The State of Maryland has just adopted a new proposed rule which would allow State Court Judges more power to dismiss foreclosure actions when a Judge suspects that the accompanying affidavit certifying the action was not actually signed by the attorney. As has been the case across the nation, in the situation that has given rise to this new rule, someone other than the foreclosing attorney signed the affidavit on the attorney's behalf. Two major Maryland foreclosure law firms have been identified as firms responsible for this "mis-practice".
In my last article, I wrote the following: "Eerily silent in any of the most recent reports is the connection that major foreclosure law firms may have had with any of the fraud that has occurred at these banks. It is safe to say that the big banks could not have at all times acted alone, but instead it is possible that some of these occurrences could have been facilitated through the assistance of counsel." Well it would seem that in Maryland that eerie silence has been shattered!
Six notaries in two foreclosure law firms have been stripped of their Notary Commissions when they failed to appear for a Court hearing to explain whether or not the attorney signing the previously filed affidavits actually signed those affidavits in the notary's presence. When none of the six notaries appeared in Court, their commissions were revoked, according to the Daily Record of Maryland. There has been no indication if any of the notaries will face sanctions or criminal prosecution, nor is there any word that the attorneys involved will face any penalty. But under Maryland's Rules of Professional Conduct, filing a false or inaccurate affidavit may be considered a violation of at least two rules of attorney conduct; Rule 3.3(a)(1) "A lawyer shall not knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;"; & Rule 3.3(a)(4) "A lawyer shall not knowingly offer evidence that the lawyer knows to be false." As one would think, attorneys that may have filed affidavits under these circumstances would be well advised to file corrective affidavits that cure any existing deficiencies contained within the originally filed affidavits. Failure to file curative documents would be a continuing violation of the Maryland Rules of Professional Conduct.
It is suspected that hundreds of bogus affidavits exist in pending Maryland foreclosure cases.
This becomes especially disheartening when one realizes that the judicial system is being duped into approving foreclosures, when many of the documents associated with those proceedings are not true and accurate. Maryland is not alone. In the State of Florida, "ground zero" of the current affidavit crisis, it was found that notaries have been stamping affidavits when the person signing those affidavits was not present as early as 2006! Three Florida law firms are currently under investigation by the Florida Attorney General for engaging in these tactics. One can be more than certain that this practice has been happening in every State of the Union, not just Maryland and Florida.
As Baltimore bankruptcy attorneys filing documents in Court, we are sworn to uphold the law, to be truthful in all statements, and to have the utmost candor and respect towards the tribunal and the judicial system. These duties can never be impugned because of the volume of the work or the laborious nature of the tasks involved in ensuring that the documents being filed with the Court contain a sufficient legal basis to proceed. Part and parcel to that legal basis is that the facts which are being relied upon to bring the action are true and accurate and that an attorney has certified same. Absent this attorney certification will bring into question the validity of the underlying court action. In the coming weeks, readers should expect to see many completed foreclosure actions undone.