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Monthly Archives: October 2014

What Homeowners Must Know Before Fighting Foreclosure Pro Se

30 Thursday Oct 2014

Posted by BNG in Federal Court, Foreclosure Defense, Judicial States, Legal Research, Litigation Strategies, Non-Judicial States, Pro Se Litigation, State Court, Your Legal Rights

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homeowner, homeowners, pro per, pro se

Representing Yourself

It’s not easy to decide whether to represent yourself. Before you make a decision, take some time to consider whether your personality, work ethic, and lifestyle are suited for the task ahead. The following questions should help you assess your situation:

* Do you have the time to learn the substantive and procedural aspects of the laws involved?

* Is your case relatively straightforward?

One way to make this determination is to attend a free legal clinic in your area. Call the clerk’s office of your local court and ask if there are free legal clinics or a Volunteer Lawyer for a Day program. If there is one, attend it and discuss your case with the lawyer present. You should come away understanding more about the complexity of your case and whether or not you feel able to represent yourself.

* Do you feel comfortable negotiating with the opposing party (or the lawyer representing the opposing party)

  • If your case involves going to court, are you willing to:
  • speak in public?
  • understand the legal aspects of your case well enough to explain it to a judge?
  • meet deadlines?
  • perform legal research and understand court rules, cases, and statutes?
  • produce documents to file in court?
  • take the time and effort to understand and respond promptly to papers issued by the court?
  • respond to papers received from the opposing party?
  • free up time in your schedule to attend court hearings?

What it Means to Represent Yourself in a Legal Proceeding

If you are involved in litigation and decide to represent yourself, you will be referred to as a pro se litigant. While a court will hold you to the same standards as a lawyer, most courts will be less stringent with mistakes made by pro se litigants, and might even have a staff attorney at the courthouse to guide you through some of the procedural requirements. However, not all courts are helpful and can in fact be hostile to pro se litigants. Keep in mind that should you come to a point during the legal proceedings where you would prefer to be represented by a lawyer, you may have the option to do so.

Where to Find Help

In addition to the clerk’s office mentioned above, there are several nonprofit institutions and other organizations that may be able to help with your case and provide guidance and resources. In extremely rare cases, they may even offer to represent you in court.

Other good resources include legal form books. Form books contain legal forms that lawyers use in drafting a legal document. Legal forms come in templates with suggested language and must be tailored to fit the situation. There are many types of legal forms available, categorized by subject, procedure, court, or state. Bear in mind that the forms are not meant to be used as boilerplate language. You will need to perform additional research to make sure that the form is appropriate to the situation and complies with current law. Here are some sites that have legal forms:

  • Findlaw Forms
  • LawInfo.com’s Free Legal Forms
  • The ‘Lectric Law Library Forms Room
  • LexisOne List of Free Forms
  • Internet Legal Research Group’s Public Legal Forms
  • US Court Forms
  • US Legal Forms
  • Washlaw Legal Forms

You can also visit your local law library (at a law school or courthouse) to find legal form books.

Additionally, Nolo.com is another wonderful legal resource. Nolo publishes print, software, and online manuals covering a wide variety of legal issues, including materials on taxes, employment, intellectual property, real estate and how to operate a small business. The publications are written for the layperson and are terrific do-it-yourself legal guides.

When Homeowner’s good faith attempts to amicably work with the Bank in order to resolve the issue fails;

Home owners should wake up TODAY! before it’s too late by mustering enough courage for “Pro Se” Litigation (Self Representation – Do it Yourself) against the Lender – for Mortgage Fraud and other State and Federal law violations using foreclosure defense package found at http://www.fightforeclosure.net “Pro Se” litigation will allow Homeowners to preserved their home equity, saves Attorneys fees by doing it “Pro Se” and pursuing a litigation for Mortgage Fraud, Unjust Enrichment, Quiet Title and Slander of Title; among other causes of action. This option allow the homeowner to stay in their home for 3-5 years for FREE without making a red cent in mortgage payment, until the “Pretender Lender” loses a fortune in litigation costs to high priced Attorneys which will force the “Pretender Lender” to early settlement in order to modify the loan; reducing principal and interest in order to arrive at a decent figure of the monthly amount the struggling homeowner could afford to pay.

If you find yourself in an unfortunate situation of losing or about to lose your home to wrongful fraudulent foreclosure, and need a complete package that will show you step-by-step litigation solutions helping you challenge these fraudsters and ultimately saving your home from foreclosure either through loan modification or “Pro Se” litigation visit: http://www.fightforeclosure.net

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What Homeowners in Foreclosure Needs to Know Before Hiring a Lawyer

30 Thursday Oct 2014

Posted by BNG in Foreclosure Defense

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Like doctors and other professionals, lawyers range from general practitioners to specialists. Typically, lawyers who offer general legal services concentrate on legal issues concerning the general public—for example, wills or real estate transactions. However, if you are seeking a lawyer because of legal problem associated with your mortgage loan foreclosure, you should look for a specialist who focuses on real estate law, just like a business man who intends to set up a business should find a lawyer with experience in corporate and tax matters.

Finding the right lawyer

There are several ways to find a lawyer:

Personal Recommendations

The best way to find a good lawyer is by word-of-mouth. Ask your family, friends, or colleagues for recommendations. If you previously hired a lawyer for another situation, ask her for references in the field you need. Don’t stop at getting names and contact information; press the referrer for reasons why he thinks the lawyer is good.

(Organizations that might provide legal representation without a fee are covered under the our previous post “How Homeowners in Foreclosure Can Find Legal Help”.

Advertisements and the Yellow Pages

You may come across advertisements for a lawyer’s services through tv, radio, magazines, newspapers, websites, or phonebooks. Remember that the advertisement has little to do with the lawyer’s abilities. You should thoroughly research the lawyer by following the steps outlined below.

Your Insurance Company

If someone has brought a lawsuit against you, check with your insurance company to see if you have liability insurance for the situation at hand. If you do, your insurance company should provide you with the necessary legal defense and indemnify you if any money needs to be paid to the other party. In this case, you will be represented by the lawyer from the insurance company and will not need to seek a lawyer of your own.

Once you have a list of lawyers, research them as much as possible. The lawyer’s education background and the firm that the lawyer is associated with may be an indication of the quality of a lawyer’s practice, but the best indicator of a lawyer’s service is experience. Additionally, check your list of lawyers against a legal directory, a resource that contains peer ratings of lawyers, to see the opinions of others in the legal community. Martindale Hubbell is a highly regarded legal directory and is available online.

Initial Meeting With a Lawyer
Once you’re comfortable with your list, call each lawyer to set up an initial meeting. Apart from the where’s and when’s of the meeting, you should make sure to find out:

* approximately how long the meeting will take
* what documents you should bring
* whether the lawyer charges for an initial meeting (and if so, the amount and method of payment)
* whether the lawyer can provide you with a list of references from current or former clients

You should prepare so that the meeting stays focused, allowing you to gauge the lawyer’s response to your situation.

Gather all documents pertaining to the situation in a file. This includes printouts of any relevant emails and webpages. Additionally, note dates and times you received each document.

  • Write down everything you know about the situation, including:

* the nature of the actions that triggered the situation
* when and how you received any documents about the situation
* any relevant interactions you’ve had with anyone involved in the matter

* Prepare a list of questions. The lawyer will ask you a lot of questions to help her evaluate the strengths of your case; you should do the same to evaluate the lawyer.

Understanding Legal Fees

The lawyer should go over her fee arrangement during your initial meeting. Bills may run high and you must understand the various fee structures to avoid unpleasant surprises.

There are several ways you may be billed for a lawyer’s services:

  • Hourly fee: The most common fee structure, an hourly fee is a person’s hourly rate times the hours spent working on your case. Hourly rates will probably vary from lawyer to lawyer within a law firm, and from lawyer to non-lawyer. If money is an issue, ask whether a junior lawyer can work on the case while a senior lawyer reviews the final product. Make sure to get a breakdown of the hourly rates for each person who will work on your case, and an estimate on the length of time each person will spend on your case. The amount of work put into a case varies and it’s impossible to project a definitive amount; however, a good lawyer should be able to give you a ballpark figure based on her prior experience.
  • Retainer Fee: A retainer is an advance payment, or down payment, to be applied towards the hourly fees earned later. (Note: in some cases, a retainer fee also refers to the amount paid to an attorney on a regular basis to keep the attorney available for handling legal services.)
  • Fixed fee: A fixed fee is a flat amount that covers a specific legal service. For example, if you need help starting your business, a lawyer may charge you a fixed fee for helping you to incorporate.
  • Contingency fee: In a contingency fee arrangement, the lawyer only gets paid if she is successful in getting you an award of damages, whether through trial or settlement. A lawyer’s portion of the award is usually a fixed percentage of the total amount, depending upon the type of case involved.
  • Mixed Fee: A mixed fee arrangement combines contingency and hourly fees.
  • Costs: Fees go to the lawyer for her work, while costs cover the payments incidental to those services. For example, if you’ve hired a lawyer to help you incorporate your business, one cost will be the filing fee for the articles of incorporation. For purposes of a lawsuit, talk to the lawyer about advances for the costs associated with litigation.

The First Meeting

Plan to arrive 5 minutes early so that you can be ready as soon as the meeting starts. Bring your summary and file of documents. As you explain the situation be candid. Remember, the lawyer needs all of the information, good and bad, to assess your case and give you a useful road map of what lies ahead. Except in rare cases, lawyers are bound by professional rules to keep the initial meeting confidential, so you should not feel constrained. You should already know how long the meeting will last, so keep an eye on the time and make sure the lawyer addresses all of your questions.

Post-Meeting

After you’ve met with a few lawyers, compare how they approached your situation and think about whose counsel you valued the most. If you met with a lawyer who was personally recommended to you, don’t be surprised if you don’t like her as much as the recommender did. There are many different styles of lawyering, and you may not be as comfortable with some as you are with others.

If there are one or two lawyers with whom you connected, call their references and speak to former clients. Once you’re comfortable making the decision to hire a lawyer, make sure you have a written fee agreement to avoid billing surprises.

Lastly, don’t lose touch with your case just because you have hired a lawyer. Your lawyer works for you. You need to set the goals, and your lawyer will use his/her legal expertise to help you achieve them. The only way for you to make decisions about your case is to stay informed. You are the Homeowners!

When Homeowner’s good faith attempts to amicably work with the Bank in order to resolve the issue fails;

Home owners should wake up TODAY! before it’s too late by mustering enough courage for “Pro Se” Litigation (Self Representation – Do it Yourself) against the Lender – for Mortgage Fraud and other State and Federal law violations using foreclosure defense package found at http://www.fightforeclosure.net “Pro Se” litigation will allow Homeowners to preserved their home equity, saves Attorneys fees by doing it “Pro Se” and pursuing a litigation for Mortgage Fraud, Unjust Enrichment, Quiet Title and Slander of Title; among other causes of action. This option allow the homeowner to stay in their home for 3-5 years for FREE without making a red cent in mortgage payment, until the “Pretender Lender” loses a fortune in litigation costs to high priced Attorneys which will force the “Pretender Lender” to early settlement in order to modify the loan; reducing principal and interest in order to arrive at a decent figure of the monthly amount the struggling homeowner could afford to pay.

If you find yourself in an unfortunate situation of losing or about to lose your home to wrongful fraudulent foreclosure, and need a complete package that will show you step-by-step litigation solutions helping you challenge these fraudsters and ultimately saving your home from foreclosure either through loan modification or “Pro Se” litigation visit: http://www.fightforeclosure.net

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How Homeowners in Foreclosure Can Find Legal Help

30 Thursday Oct 2014

Posted by BNG in Federal Court, Foreclosure Defense, Judicial States, Legal Research, Litigation Strategies, Non-Judicial States, Pleadings, Pro Se Litigation, State Court, Trial Strategies, Your Legal Rights

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Tags

Legal Aid, Legal Aid by State, Legal Assistance, Legal Help, Pro Bono

If you are homeowner in foreclosure faced with a situation that needs legal attention, you basically have Two Options: handle the matter yourself or seek professional legal help.

Representing yourself in a legal proceeding may hold some initial appeal due to the cost of hiring a lawyer or your interest in taking control of the situation.

Before you decide to handle a legal matter yourself, however, you need to evaluate yourself to see whether you can are ready to handle the matter and whether you have access to the resources you will need to succeed.

While our program is designed to assit homeowners in pro se litigations, if you are considering handling the matter yourself, be forewarned that a seemingly simple issue can quickly grow complex if you are not well versed with the legal system. For this simple reason, we are publishing this post to assist homeowners who may not be familiar with the legal system even if they wish to use our program to fight their case. The legal resources contained within our program can also help Attorneys practicing in other areas, help a homeowener fight his/her foreclosure case, saving valuable research time as time is of the essense.

In most situations homeowners will be better off hiring a lawyer, who will assess the merits of your case, explain your options, and help you achieve the best result.

If you decide to seek professional legal help, you can hire a lawyer directly or, depending on your situation, request legal assistance from a nonprofit legal assistance organization such as Legal Aid or the Citizen Media Law Project.

Nonprofit Legal Assistance

Many lawyers and legal organizations provide pro bono work. In common usage pro bono refers to volunteer work done for the public good. In the legal field, lawyers who do pro bono work take cases for those who are disadvantaged and unable to secure legal assistance. Additionally, legal advocacy organizations (organizations that take on cases) usually provide pro bono representation for their clients.

There are a number of nonprofit institutions and other organizations that may be able to represent you or provide other legal assistance. Should the organization offer to represent you in court, you will be in the enviable position of enjoying free legal work done by lawyers passionately committed to the underlying causes of your situation. Note that these lawyers may be working on your individual case because they want to break new legal ground or advance the law in a particular way to benefit society as a whole. Thus, you will want to make your individual goals clear to them. More often than not, they will share your goals and you’ll be able to forge ahead.

THESE ARE THE LIST OF NONPROFIT LEGAL ASSISTANCE ORGANIZATIONS BY STATE

Nonprofit Legal Assistance Organizations in Arizona

The following organizations provide legal assistance to individuals and organizations in Arizona:

  • State Bar of Arizona
  • Maricopa County Bar Association
  • Pima County Bar Association
  • Southern Arizona Legal Aid
  • The Volunteer Lawyers Program
  • AZLawHelp.org
  • Community Legal Services
  • ACLU of Arizona

Nonprofit Legal Assistance Organizations in California

The following organizations provide legal assistance to individuals and organizations in California:

  • The State Bar of California
  • Alameda County Bar Association
  • The Bar Association of San Francisco
  • Contra Costa County Bar Association
  • The Lawyers Club of San Diego
  • Los Angeles County Bar Association
  • San Bernardino County Bar Association
  • San Diego County Bar Association
  • Santa Clara County Bar Association
  • Sonoma County Bar Association
  • ACLU of Northern California
  • ACLU of San Diego
  • ACLU of Southern California
  • California Volunteer Lawyers for the Arts
  • Bay Area Legal Aid
  • Central California Legal Services
  • East Bay Community Law Center
  • Greater Bakersfield Legal Assistance, Inc.
  • Legal Aid Foundation of Los Angeles
  • Legal Aid Foundation of Santa Barbara County
  • Legal Aid of Marin
  • Legal Aid of Napa Valley
  • Legal Aid Society of Orange County, California
  • Legal Aid Society of San Diego
  • Legal Aid of San Mateo County
  • Legal Aid Society of Santa Clara County
  • Legal Services of Northern California
  • Neighborhood Legal Services of Los Angeles County

Nonprofit Legal Assistance Organizations in Florida

The following organizations provide legal assistance to individuals and organizations in Florida:

  • The Florida Bar
  • Orange County Bar Association
  • Aid Society of the Orange County Bar Association
  • Palm Beach County Bar Association
  • St. Petersburg Bar Association
  • Volusia County Bar
  • ACLU of Florida
  • Volunteer Lawyers for the Arts, Pinnellas County Arts Council
  • Bay Area Legal Services (Tampa)
  • Central Florida Legal Services
  • Florida Legal Services, Inc.
  • Gulf Coast Legal Services
  • Jacksonville Area Legal Aid
  • Legal Aid Society of Palm Beach County
  • Legal Services of Greater Miami
  • Legal Services of North Florida
  • Three Rivers Legal Services

Nonprofit Legal Assistance Organizations in Georgia

The following organizations provide legal assistance to individuals and organizations in Georgia:

  • State Bar of Georgia
  • Atlanta Bar Association
  • ACLU of Georgia
  • Georgia Lawyers for the Arts
  • Atlanta Legal Aid Society, Inc.
  • Georgia Advocacy Office
  • Georgia Legal Services Program
  • Legal Assistance in Georgia

Nonprofit Legal Assistance Organizations in Illinois

The following organizations provide legal assistance to individuals and organizations in Illinois:

  • Illinois State Bar
  • Chicago Bar Association
  • Cook County Bar Association
  • Peoria County Bar Association
  • ACLU of Illinois
  • Lawyers for the Creative Arts
  • Cabrini Green Legal Aid Clinic
  • CARPLS (Cook County)
  • Illinois Legal Aid
  • Legal Assistance Foundation of Metropolitan Chicago
  • Prairie State Legal Services
  • The Law Project

Nonprofit Legal Assistance Organizations in Indiana

The following organizations provide legal assistance to individuals and organizations in Indiana:

  • Indiana State Bar Association
  • Evansville Bar Association
  • ACLU of Indiana
  • Creative Arts Legal League (“CALL”)
  • Indianapolis Legal Aid Society
  • Indiana Justice Center
  • Aid Corporation of Tippecanoe County

Nonprofit Legal Assistance Organizations in Massachusetts

The following organizations provide legal assistance to individuals and organizations in Massachusetts:

  • Boston Bar Association
  • Massachusetts Bar Association
  • ACLU of Massachusetts
  • Volunteer Lawyers for the Arts of Massachusetts, Inc.
  • Community Legal Services and Counseling Center
  • Greater Boston Legal Services
  • Legal Advocacy and Resource Center
  • Massachusetts Legal Help
  • Massachusetts Legal Services
  • Merrimack Valley Legal Services
  • Neighborhood Legal Services (Lynn and Lawrence)
  • New Center for Legal Advocacy (Bristol and Plymouth County)
  • South Middlesex Legal Services

Nonprofit Legal Assistance Organizations in Michigan

The following organizations provide legal assistance to individuals and organizations in Michigan:

  • Macomb County Bar Association
  • Oakland County Bar Association
  • ACLU of Michigan
  • Legal Services of Eastern Michigan
  • Legal Services of Northern Michigan

Nonprofit Legal Assistance Organizations in New Jersey

The following organizations provide legal assistance to individuals and organizations in New Jersey:

  • New Jersey State Bar Association
  • Middlesex County Bar Association
  • ACLU of New Jersey
  • New Jersey Volunteer Lawyers for the Arts
  • Camden Center for Law and Social Justice
  • Legal Services of New Jersey
  • LSNJ Law

Nonprofit Legal Assistance Organizations in New York

The following organizations provide legal assistance to individuals and organizations in New York:

  • New York State Bar Association
  • Association of the Bar of the City of New York
  • Nassau County Bar Association
  • New York County Lawyers’ Association
  • ACLU of New York
  • New York Volunteer Lawyers for the Arts
  • Empire Justice Center
  • Legal Aid Society of New York
  • Legal Assistance of Western New York
  • Legal Services of the Hudson Valley
  • Legal Services for New York City
  • Nassau / Suffolk Law Services
  • Neighborhood Legal Services (Buffalo)
  • New York Legal Assistance Group
  • Queens Legal Services
  • South Brooklyn Legal Services
  • Western New York Law Center

Nonprofit Legal Assistance Organizations in North Carolina

The following organizations provide legal assistance to individuals and organizations in North Carolina:

  • North Carolina Bar Association
  • Mecklenberg County Bar Association
  • ACLU of North Carolina
  • North Carolina Volunteer Lawyers for the Arts (NCVLA)
  • Legal Aid of North Carolina
  • Legal Services of Southern Piedmont
  • North Carolina Justice and Community Development Center

Nonprofit Legal Assistance Organizations in Ohio

The following organizations provide legal assistance to individuals and organizations in Ohio:

  • Ohio State Bar
  • Akron Bar Association
  • Cincinnati Bar Association
  • Cleveland Bar Association
  • Columbus Bar Association
  • Cuyahoga County Bar Association
  • Lorain County Bar Association
  • ACLU of Ohio
  • Equal Justice Foundation
  • Legal Aid Society of Cleveland
  • Legal Aid Society of Columbus
  • Legal Aid Society of Greater Cincinnati
  • Ohio State Legal Services Association / Southeastern Ohio Legal Services

Nonprofit Legal Assistance Organizations in Pennsylvania

The following organizations provide legal assistance to individuals and organizations in Pennsylvania:

  • Pennsylvania Bar Association
  • Allegheny County Bar Association
  • Chester County Bar Association
  • Erie County Bar Association
  • ACLU of Pennsylvania
  • Philadelphia Volunteer Lawyers of the Arts
  • Community Legal Services of Philadelphia
  • Legal Aid of Southeastern Pennsylvania
  • MidPenn Legal Services
  • Neighborhood Legal Services Association (Pittsburgh)
  • Northwestern Legal Services
  • Pennsylvania Legal Services
  • Philadelphia Legal Assistance
  • Pennsylvania Newspaper Association Legal Resources

Nonprofit Legal Assistance Organizations in Texas

The following organizations provide legal assistance to individuals and organizations in Texas:

  • Texas Bar Association
  • Dallas Bar Association
  • Houston Bar Association
  • San Antonio Bar Association
  • ACLU of Texas
  • Texas Accountants & Lawyers for the Arts
  • Advocacy Incorporated
  • Legal Aid of Northwest Texas
  • Lone Star Legal Aid
  • Texas Legal Services Center (State Support)
  • Texas RioGrande Legal Aid

Nonprofit Legal Assistance Organizations in the District of Columbia

The following organizations provide legal assistance to individuals and organizations in the District of Columbia:

  • District of Columbia Bar Association
  • ACLU of the District of Columbia
  • Legal Aid Society of the District of Columbia
  • Washington Area Lawyers for the Arts

Nonprofit Legal Assistance Organizations in Virginia

The following organizations provide legal assistance to individuals and organizations in Virginia:

  • Virginia Bar Association
  • Fairfax Bar Association
  • ACLU of Virginia
  • Virginia Lawyers for the Arts
  • Blue Ridge Legal Services
  • Central Virginia Legal Aid Society
  • Legal Aid Justice Center
  • Legal Services of Northern Virginia
  • Potomac Legal Aid Society
  • Rappahannock Legal Services
  • Southwest Virginia Legal Aid Society
  • Virginia Legal Aid Society
  • Washington Area Lawyers for the Arts

Nonprofit Legal Assistance Organizations in Washington

The following organizations provide legal assistance to individuals and organizations in Washington:

  • Washington State Bar Association
  • King County Bar Association (Seattle)
  • Washington Lawyers for the Arts
  • Columbia Legal Services
  • Equal Justice Coalition
  • Legal Foundation of Washington
  • Northwest Justice Project
  • ACLU of Washington

OTHER LEGAL ASSISTANCE SERVICE LINKS BY STATE

http://www.ptla.org/legal-services-links

When Homeowner’s good faith attempts to amicably work with the Bank in order to resolve the issue fails;

Home owners should wake up TODAY! before it’s too late by mustering enough courage for “Pro Se” Litigation (Self Representation – Do it Yourself) against the Lender – for Mortgage Fraud and other State and Federal law violations using foreclosure defense package found at http://www.fightforeclosure.net “Pro Se” litigation will allow Homeowners to preserved their home equity, saves Attorneys fees by doing it “Pro Se” and pursuing a litigation for Mortgage Fraud, Unjust Enrichment, Quiet Title and Slander of Title; among other causes of action. This option allow the homeowner to stay in their home for 3-5 years for FREE without making a red cent in mortgage payment, until the “Pretender Lender” loses a fortune in litigation costs to high priced Attorneys which will force the “Pretender Lender” to early settlement in order to modify the loan; reducing principal and interest in order to arrive at a decent figure of the monthly amount the struggling homeowner could afford to pay.

If you find yourself in an unfortunate situation of losing or about to lose your home to wrongful fraudulent foreclosure, and need a complete package that will show you step-by-step litigation solutions helping you challenge these fraudsters and ultimately saving your home from foreclosure either through loan modification or “Pro Se” litigation visit: http://www.fightforeclosure.net

 

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How Homeowners Can Effectively Handle Subpoenas Duces Tecum

30 Thursday Oct 2014

Posted by BNG in Discovery Strategies, Fed, Federal Court, Foreclosure Defense, Judicial States, Litigation Strategies, Non-Judicial States, Pleadings, Pro Se Litigation, State Court, Trial Strategies, Your Legal Rights

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Pro se legal representation in the United States, Subpoena Duces Tecum

When homeowners fighting foreclosure are challenged with Foreclosure Mill Attorneys to produce him/herself for deposition or for production of documents via subpoenas, there are few things the homeowner should bear in mind concerning subpoenas.

Responding to Subpoenas

You’ve received a document that might be a subpoena. Your immediate reaction may be shock and a desire to immediately obey its request. As with anything legal, it’s best not to act on impulse but to carefully consider the options before you. While you will likely need to comply, there are times when a court will agree to modify the subpoena’s request or even to terminate it entirely. This guide cannot give you legal advice about your situation and you should contact a lawyer for specific legal advice. However, this post should be able to answer the preliminary questions you may have about how best to respond.

1. What is a subpoena?

A subpoena is a legal order commanding the person or organization named in the subpoena to give sworn testimony at a specified time and place about a matter concerned in an investigation or a legal proceeding, such as a trial. A subpoena duces tecum substitutes the requirement of your appearance to testify with a requirement that you supply specific physical material in your possession. A deposition subpoena means that your sworn testimony will be taken during a phase of the trial process known as discovery, and will likely occur at a lawyer’s office.

Subpoenas may be issued by the following people involved in the legal case associated with the subpoena:

  • the judge presiding over the legal proceedings
  • the clerk of the court where the lawsuit has been filed
  • a private lawyer representing one of the parties in the lawsuit
  • a government lawyer such as the Attorney General or District Attorney

(Note that the Attorney General and District Attorney can issue a subpoena during an investigation, before initiating a legal case).

Given that a subpoena is an order to produce yourself and/or tangible items in a very specific legal setting, it is imperative that you take it seriously. Failure to comply with a subpoena can have serious consequences. However, you do have certain options in how best to respond.

2. Did you receive a subpoena?

You’ll first want to determine precisely what you’ve received. Review the documents to see whether it is a subpoena duces tecum, to access material in your possession.

Subpoenas come in several flavors, and you may need someone trained in the law to help you determine what type of legal document you’ve received, if you are not quite familiar with legal documents. However, a subpoena contains certain distinguishing characteristics. Look carefully at the document for:

  • the full name of a court in the document’s title, or letterhead
  • the word “Subpoena” in bold in the top third of the document
  • the words “you are commanded to report,” or a similar variation
  • your name
  • a specific date, time and location for you to appear or for you to provide the requested materials
  • in some cases, the penalty for non-compliance will be included

Subpoenas are not necessarily filed with the court, so if you have doubts about the document you’ve received, ask a lawyer or call the person who signed the document and ask if they have in fact sent a subpoena. (An address and or telephone number should follow the signature.)

3. Accepting a Subpoena vs. Complying with a Subpoena

Once you’ve determined that you have received a subpoena, you may feel that you want to contest the subpoena because you believe that it is invalid or unreasonable. You can still do so despite having received the subpoena (which in most cases arrived by registered mail, or by a person delivering it to you and requesting your signature). Acceptance of the subpoena does not constitute your assent to comply with it. However, if you object to the terms of the subpoena, then you must inform the court about your decision to challenge it.

4. Inconvenient Date & Cost of Travel

As long as you are not one of the parties in the case and you have to travel an appreciable distance, your transportation costs should be covered and you should be given an attendance fee. The costs and fees are set according to the rules of the court named in the subpoena. Generally, in a civil case you should receive the cash or check before you have to appear. After you testify in a criminal case, you should receive an attendance fee and travel reimbursement.

If appearing at the time and place specified by the subpoena is of great inconvenience, call the person who issued the subpoena, and he may be able to reschedule your appearance to a more convenient date. However, keep in mind that postponement may not be an option because a court date has been set for the trial and cannot be moved. If so, and if you would suffer extreme hardship from having to appear, consult a lawyer who may be able to help.

5. Filing an Objection to a Subpoena

The subpoena will require that you either appear, or produce documents or other material, at a specific time and location. If you want to inform the court of your objections you will need to file a Motion to Quash. Typically, a Motion to Quash contains a request to the court asking to modify or terminate the subpoena based on certain objections, and a memorandum explaining how the law supports the objections.

You should not wait until the date specified to make your objection known to the court. There are many valid reasons to object, the most common being:

  • Improper service

The law requires that you receive (were “served”) with the subpoena in a specified way. Requirements for service vary according to jurisdiction, and the subject is too complicated to address in this guide. You may want to consult with an attorney or perform your own legal research to understand whether service was proper. However, this is usually not a strong objection because in all likelihood you will merely be served once again.

  • Scope of Request

If you believe the subpoena you’ve received requests information or material that would be difficult to gather, you may be able to challenge it. Should the court agree with your objections, it may nullify the subpoena. More likely, the court will limit the scope of the subpoena, set a more reasonable deadline for you to deliver the materials, and, if a voluminous amount of documents have been requested, the court may also require the other party to compensate you for making the necessary copies of each document. (Note: you should not have to create anything new for a subpoena request; the request should only be for existing material within your possession.)

It is important to note two things here: the court does not usually monitor who and what is subpoenaed, and under rules of trial procedure, a party to a lawsuit is permitted to send a subpoena to anyone he thinks might have material useful for his case. Additionally the material doesn’t even have to relate to the subject of the lawsuit. A party is entitled to request materials it thinks might have the potential to lead to relevant information concerning the subject matter of the case. Thus, unsurprisingly, many subpoenas are drafted to be broad in scope, and in some cases, to have a short deadline.

  • Confidential Material

If the subpoena requires that you turn over confidential documents, or testify about confidential matters, like the identity of an anonymous source, do not immediately comply with the request. The law recognizes the importance of protecting certain communications and grants them a privileged status for purposes of a lawsuit.

For example:

* Certain states have enacted “shield” laws protecting journalists and others from being compelled to testify about information collected during the newsgathering process, including the disclosure of anonymous sources.

* Both state and federal law prevents certain professionals, like doctors and lawyers, from being forced to testify or submit documents about their patients or clients.

* Both state and federal law grant close relatives immunity from testifying in certain situations.

* Certain provisions are designed to protect homeowners in foreclosure as well.

Because these protections vary according to each jurisdiction you will need to consult a lawyer, or perform your own legal research, to see whether any apply to your situation.

In matters involving criminal offenses you’ll need to be aware of:

  • Self-incrimination

The Fifth Amendment of the U.S. Constitution protects an individual from being forced to testify against himself when such testimony could result in criminal liability.

In some cases, law enforcement authorities use a subpoena to a build a case against the subpoena recipient before pressing charges. If you think that you may be the focus of a criminal investigation, or worry about incriminating yourself when you testify, do not comply with the subpoena without first consulting a lawyer.

6. Hiring a Lawyer

If you haven’t already made a decision at this point, you should decide whether you want to hire a lawyer. If the request is straightforward and you’re comfortable with supplying the requested information, you may not need a lawyer’s services. However, you will almost always be better off having a lawyer protecting your interests, even if you think you have nothing to hide. You may mischaracterize a situation and make yourself vulnerable to a lawsuit or criminal charges, and if so, will find it hard to rebut the testimony given under oath.

For homeowners without legal knowledge, before contacting a lawyer, write down everything you know about the situation, including: when and how you received the subpoena, the nature of the actions that triggered the subpoena, and any relevant interactions you’ve had with either party of the lawsuit. The act of writing the summary allows you to:

  • record events you may later forget
  • evaluate your position and figure out your next steps
  • focus your conversation with a lawyer (should you wish to consult with one)
  • launch your own legal research
  • potentially determine the subpoena’s validity

When Homeowner’s good faith attempts to amicably work with the Bank in order to resolve the issue fails;

Home owners should wake up TODAY! before it’s too late by mustering enough courage for “Pro Se” Litigation (Self Representation – Do it Yourself) against the Lender – for Mortgage Fraud and other State and Federal law violations using foreclosure defense package found at http://www.fightforeclosure.net “Pro Se” litigation will allow Homeowners to preserved their home equity, saves Attorneys fees by doing it “Pro Se” and pursuing a litigation for Mortgage Fraud, Unjust Enrichment, Quiet Title and Slander of Title; among other causes of action. This option allow the homeowner to stay in their home for 3-5 years for FREE without making a red cent in mortgage payment, until the “Pretender Lender” loses a fortune in litigation costs to high priced Attorneys which will force the “Pretender Lender” to early settlement in order to modify the loan; reducing principal and interest in order to arrive at a decent figure of the monthly amount the struggling homeowner could afford to pay.

If you find yourself in an unfortunate situation of losing or about to lose your home to wrongful fraudulent foreclosure, and need a complete package that will show you step-by-step litigation solutions helping you challenge these fraudsters and ultimately saving your home from foreclosure either through loan modification or “Pro Se” litigation visit: http://www.fightforeclosure.net

 

 

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How California Homeowners Can Technically Disqualify their Foreclosure Mill Attorney

09 Thursday Oct 2014

Posted by BNG in Banks and Lenders, Case Laws, Case Study, Federal Court, Foreclosure Defense, Fraud, Judicial States, Litigation Strategies, MERS, Non-Judicial States, Pleadings, Pro Se Litigation, State Court, Trial Strategies, Your Legal Rights

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California, Mortgage Electronic Registration System, Pro se legal representation in the United States

In this age of fraudulent foreclosures by foreclosure mills, homeowners should be in a position to effectively challenge and disqualify the foreclosure mill Attorneys, if for anything, that can effectively delay your foreclosure and ultimately save your home.

In most foreclosure cases, the existence of conflict of interest is obvious. If you look at your pleadings carefully, you will notice that in most cases, the pleadings will reflect that the Attorney who is representing your purported lender is “also” representing MERS. In other words the law firm is acting as counsel for the lender who initiated this foreclosure proceeding, in conjunction with MERS who is also a defendant in the case. Incredibly the lender’s counsel (who is like a plaintiff – for commencing and prosecuting the foreclosure proceeding), even though it has already acted as counsel for the defendant, MERS, in similar cases! OR representing both the lender and MERS in non judicial foreclosure cases where the homeowner is suing everyone involved in his mortgage loan transaction. By virtue of commencing foreclosure via a MERS purported assignment, the lender has trapped itself. It is only when a homeowner uses such opportunity to bring that to the court’s attention with a “motion to disqualify counsel” will the homeowner take advantage of the situation.

It is fundamental that the same law firm cannot represent a plaintiff and a defendant in the same case.

The purported lender may dispute its representation of MERS, but there is no other explanation for why the purported lender’s own employees prepared the purported assignment and executed it on behalf of MERS. In order words, if the Attorney representation of both parties was not a conflict, then why did the lender’s own employee prepare the purported assignment and sign it for MERS? Even if you case does not involve the an Attorney representing both the lender and MERS, If the homeowner research carefully within your region, you will notice that the same counsel had in the past became the counsel of record for MERS in many other cases active before courts. As such, the Attorney’s status as counsel for the defendant MERS is not reasonably in dispute.

Homeowners should make the arguments that calls into question
the fair administration of justice. To illustrate, the homeowner fear that MERS may institute legal proceedings against him in the future. After all, what is to stop MERS from taking the position, at some point in the future, that it is the owner and holder of the Note and deed of trust.
Where would that leave the homeowner Or the then-owner of the subject property? Or the title insurance company that writes title insurance based on the title that is derived from a foreclosure on the subject property (if a foreclosure is allowed)?

Homeowners should argue that under a myriad of cases, the conflict of interest by which lender’s counsel is operating, couple with the affect that conflict is having on the administration of justice requires its disqualification as counsel. See State Farm Mut. Auto. Ins. Co. v. KA.W., 575 So. 2d 630 (Fla 1991); Koulisis v Rivers, 730 So. 2d 289 (Fla. 4th DCA 1999); Campell v. American Pioneer Savings Bank, 565 So. 2d 417 (Fla. 4th DCA 1990).

To the extent that lender’s counsel disagree with the facts set forth herein, homeowner should argue that the court cannot simply accept the law firm’s version of events as true. Rather, in that event, an evidential hearing is required. To illustrate further, on February 12, 2010, the Second District reversed a summary judgment of foreclosure where the plaintiff bank did not show a proper assignment of mortgage. See BAC Funding Consortium, Inc. v. Jacques, Cas No 2D08-3553 (Fla. 2d DCA 2010). This ruling comes on the heels of the Florida Supreme Court’s recent rule change requiring that all mortgage foreclosure lawsuits be executed under oath.

Other jurisdiction have started noticing the fraud brought upon the Honorable courts, entertained motions to disqualify counsels and have also disqualified counsels based on facts as stated herein. After all, only in recent years have banks and their employees begun drafting assignments in mass quantities in an attempt to “push through” non-judicial and judicial foreclosures. Other jurisdictions, however, have begun catching on to these unseemly tactics. One New York court, for example, after discussing problems with an assignment of mortgage similar to those set forth above, ruled:
“Even if [plaintiff] is able to cure the assignment defect, plaintiff’s counsel then has to address the conflict of interest that exist with his representation of both the assignor of the instant mortgage, MERS as nominee for HSBC Mortgage, and the assignee of the instant mortgage, HSBC….”

HSBC Bank USA, N.A. v. Vazquez, 2009 N.Y. Slip. Op. 51814 (2009); see also Bank of N.Y. v. Mulligan, 2008 N.Y. Slip. Op. 31501 (2008) (The Court is concerned that [the person who signed the assignment] may be engaged in a subterfuge, wearing various corporate hats«´); Deutsche Bank National Trust Co. v. Castellanos, 2008 N.Y. Slip. Op. 50033 (2008) (If he is a Vice President of both the assignor and the assignee, this would create a conflict of interest and render the July 21, 2006 assignment void.´); HSBC Bank, N.A. v. Cherry, 2007 N.Y. Slip. Op.52378 (2007) (The Court is concerned that there may be fraud on the part of HSBC, or at least malfeasance. Before granting an application for an order of reference, the Court requires an affidavit from [the person who signed the assignment] describing his employment history for the past three years.)

The situation here is similar to that presented to the First District in Live and Let Live, Inc. v. Carlsberg Mobile Home Props., Ltd., 388 So. 2d 629 (Fla. 1st DCA 1980). In that case, plaintiff’s attorney was the escrow agent for the real estate transaction upon which the lawsuit was based. What he knew or was told at closing was relevant at trial. Id. Deeming him a central figure in the lawsuit, the First District required his disqualification. Id. In so ruling, the court cited ethical considerations promulgated by the Florida Supreme Court in In Re Integration Rule of The Florida Bar, 235 So. 2d 723 (Fla. 1970), including DR 5-102, which provides:

(A) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial. (B) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness other than on behalf of his client, he may continue the representation until it is apparent that his testimony is or may be prejudicial to his client.

A potent weapon in any lawyer’s arsenal is a motion to disqualify opposing counsel. If used successfully, it stops the opposing party in its tracks and forces an adversary to start over with a new lawyer. And for those on the receiving end of such a motion, it is crucial to know whether it should be granted or rejected. Courts have developed a four-factor test to assess the merits of a disqualification motion, but before we discuss that test, consider the following example.

Assume “Attorney A” is long-time litigation counsel for Widgetco Inc. Widgetco is being sued, and the opposing party deposes one of Widgetco’s employees who is not named as a party in the suit but who has percipient knowledge of the underlying facts of the case. Attorney A defends the deposition of that employee and, at the start of the session, states on the record that he is appearing as counsel for the employee. A year later the employee steals company trade secrets and opens a competing business.

Widgetco then hires Attorney A to sue the former employee for misappropriation of trade secrets and unfair competition. Counsel for the former employee promptly files a motion to disqualify Attorney A on the ground that he has a conflict of interest because he was counsel for the employee during the deposition in the prior case. Is Attorney A out of luck and off the case? Not necessarily.

PERSONAL RELATIONSHIP REQUIRED
To win the disqualification motion, the former employee must first show that he or she was personally represented by Attorney A. In addition, the employee must show a “substantial relationship” between Attorney A’s current and previous representation of the former employee (Brand v. 20th Century Ins. Co., 124 Cal. App. 4th 594, 602 (2004)). An attorney representing a corporation does not automatically have an attorney-client relationship with the organization’s individual constituents (officers, directors, shareholders, employees) (Vapnek, Tuft, Peck & Wiener, California Practice Guide: Professional Responsibility, ¶ 3.90 (The Rutter Group, 2007)). Rather, courts distinguish between a corporate counsel’s representation of corporate officers, directors, and employees “in their representative capacities and the representation of those persons in their individual capacities.” (Koo v. Rubio’s Restaurants, Inc., 109 Cal. App. 4th 719, 732-33 (2003).) As one court has stated, “[G]enerally, there is no individual attorney-client privilege between a corporation’s attorney and individuals within the corporation unless there is a clear showing that the individual consulted the corporate counsel in the officer’s individual capacity.” (Tuttle v. Combined Ins. Co., 222 F.R.D. 424, 429 (E.D. Cal. 2004).)

The preeminent case explaining this distinction is Meehan v. Hopps (144 Cal. App. 2d 284 (1956)), in which long-time corporate counsel represented the corporation in a suit against Stewart Hopps, a former officer and chairman of the board. Hopps moved to disqualify the corporation’s counsel, arguing that he had spent many hours conferring with counsel, and had delivered to counsel memoranda and personal files relating to various legal matters in which the corporation was involved (144 Cal. App. 2d at 287, 290). The court of appeal affirmed the trial court’s denial of the motion to disqualify, holding that “[t]he attorney for a corporation represents it, its stockholders and its officers in their representative capacity” and in no way “represents the officers personally.” (144 Cal. App. 4th at 290; see also Talvy v. American Red Cross, 205 A.D. 2d 143, 150, 618 NYS 2d 25, 29 (N.Y. Ct. App. 1984) (“Unless the parties have expressly agreed otherwise in the circumstances of a particular matter, a lawyer for the corporation represents the corporation, not the employees”).) The court concluded not only that the attorney could act adversely to Hopps, but also that he could use against Hopps any information that Hopps “was required by reason of his position with the corporation to give to that attorney.” (144 Cal. App. 4th at 290.) Thus, as commentators have noted, “[t]he fact that counsel may have learned confidential information about [former officers now adverse to the company] does not disqualify counsel from continuing to represent the corporation.” (Friedman, California Practice Guide: Corporations at ¶ 6:3.2 (The Rutter Group, 2007).) The primary issue, then, on a motion to disqualify a lawyer who previously represented a client’s employee is whether the former employee can establish that he or she had a personal attorney-client relationship with the company’s litigation counsel (Koo, 109 Cal. App. 4th at 729). The rule against representation adverse to a former client does not apply when the relationship of attorney and client has never, in fact, been created between the attorney and the complaining party. (See 1 Witkin, California Procedure at § 151, p. 206 (4th ed. 1996).)

A formal contract is not necessary to establish that an attorney-client relationship exists (Waggoner v. Snow, Becker, Kroll, Klaris & Kravis, 991 F.2d 1501, 1505 (9th Cir. 1993) (applying California law)). On the other hand, the former employee’s mere subjective belief that he or she was personally represented by corporate counsel is not sufficient (Fox v. Pollack, 181 Cal. App. 3d 954, 959 (1986)). Rather, it is the former employee’s burden to prove that the totality of the circumstances reasonably implies an agreement by the company’s lawyer not to accept other representations adverse to the former employee’s personal interests (Responsible Citizens v. Superior Court, 16 Cal. App. 4th 1717, 1733 (1994)).

THE FOUR-FACTOR TEST
A federal court applying California law has cited four factors to use in assessing whether the totality of the circumstances reasonably implies an agreement of personal representation. The four factors are: (1) the nature and extent of the contacts between the attorney and the purported client; (2) whether the purported client divulged confidential information to the attorney; (3) whether the attorney provided the purported client with legal advice; and (4) whether the purported client sought or paid for the attorney’s services (Fink v. Montes, 44 F. Supp. 2d 1052, 1060 (C.D. Cal. 1999)).

Attorney contacts. The first factor of the Fink test involves the nature and extent of the contacts between the attorney and the former employee. California case law does not address whether a corporate lawyer whose sole contact with a corporate employee is to prepare him or her for deposition and/or to defend the employee at deposition is by reason of that contact alone disqualified from representing the corporation in a lawsuit against the employee. However, cases from other jurisdictions generally provide that the corporate attorney is not deemed to represent the employee personally in such circumstances.

For example, in Polin v. Kellwood Co. (866 F. Supp. 140 (S.D.N.Y. 1994)) a former officer of a company met with the company’s lawyers to prepare for his deposition in a lawsuit involving the company. In a later lawsuit against that same former officer, the district court held that the corporate lawyers were not automatically disqualified from representing the company because “[t]he mere fact that a corporate lawyer meets with an employee – or as here, an ex-employee – to prepare for a deposition, cannot make the employee the client of the lawyer.” (866 F. Supp. at 142.)

Also instructive is Spinello Cos. v. Metra Industries, Inc. (2006 Westlaw 1722626 (D. N.J. 2006)), in which the defendant (a former officer) sought to disqualify Spinello’s counsel because he had defended the officer at, and prepared him for, a deposition in a previous lawsuit involving Spinello. The court concluded that no personal attorney-client relationship existed between the company’s counsel and the former officer (2006 Westlaw 1722626 at *6).

Courts have reached a different conclusion when the attorney specifically identifies himself or herself on the record as “counsel for the individual employee” (or the attorney remains silent when the employee identifies the attorney as personal counsel). For example, in Advance Mfg. Technologies, Inc. v. Motorola, Inc. (2002 Westlaw 1446953 (D. Ariz. 2002)), a former employee of Motorola met with Motorola’s counsel to prepare for deposition. At the deposition, when asked by opposing counsel whether he was represented by an attorney, the former employee said he was represented by Motorola’s lawyer. Motorola’s lawyers “remained silent and did not deny or otherwise qualify [the former employee’s] affirmative response.” (2002 Westlaw 1446953 at *1.) The court determined that silence in the face of the potential client’s expressed belief of representation made the belief an objectively reasonable one and, indeed, manifested the attorney’s “implied consent to an attorney-client relationship.” (2002 Westlaw 1446953 at *5.)

Similarly, in E.F. Hutton & Co. v. Brown (305 F. Supp. 371 (D. Tex. 1969)), the district court held that corporate counsel who represented a corporate officer at an SEC investigative proceeding, and at a bankruptcy hearing at which the officer testified, had a personal attorney-client relationship with that officer. Critical to the district court’s finding in E.F. Hutton was the fact that in both proceedings the corporate lawyer made formal appearances as counsel for the individual officer (305 F. Supp. at 386-87). The court noted that though an attorney’s appearance in a judicial or semi-judicial proceeding “creates a presumption that an attorney-client relationship exists between the attorney and the person with whom he appears,” that presumption becomes “almost irrebuttable” when the attorney enters a “formal appearance” for that person (305 F. Supp. at 387, 391-92).

E.F. Hutton and Advance Manufacturing Technologies should be contrasted with Waggoner (991 F.2d at 1506), in which the Ninth Circuit found that no attorney-client relationship existed, in part, because the lawyer was identified as “corporate counsel” both at trial and during a deposition of his client’s former officer.

In addition, in today’s legal world it is not uncommon for depositions to be videotaped and for the videographer to ask for “appearances of counsel,” which are part of the video record (and sometimes part of the sten-ographic record as well). To avoid any confusion, then, corporate counsel defending an employee should always state that he or she is representing the witness in the witness’s capacity as an employee of the company, and not individually. Counsel must also be careful in objecting to document requests served with deposition notices for a client’s employee: Those objections should clearly indicate that they are made on behalf of the deponent as an employee, not as an individual.

Confidential information. The second Fink factor analyzes whether the former employee divulged confidential information to the attorney (44 F. Supp. 2d at 1060). The confidential information to which the Fink court refers concerns the individual employee; it is not confidential information relating to the business of the corporation.

A court will look at whether the confidential information was disclosed to the attorney in a situation in which the employee had an expectation of privacy. In the Spinello case noted above, the court held that the corporate employee had no expectation of privacy in conversations with a corporate lawyer about issues relating to the corporation. It acknowledged that the former employee had conversations with the company lawyer in preparation for his deposition, but observed that the confidential information exchanged was in regard to the company’s business plan. The court then noted that all exchanges were for the benefit of the company, concluding that the employee “had no reasonable expectation of privacy regarding these conversations to the exclusion of … Spinello Companies when they were made and cannot claim they are confidential now.” (See 2006 Westlaw 1722626 at *5.)

Accordingly, a company attorney may consider having a company officer present during preparation sessions for the deposition of a company employee; with the officer present, the employee can have no reasonable expectation of privacy.

Legal advice. The third Fink factor addresses whether the corporate lawyer provided the former employee with legal advice. Again, the court will be looking to see if personal legal advice has been given, apart from legal advice regarding company business. (See Tuttle, 222 F.R.D. at 429 (no attorney-client privilege because employee did not seek legal advice from corporate attorneys “in a personal capacity”); U.S. v. Keplinger, 776 F.2d 678, 700 (7th Cir. 1985), cert. denied, 476 U.S. 1183 (1986) (“Defendants do not dispute the attorney’s testimony that defendants never explicitly sought individual legal advice or asked about individual representation”).)

Obviously, explaining to a witness the rules of a deposition and general practices in responding to questions should not be considered personal legal advice (upon which a later disqualifying motion could be based). Such advice simply protects the company’s interests and is consistent with a finding that the law firm represented the person only as an employee of the company and not as an individual.

If the individual officer or employee is potentially a party to the case, it is much more likely that corporate counsel can be shown to have provided personal legal advice. In such a situation, in which the employee’s personal interests are at stake, a court could easily conclude that the lawyer’s representation of the employee was personal in nature.

Who paid? The fourth and final Fink factor is whether the former employee sought out or paid for the services of the corporation’s attorney. In the usual situation involving the deposition of a corporate employee, the company – not the employee-seeks out representation by the corporate attorney. This is often reflected in the retention agreement. Thus, one court found no attorney – client relationship between company counsel and a former CEO because the engagement letter limited the engagement to the company’s intellectual property matters (Synergy Tech & Design Inc. v. Terry, 2007 Westlaw 1288464 (N.D. Cal 2007)). Typically, the attorney will be compensated by the company and not by the individual. In the Synergy case, the court found no attorney-client relationship, based in part on the fact that the corporation was “billed for or paid for all of the filing fees and expenses” (2007 Westlaw 1288464 at *8). Lawyers representing a corporation should therefore take extra care when defending the deposition of a client’s employee.

Whenever an attorney enters an appearance – whether during a deposition or at the courthouse – care should be taken to make clear the identity of the client, especially if corporate entities and individual corporate employees are involved in the case. One never knows if a corporate client’s employee will turn into an adversary who might seek to have the company’s lawyer removed from a future case.

When Homeowner’s good faith attempts to amicably work with the Bank in order to resolve the issue fails;

Home owners should wake up TODAY! before it’s too late by mustering enough courage for “Pro Se” Litigation (Self Representation – Do it Yourself) against the Lender – for Mortgage Fraud and other State and Federal law violations using foreclosure defense package found at http://www.fightforeclosure.net “Pro Se” litigation will allow Homeowners to preserved their home equity, saves Attorneys fees by doing it “Pro Se” and pursuing a litigation for Mortgage Fraud, Unjust Enrichment, Quiet Title and Slander of Title; among other causes of action. This option allow the homeowner to stay in their home for 3-5 years for FREE without making a red cent in mortgage payment, until the “Pretender Lender” loses a fortune in litigation costs to high priced Attorneys which will force the “Pretender Lender” to early settlement in order to modify the loan; reducing principal and interest in order to arrive at a decent figure of the monthly amount the struggling homeowner could afford to pay.

If you find yourself in an unfortunate situation of losing or about to lose your home to wrongful fraudulent foreclosure, and need a complete package that will show you step-by-step litigation solutions helping you challenge these fraudsters and ultimately saving your home from foreclosure either through loan modification or “Pro Se” litigation visit: http://www.fightforeclosure.net

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