Guardian Ad Litem Appointments In Foreclosure Actions An Outdated System Ripe For Conflicts Of Interests, Overburden Lawyers

In Tampa, Florida, The Tampa Tribune reports:

• When a lender fails to find a homeowner to notify them of a foreclosure lawsuit, a judge often appoints a guardian ad litem. That attorney is supposed to represent the property owner's interests.
• But guess who typically picks the guardian? The lender's attorney. Foreclosure is the only court proceeding in Florida where the plaintiff routinely chooses the attorney ad litem to represent the defendant, according to court records and interviews. Foreclosure firms typically recommend a small pool of lawyers, and the foreclosing lender pays the defendant's attorney bill.(1)

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• Law experts say it's an out-dated system that has become problematic. Now that courts are flooded with foreclosures, there is more opportunity for conflict of interest and overburdened lawyers, said Henry P. Trawick Jr., a Sarasota lawyer and author of Florida's Practice and Procedure, a textbook used by lawyers.
• "The ad litem is supposed to defend the person he's appointed to represent," Trawick said. "He's supposed to work as hard as he would if that person was paying for his services, not the bank."

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• Michael Olenick, of LegalPrise, which does legal research for lawyers, searched court records across the state and said he found 10 high-volume ad litem attorneys in foreclosure cases. "Many lawyers do these cases from time to time, but some do quite a bit of work for the same firms," he said.
• Those lawyers, Olenick said, carry a load of more than 100 cases at a time. And just as large foreclosure firms handle cases around the state, so do ad litem attorneys, Olenick said. "Foreclosure defense is litigation, and you may actually have to get in the courtroom," Olenick said. "Why would Palm Beach County appoint a Hillsborough attorney as guardian ad litem?"
• Trawick, the author of the law reference book, said that doesn't make sense. "Judges should appoint someone they know and trust," he said. "I think they're going to have to start having a list of the persons they know who will do that sort of thing."

For the story, see In foreclosure? If absent, the bank may choose your lawyer.

(1) According to the story, the ad litem procedure came to light recently after the Tribune reported about United States Coast Guardsman Keith Johnson (see Military Man Gets 11th Hour Stay Of Foreclosure Sale As Court-Appointed Attorney Gets Slammed For Failure To Notify Client Of Legal Action). While he was deployed overseas, a court-appointed attorney represented him in a foreclosure lawsuit he says he knew nothing about. That guardian ad litem failed to notify him of the suit, waived his rights to fight the case and allowed the foreclosure to move forward. Johnson returned to find out all of this the day before his Clearwater house was to be auctioned. When it came time to appoint the ad litem for Johnson, the lender's attorney suggested the same Tampa lawyer the bank often uses in such cases, and the judge agreed.