NYT — Judges Berate Bank Lawyers in Foreclosures — Thoughts on Burden of Pleading, Proof, and on Investigation

Today’s NYT has an article on increasingly judges holding lawyers accountable for the defective foreclosures.

Key para (as well as listing of abuses)

“More broadly, the courts in New York State, along with Florida, have begun requiring that lawyers in foreclosure cases vouch for the accuracy of the documents they present, which prompted a protest from the New York bar. The requirement, which is being considered by courts in other states, could open lawyers to disciplinary actions that could harm or even end careers.”

Maybe this will help wake the bar up to participate more in pro bono — particularly as they realize the impact on the bar’s reuptation and ability to self-regulate that this general scandal represents.

I hope, more generally, that it will cause courts and start to think about who should bear the burden of pleading and proof in kind of cases in which large numbers are self-represented.

As a general matter in such cases, the burden should be on that party that most easily plead/prove.  When, in almost all of a class of cases, one side or the other does not have a lawyer, it makes sense to consider moving at least some of the burden to the other side.  Similarly, when there is a history of abuse by one side, it makes sense to require greater pleading/proof by that side.

Examples might include:

  • More detailed proof of service in eviction cases
  • Pleading/proof of ownership in forwclosure and other areas with potential bundled debt
  • Unemployment, welfare cases, in which the government is on one side, and the party seeking benefits almost always does not have a lawyer.

Some of these changes can probably be made by court rule or standing order, since they are so procedural.

In similar spirit, Maryland has put in place an emergency change in rules that makes it easier for courts to investigate and deal with cases in which the matters pleaded as to foreclosures of lien instruments, are, shall we say, in doubt.  Read in full, but here are two sample paras:

(b)(2)  If the court has reason to believe that an affidavit filed in the action may be invalid because the affiant has not read or personally signed the affidavit, because the affiant does not have a sufficient basis to attest to the accuracy of the facts stated in the affidavit, or, if applicable, because the affiant did not appear before the notary as stated, the court may order the party to show cause why the affidavit should not be stricken, and, if it is stricken, why the action should not be dismissed or other relief granted.

and

(c)  Special Masters or Examiners
The court may designate one or more qualified Maryland lawyers to serve as a part-time special master or examiner to screen pleadings and papers under section (a) of this Rule,
conduct proceedings under section (b) of this Rule, and make appropriate recommendations to the court.  Subject to section (d) of this Rule, the costs and expenses of the special master or examiner may be assessed against one or more of the parties
pursuant to Code, Courts Article, §2-102 (c), Rule 2-541 (i), or Rule 2-542 (i).  With his or her consent, the special master or examiner may serve on a pro bono basis.

There will be many more such orders, rules, and statutory changes needed.

About richardzorza

I am deeply involved in access to justice and the patient voice movement.
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1 Response to NYT — Judges Berate Bank Lawyers in Foreclosures — Thoughts on Burden of Pleading, Proof, and on Investigation

  1. Pingback: Court Simplification — Burden of Production of Rent Payment Records | Richard Zorza's Access to Justice Blog

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