Now in Legal Rebels:
Posted Oct 15, 2010 03:45 pm CDT
An unprecedented national furor over a deluge of defective filings in mortgage foreclosure cases largely centers on a single unlikely case.
Nicolle Bradbury admittedly can’t afford to pay the $474 monthly mortgage on her humble Maine home after losing her job. But she won the mortgage foreclosure lottery when a volunteer lawyer picked her file, more or less randomly, at Pine Tree Legal Assistance, according to the New York Times.
A former lender lawyer who still regrets his longtime role in foreclosing on homes put up as security for small business loans, her attorney, Thomas Cox, 66, saw the case as an opportunity to fight back on the side of right and justice–and he had the expertise to pull out the stops.
Although the foreclosure had been approved by the time Cox got the case, leaving unresolved only a determination of exactly how much his client owed, Cox followed up on another lawyer’s deposition of Jeffrey Stephan, a “limited signing officer” for GMAC Mortgage who attested to the accuracy of the documents in the file.
“When Stephan says in an affidavit that he has personal knowledge of the facts stated in his affidavits, he doesn’t,” Cox told the judge in a post-deposition filing in Bradbury’s case earlier this year. “When he says that he has custody and control of the loan documents, he doesn’t. When he says that he is attaching ‘a true and accurate’ copy of a note or a mortgage, he has no idea if that is so, because he does not look at the exhibits. When he makes any other statement of fact, he has no idea if it is true. When the notary says that Stephan appeared before him or her, he didn’t.”
Unlike jurists in some other foreclosure cases, who have been reluctant to put the brakes on factually meritorious actions based on defective documents, Judge Keith Powers of the 9th District Court of Maine wasn’t persuaded by GMAC’s argument that focusing on what was lacking in the lender’s filings was simply a “dodge.”
Although he didn’t find the mortgage lender in contempt, Powers did require GMAC to pay a $27,000 penalty to Cox, reflecting the estimated cost of his work on the Stephan deposition and related work for Bradbury. He also rejected GMAC’s effort to obtain the foreclosure immediately without a trial.
It has now been two years since Bradbury last made a mortgage payment. Had the paperwork been correctly filed, she almost undoubtedly would have lost her home, admits Geoffrey Lewis, another lawyer handling her case.
A lawyer for the lender and mortgage holding company that owns Bradbury’s loan didn’t respond to the newspaper’s requests for comment.
ABAJournal.com: “6 Law Firm Notaries Lose Office, Suit Filed in Probe of Fake Lawyer Signatures on Foreclosure Docs”
Bloomberg: “Washington Policy Makers Resist Calls for a Big Fix in Foreclosure Crisis”
Bloomberg (opinion): “Foreclosure Error May Lead to Break-In by Bank”
Washington Post: “It’s speed vs. skepticism for Fla. judges facing avalanche of foreclosure cases”