As reported on Law.com, the New York state court system has directed
lawyers moving for foreclosures to file an affirmation that they have verified
the accuracy of the papers they are filing in support of the foreclosure. While
lawyers regularly operate under ethical obligations to ensure that the papers
they file with the courts are valid, the requirement of a affirmative pleading
to that fact raises the stakes dramatically.
The New York courts are driving home to lawyers that they are risking both
sanctions and discipline if they do not examine the documents they file in
support of a foreclosure. In many instances, lawyers are not intimately
involved in the foreclosure process until filing a court action and have
certainly in the past taken the documents they receive from the banks and other
lenders at face value or not reviewed the documents at all.
Now, in light of the foreclosure freeze and the testimony regarding the sloppy
practices by banks, lawyers must do more than they have done in the past. The
New York state court rule will force lawyers to track down notes and other
mortgage documents if the bank cannot produce the original or they risk their bar
licenses and reputations. If nothing else, the new requirement will cause New
York lawyers to examine carefully each of their foreclosure files. As likely,
New York lawyers will want to double check the accuracy of all the documents in
their foreclosure files, perhaps precipitating the review of the foreclosure files that banks may have skimmed
over. This directive is not unlike the requirement in bankruptcy cases,
sought by creditors in the 2005 bankruptcy amendments, that the attorney for
the debtor certify that he or she has no knowledge after an inquiry that the
information on the bankruptcy schedules is incorrect. It will be interesting to
see whether this requirement has any teeth.
articles about consumer debt by Ted Connolly, co-author of The Road Out of Debt
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