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More bizarre foreclosure affidavits

by Mike on June 28, 2010

The Plaintiff’s firm in a foreclosure action we’re defending just filed an affidavit in support of its request for attorney fees on this contested case. After reciting all the boilerplate preliminaries, the affidavit said:

Smith, Hiatt, & Diaz has reached a fee agreement with their client wherein the Firm is paid based upon a flat fee for uncontested foreclosures, such as this matter. The Firm is paid a flat fee of $1,300.00 for an uncontested foreclosure. To the extent an issue is raised which fails to raise a genuine issue of fact, but must be replied to, the Firm is paid on a flat fee basis for a response to the issue. The Firm does not maintain specific time records for uncontested foreclosures pursuant to it’s [sic] flat fee arrangement, therefore I have not reviewed specific time records.

I am familiar with the specific steps and requirements that the Firm must complete to handle an uncontested foreclosure to its conclusion. This knowledge, together with my understanding of the flat fee agreement, leads me to the opinion that a flat fee of $2,850 is reasonable. In my opinion reviewing the actual file in this case is not necessary and would be futile, therefore I have not reviewed the actual file.

This affidavit is, on its face, ridiculous. First of all, this is a contested case, so the uncontested rates wouldn’t even apply. But even if they did, Smith Hiatt & Diaz is asking for more than double its flat-fee rate with no explanation of how this “uncontested” case deserves more than double the going rate.

And there can be no explanation. Why? Because this affiant never looked at any time records – there weren’t any. He never looked at the actual file -because it would be “futile” and ” not necessary” to do so. So what, then, about this “uncontested” case makes it so special that they demand double the standard rate?

No one can say.

A few things are clear, though:

Foreclosure plaintiffs mills routinely submit “affidavits” that cheapen and demean the court system. The oath and signature are supposed to mean something – that the person signing vouches for the actual truth of what’s there, and understands that their signature is applied under penalty of perjury. Courts are supposed to be able to rely on these documents – but thanks to the foreclosure plaintiffs’ mills and others like them, unreliable, ill-though, even perjurious affidavits are just sloshing through the system as fast as some lawyers’ laser printers can pump them out. Thousands of them, in every courthouse. They corrode our faith in the judicial system, because judgments are entered every day based on these sworn statements. Even careful judges who insist on a high standard for such documents can’t catch them all. It becomes the duty of the plaintiffs who submit them and the defendants who oppose them to ensure that only truthful, valid, legitimate evidence makes it to the court file, and that’s all that the court uses to render its verdicts. Otherwise, our courts are nothing more than rubber-stamps for plaintiffs run amok.

Want to know more? Contact us at Ricardo & Wasylik, PL.

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