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Perfect Home Living Examines a Botched Foreclosure | |
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Salt Lake City, Sep 21, 2005 / Press Release / For mortgage lenders and financial institutions the cost of not following the letter of the law when it comes to foreclosures can prove costly. In 2005 the U.S. Court of Appeals rendered its decision in the U.S. Bank National Association v. Sullivan-Moore, 406 Fed.3d 465. |
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For those unfamiliar, U.S. Bank hired Fisher and Fisher, attorneys at law. The law firm specializes in representing mortgage lenders in over 4,000 cases per year. In routine fashion the law firm was asked to handle the foreclosure on U.S. Bank’s $140,000 residential mortgage loan made to 69-year-old Mattie Sullivan-Moore. Mattie had taken the loan out in 2001 and subsequently went into foreclosure. |
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Fisher and Fisher in haste sent out the foreclosure notice with the correct legal notice but with the wrong address. As a result Mattie never received her notice of the foreclosure proceeding before the foreclosure judgment was entered. Believing their policy had been followed to the letter of the law, Fisher and Fisher arranged a default order, obtained a foreclosure judgment, and held the sale of the property. U.S. Bank purchased the house at the sale. |
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Soon after the foreclosure sale, a Fisher and Fisher attorney had been routinely contacted by parties not involved in the foreclosure but the actually owners of the property that had received what should have been Mattie’s notice of the default. The attorney realized that the address the notice of default was delivered to was different than that listed for the defaulting party. |
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| Rather communicate the concern with Mattie the defaulting borrower, the attorney’s of Fisher and Fisher sought a court order for possession and a motion to correct a “scrivener’s error.” It is important to note that Mattie never received a notice of foreclosure sale before her eviction. Believing she had been falsely removed from her home, Mattie moved back into her house the following day. | ||
| Fisher and Fisher sought re-eviction. At the hearing the court ruled that Mattie had never been properly served and that the error could not be corrected by a “scrivener's error" motion, therefore the foreclosure sale must be voided. | ||
| The court ordered a sanction penalty that all Fisher and Fisher attorneys, including new hires, complete a 16-hour civil procedure course on subject-matter jurisdiction. To protest the courts ruling Fisher and Fisher attorneys appealed, arguing their sanction is unreasonable. | ||
| Comments stemming from the appeal are as follows: "The discovery of the mistaken address should have prompted a reasonably competent second-year law student to move to vacate the sale and judgment, and then start over with proper service of process," the judge began. Instead, Fisher and Fisher moved to correct a "scrivener's error," representing to the court that the correction would not prejudice any of the parties, he continued. | ||
| "Fisher and Fisher's plea of ignorance is unavailing," he commented, "and as we have repeatedly observed, an empty head but a pure heart is no defense." "Neither the firm's caseload nor its practice of shuffling cases from one attorney to another within the firm excuses the type of negligent action that caused Sullivan-Moore to be evicted," the judge commented. | ||
| "Fisher and Fisher acknowledges that its mistake regarding the address came to the attention of at least two of its attorneys over two months before Mattie was evicted," the judge emphasized. But in the interim, Fisher and Fisher sought and received a court order approving the sale and filed the motion to correct the so-called scrivener's error, the judge added. | ||
| Based on the 2005 U.S. Court of Appeals decision in U.S. Bank National Association v. Sullivan-Moore, 406 Fed.3d 465. | ||
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