Under a New Court Rule, Foreclosure Attorneys Can Be Disbarred and Prosecuted for Filing False Documents

The Chief Judge of New York’s courts has implemented a new Rule that requires every attorney representing a bank in a foreclosure action to file a signed affirmation (click here for a sample affirmation) swearing that he or she took “reasonable” steps to verify the accuracy of the documents filed in the case.

In a statement, New York Chief Judge Jonathan Lippman said he was convinced the courts were seeing “systemic structural failings” in the foreclosure process, and he said judges and lawyers have a responsibility not to close their eyes to paperwork errors — even if they seem minor.

In the newly required affirmation, foreclosure attorneys must now swear under the penalties of perjury that they have communicated with a representative of the foreclosing bank and that they have personally reviewed all documents and records related to the case and made “other diligent inquiry” as necessary to confirm the accuracy of the documents.  The attorney must swear that “to the best of my knowledge, information and belief, the Summons and Complaint and all other documents filed in support of this action for foreclosure are complete and accurate in all relevant respects.”

The new rule is effective immediately and applies to both new cases and foreclosure actions currently pending in New York courts.  It is the first rule of its kind in the nation.

“You are talking about tremendous consequences. You are talking about taking people’s homes,” Judge Lippman said. “Those papers have to be accurate. They have to be credible.”

“This new filing requirement will play a vital role in ensuring that the documents judges rely on will be thoroughly examined, accurate, and error-free before any judge is asked to take the drastic step of foreclosure. We want to make sure that everyone is focusing like a laser on these particular types of proceedings,” he said. “It puts them on notice. That’s what this is all about. We all have to make doubly sure that we are doing what we should be doing in the first place.”

If the affirmation submitted by a foreclosure attorney is discovered to be false, the attorney may be referred to the Attorney Disciplinary Committee, and depending on the severity of the offense and the attorney’s prior history of disciplinary violations, may result in the attorney being disbarred

Disbarment, however, may be the least of the dishonest attorney’s problems.  By signing a false affirmation, the attorney has committed the felony of perjury.  If the attorney is guilty of perjury in a foreclosure case, he or she is also guilty of the felony of fraud (lying for the purpose of monetary gain) and the felony of attempted grand larceny for trying to take someone’s home under false pretenses without the legal right to do so.  If the foreclosure is completed and the bank seizes the home, the felony of attempted grand larceny would give way to the more serious felony of grand larceny because the home was actually stolen.  And let us not forget the constant companion of grand larceny, felony possession of stolen property

Moreover, if anyone else is involved in the falsification of the attorney’s affirmation – such as the bank’s representative that supplies information to the attorney — the attorney, bank representative and other persons can be charged with the felony of conspiracy.  

Proving that other persons were involved in the falsification of the attorney’s affirmation is not as difficult as it may seem.  Once the dishonest attorney has been arrested and charged with three or four felonies (perjury, fraud, and either grand larceny or attempted grand larceny and possession of stolen property) and is facing a long prison sentence, the attorney will probably do absolutely anything to save his or her own hide.  In exchange for immunity from prosecution for conspiracy and/or a reduced sentence for the other three or four felonies, the crooked attorney will jump at the chance testify against anybody that was even remotely involved, or appeared to be involved, in the crimes. 

All of the above crimes committed when a foreclosure attorney signs a false affirmation are violations of both New York State and Federal criminal laws.  Serious and repeated violations should be prosecuted in Federal Court where longer prison sentences are available. 

It remains to be seen whether judges, attorney disciplinary committees, district attorneys and U.S. Attorneys will take advantage of Judge Lippman’s tough new rule, to rid the system of criminal foreclosure attorneys and their accomplices.  The major banks have legions of attorneys and lobbyists using their power and influence to stop enforcement of laws against corrupt foreclosure attorneys.  If they are successful it will be up to the public to force officials to enforce the laws through organized political action.  We hope that will not be necessary. 

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