem by filing a ‘Notice of Appearance as Co Counsel.’ How can you be co-counsel for a firm that no longer exists? Or which was publicly fired by the client bank two years ago?
The Rules of Judicial Administration are clear that where papers are filed with an intent to defeat the rules, the Court may strike all such papers. It’s up to the homeowner to bring this to the attention of overburdened judges.
This also raises particularly interesting questions where the improper filings have gone on for very extended periods. If those improper papers are indeed stricken as nullities and the remaining, properly filed pleadings, are say, from dates prior to early 2011, is the case ripe for dismissal for lack of prosecution? This is a more complex question with no clear answer at this time.
I’m awaiting rulings in a couple of cases with variations on these issues.