By Mark Stopa
The Tampa Tribune has a fascinating yet sickening story about a lawyer for BB&T who sent a Florida homeowner a demand letter requiring payment of the balance of her mortgage within 30 days. Threatening letters like this are common; where this one is so different is that the lawyer attached it to a document that looks like an official court filing in a pending foreclosure lawsuit … only it’s not.
Take a look …
At first blush, this looks like a typical Notice of Appearance by a law firm in a pending foreclosure case. Closer inspection, though, shows the document has no case number – and every pending lawsuit always has a case number. In fact, closer inspection of the Hillsborough County clerk’s website reveals there is no lawsuit pending at all against this homeowner; the lawyer just made it appear that way. Quite simply, as the article indicates, the letter and form are totally bogus!
So the question becomes – did the lawyer create the bogus form intentionally? Let’s put it this way. I’ve been a lawyer for ten years. I’ve represented Plaintiffs and Defendants in thousands of lawsuits of various types. I cannot fathom a circumstance where I’d sign a paper like that accidentally. I don’t see how it’s possible. How does one go about drafting a Notice of Appearance with that homeowner’s name on it, as a Defendant, if there is no lawsuit against that homeowner? Clearly the lawyer didn’t have copies of a court file or anything to that effect – there was no court file.
Unfortunately, a Florida Bar investigator seemed quick to let the lawyer off the hook, saying ”I could see how with thousands of cases, a mistake like this could happen.” (BTW, that’s an odd comment to make about what is sure to be a pending investigation.) Anyway, as a lawyer, how do you sign your name on a court document and not realize there is no lawsuit pending? How does that form ever get drafted? Even if the lawyer cut and pasted from a similar form (not uncommon for this type of practice), why did the lawyer write that homeowner’s name as the defendant if there was no lawsuit pending? I just can’t fathom how it could be accidental.
Another telling factor – the letter attached demanded payment of the mortgage within 30 days. This is a very typical, pre-suit demand letter. Most mortgages have a provision requiring notice to the homeowner of the default on the mortgage payments and an opportunity to cure that default prior to filing suit. If that is the letter that was attached, then the lawyer had to know a lawsuit had not been filed; that’s the entire point of the letter – it’s sent prior to any lawsuit!
Now for a little fun.
Lawyers are generally immune from being sued for actions taken as a lawyer under a legal doctrine called the absolute litigation privilege. I’m simplifying, but this basically means that a party can’t sue the opposing attorney for defamation, or anything like that, merely because the lawyer is asserting a legal position in a pending case. However, this doctrine typically applies only to actions taken by lawyers during the course of pending lawsuits. Here, there was no lawsuit pending, so it seems to me that this homeowner has grounds for a lawsuit against the lawyer, the law firm, and BB&T, if she so chooses! Or if the homeowner doesn’t want to be a plaintiff in such a suit, it can assert defenses/counterclaims predicated on this issue if/when BB&T files a foreclosure lawsuit!