Bar Staff Opinion: Florida Attorneys Representing Foreclosing Lenders Obliged To Step Up & Take Action When Questionable Affidavits Come To Light

American Banker reports:

• A Florida Bar Association opinion could have costly legal ramifications for banks embroiled in the robosigning controversy.



• According to the staff opinion, a bank with a large portfolio of mortgages approached a law firm it had hired to process foreclosures and asked it to stop doing so because of potential problems with the foreclosure documents.



• The lawyer requesting the opinion wanted to know the Florida Bar's stance on whether his office's filing of questionable affidavits in foreclosure cases was a violation of the law. According to the lawyer, replacing the affidavits in questions could raise red flags for 1,000 pending foreclosures as well as 18,000 completed foreclosures.



• And although the unidentified lawyer expressed confidence that replacing the questionable affidavits would not change the outcome of the foreclosure actions, he noted that doing so could result in costly litigation for the bank.



• Although at the time the questionable affidavits were filed, the lawyer's office had no grounds to know whether they might contain false information, the Florida Bar informed the lawyer that based upon the new revelations from the bank, he was obliged to take action.



• According to the Florida Bar, the lawyer should tell the bank to correct the affidavits, and that if the bank fails to do so, then the lawyer should withdraw from the case.



• Further, if the bank fails to step up to the plate, the lawyer is obligated to reveal to the court the fact that there has been an improperly verified and notarized affidavit filed in every one of the foreclosure cases that he processed, whether or not they are pending or already closed.(1)

Source: Florida Bar Opines.

See also, The Florida Bar News: Lawyers obligated to disclose faulty foreclosure paperwork.

(1) The next question to be addressed, in those cases that resulted in foreclosure sales, would be whether the defect in the affidavit is significant enough to render the subsequently-obtained foreclosure judgment (and, consequently, the foreclosure sale):

• absolutely void (in which case an action can generally be brought at any time to undo the foreclosure sale - and will necessarily obliterate the entire portion of the chain of title to the property created on and after the date of the foreclosure sale), or


• merely voidable (in which case an action to undo the foreclosure sale is subject to certain time limitations, and will have no effect on the rights of a foreclosure buyer, but only if said buyer qualifies for protection as a bona fide purchaser).