IGNT's lawyer Adam Tracy
DECISION FROM DISCIPLINARY REPORTS AND DECISIONS SEARCH
BEFORE THE HEARING BOARD
OF THE
ILLINOIS ATTORNEY REGISTRATION
AND
DISCIPLINARY COMMISSION
In the Matter of:
ADAM SAMUEL TRACY,
Attorney-Respondent,
No. 6287552.
Commission No. 2017PR00014
FILED --- February 24, 2017
COMPLAINT
Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission, by his attorneys, Roona N. Shah and Scott Renfroe, pursuant to Supreme Court Rule 753(b), complains of Respondent, Adam Samuel Tracy, who was licensed to practice law in Illinois on November 10, 2005, and alleges that Respondent has engaged in the following conduct which subjects Respondent to discipline pursuant to Supreme Court Rule 770:
COUNT I
(Lack of diligence, failure to keep a client informed, failure to expedite litigation, conduct involving dishonesty in the Davenport matter)
1. In the fall of 2013, Respondent and Shaugn and Melissa Davenport ("the Davenports") agreed that Respondent would represent the Davenports in converting their Chapter 13 bankruptcy to a Chapter 7 bankruptcy, with the intent to discharge the Davenports' unsecured debts. The Chapter 13 case was pending under case number 08-31463 in the United States Bankruptcy Court for the Northern District of Illinois, Eastern Division.
2. Respondent and the Davenports also agreed that the Davenports would pay Respondent $950 for the first month he represented them, and $495 each month thereafter until their bankruptcy case was concluded.
3. Between November 2013 and January 2014, Respondent prepared documents for the Davenports to review and sign, including a declaration attesting to the authenticity of their proposed Chapter 7 bankruptcy petition and accompanying documents that Respondent would be filing for them. The Davenports received, signed and returned the documents, including the declaration, to Respondent, who received them shortly thereafter.
4. As of January 21, 2014, Respondent had not filed the Davenport's Chapter 7 petition. On that date, Illinois Assistive Technology Program ("IATP") filed suit against the Davenports in Sangamon County in case number 2014 LM 110, seeking a judgment of $19,610.82 against the Davenports for allegedly past-due payments related to their purchase of a Nissan vehicle. At that time, the clerk of the court set a first appearance date of February 21, 2014 for the Davenports, or their counsel, to be present before the court.
5. On or about January 28, 2014, the Davenports were served with the summons and complaint in case number 2014 LM 110 and advised Respondent of IATP's lawsuit. Respondent agreed to defend the Davenports in this matter, and, at Respondent's suggestion, they agreed to list the lawsuit in the Davenports' Chapter 7 bankruptcy petition.
6. As of February 21, 2014, Respondent had not filed the Davenports' Chapter 7 bankruptcy petition, nor had he filed an appearance, answer, or any other responsive pleadings on the Davenports' behalf in case number 2014 LM 110.
7. On February 21, 2014, the Davenports and Respondent were not in court when case number 2014 LM 110 was called, and, in their absence, IATP obtained a default judgment for $19,610.82 against the Davenports. Soon after, the Davenports received notice of the entry of that judgment.
8. As of May 13, 2014, Respondent had not filed the Davenports' Chapter 7 bankruptcy petition. During this time, the Davenports tried to contact Respondent on a weekly basis to inquire about the status of their Chapter 7 bankruptcy filing, since they had submitted a signed copy of the declaration to Respondent at least four months earlier.
9. On May 13, 2014, Shaugn Davenport contacted Respondent and asked him about the status of the Chapter 7 bankruptcy case, at which time Respondent falsely stated that he had already filed the petition and was waiting for a court date to be assigned to the Davenports.
10. Respondent's May 13, 2014 statement to Shaugn Davenport about the status of the Davenports' Chapter 7 filing was false, because Respondent had not yet filed the Davenports' Chapter 7 bankruptcy petition, and Respondent was not waiting for a court date to be assigned in the case.
11. Respondent knew that his May 13, 2014 statement to Shaugn Davenport about the status of the Davenports' Chapter 7 filing was false, because Respondent knew that he had not yet filed the Davenports' Chapter 7 bankruptcy petition, and because he had not filed the petition, Respondent was not waiting for a court date to be assigned.
12. On May 27, 2014, after having been served with a citation to discover assets in the IATP case, Shaugn Davenport contacted Respondent and told him that they had been served with the citation. He also told Respondent that the citation had been scheduled for a hearing on June 6, 2014, and that he would be unable to attend court on that date. Respondent and Shaugn Davenport agreed that Respondent would appear at the citation hearing on June 4, 2014.
13. On June 6, 2014, Respondent did not attend the citation hearing in case number 2014 LM 110, and the Honorable John Madonia entered a rule to show cause against the Davenports based on their failure to appear.
14. On June 6, 2014, Respondent filed the Davenports' voluntary petition for Chapter 7 bankruptcy relief and other documents to initiate case number 14-21321 in the U.S. Bankruptcy Court for the Northern District of Illinois, Eastern Division. In his June 6, 2014 filing, however, Respondent did not include the following documents: the declaration (which is described in paragraph three, above), a statement of the Davenports' social security numbers, or a list of names and addresses of the petitioners creditors.
15. On June 9, 2014, the United States bankruptcy court clerk, Jeffrey Allsteadt, sent Respondent a deficiency notice which advised Respondent that the Davenports' Chapter 7 bankruptcy petition in case number 14-21321 was incomplete because Respondent had not included the declaration, the statement of social security numbers, or the list of names and addresses of all of the Davenports' creditors. Shortly thereafter, Respondent received a copy of the clerk's deficiency notice.
16. On June 10, 2014, based on Respondent's June 6, 2014 bankruptcy filing in case number 14-21321, Judge Madonia struck the June 6, 2014 rule to show cause against the Davenports and canceled future court dates related to case number 2014 LM 110.
17. As of June 12, 2014, Respondent had not filed the declaration that the Davenports had signed and given to him earlier that year. On or before that date, and without authorization from either client, Respondent affixed the Davenports' purported signatures on the bottom of a new, one-page bankruptcy declaration, misspelled Shaugn Davenport's name as "Shaug," and back-dated that document to June 4, 2014.
18. On June 12, 2014, Respondent filed the purported declaration (which is described in paragraph 17, above) in the Davenports' Chapter 7 bankruptcy case, but did not include the statement of social security numbers or the list of names and addresses of all of the Davenports' creditors.
19. The purported declaration that Respondent filed was false, because it had not actually been signed by the Davenports, it had been back-dated, and because the Davenports had not authorized Respondent to sign their names to it.
20. At the time Respondent filed the purported declaration (which is described in paragraph 17, above) Respondent knew the document was false, because it had not actually been signed by the Davenports, it had been back-dated, and because the Davenports had not authorized Respondent to sign their names to it.
21. Between June 12, 2014 and August 28, 2014, Respondent did not notify the Davenports that he had signed their names on the declaration, nor did he ask them to amend the declaration by adding their genuine signatures to it.
22. On August 28, 2014, the bankruptcy court conducted a meeting of creditors in the Davenports' bankruptcy case. Respondent was not present and had asked attorney Ben Koyl to appear for him. The Davenports and an attorney for the United States Trustee, Miriam Stein, were also present for the meeting.
23. At the creditor's meeting, the trustee asked the Davenports to review all of the documents that had been filed in the course of their Chapter 7 proceeding, and to confirm that those documents were correct. After being shown the purported declaration, the Davenports denied that the signatures on the document were genuine and testified that they had not given Respondent permission to sign their names to it.
24. On September 17, 2014, the Davenports sent an email to Respondent and asked him to withdraw as their counsel and to return their file to them. Respondent received and responded to the email, agreeing to no longer represent the Davenports and to return the Davenports' client files.
25. On September 24, 2014, Kathryn Gleason, an attorney for the United States Trustee, filed a motion for sanctions against Respondent for signing the Davenports' signatures on the declaration, and scheduled a hearing on the motion to be held on October 16, 2014. Shortly thereafter, Respondent received notice of the motion.
26. Between September 24 and October 30, 2014, Respondent contacted the Trustee's office, admitted that he signed the Davenports' names on the declaration, and negotiated with the Trustee over a range of sanctions that the bankruptcy judge could impose on him.
27. On October 30, 2014, the Honorable Jack Schmetterer granted the Trustee's motion for sanctions against Respondent, requiring him: (a) to complete 10 hours of continuing legal education, (b) to pay a fine of $1,000, (c) to serve a one-year suspension from practice before the bankruptcy court, and (d) to self-report his conduct to the Attorney Registration & Disciplinary Commission.
28. By reason of the conduct described above, Respondent has engaged in the following misconduct:
a. failing to act with reasonable diligence and promptness in representing a client, by conduct including delaying filing the Davenports' Chapter 7 bankruptcy petition and failing to take any action to defend the Davenport's from IATP's claims, in violation of Rule 1.3 of the Illinois Rules of Professional Conduct (2010);
b. failing to keep his clients reasonably informed about the status of their matters, by conduct including not disclosing to the Davenports when Respondent actually filed the Davenports' Chapter 7 bankruptcy petition, not showing up in court, not filing an appearance, answer, or any other responsive pleadings for the Davenports in the IATP matter, and failing to vacate or discharge IATP's judgment against the Davenports, in violation of Rule 1.4(a)(3) of the Illinois Rules of Professional Conduct (2010);
c. failing to make reasonable efforts to expedite litigation consistent with the interests of the client, by conduct including delaying filing the Davenports' Chapter 7 bankruptcy petition and not showing up in court, and not filing an appearance, answer, or any other responsive pleadings for the Davenports' in the IATP matter and failing to vacate or discharge IATP's judgment against the Davenports, in violation of Rule 3.2 of the Illinois Rules of Professional Conduct (2010);
d. knowingly offering evidence a lawyer knows to be false, by conduct including signing his client's name to the declaration, without authority to do so, in violation of Rule 3.3(a)(3) of the Illinois Rules of Professional Conduct (2010);
e. engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, by conduct including misrepresenting to Shaugn Davenport when Respondent filed the Chapter 7 filing and then by signing his client's name to the declaration without authority to do so, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010); and
f. engaging in conduct that is prejudicial to the administration of justice, by conduct including delaying filing the Davenport's bankruptcy petition which led to additional bankruptcy litigation for the Davenports, in violation of Rule 8.4(d) of the Illinois Rules of Professional Conduct (2010).
COUNT II
(Lack of diligence, failure to keep a client informed, false statement to a tribunal, conduct involving dishonesty in the Beata matter)
29. On June 1, 2010, Bank of America and Countrywide Home Loans filed a complaint for foreclosure against Cindy Beata ("Beata") regarding her home in Wilmington. That matter was entitled Bank of America, Countrywide Home Loans v. Cindy Beata, et al., case number 2010-CH-003374 (Circuit Court of Will County).
30. In October 2011, Respondent and Beata agreed that Respondent would represent Beata in case number 2010-CH-003374, and that he would help her apply for a modification of her existing mortgage. They agreed that Beata would pay Respondent $950 for the first month he represented her, and $495 each month thereafter, until the foreclosure and loan modification matters were concluded.
31. In order to apply for a loan modification for Beata, Respondent needed to submit various forms to Beata's lender, including: a loan modification application, Beata's bank statements, a household liabilities and expenses form, a uniform borrower assistance form, a hardship letter, a financial worksheet/borrower information form, a form 4506-T tax document (which lists tax information from past years), and a signed Dodd-Frank certification (which was needed to apply for a loan modification and stated that the signatory to the form had not been involved in a real estate transaction that resulted in a conviction for forgery, tax evasion, larceny or the like).
32. On November 7, 2011, Respondent filed his appearance as counsel for Beata in case number 2010-CH-003374, along with an answer and affirmative defenses on her behalf. In Respondent's affirmative defenses, Respondent claimed that the plaintiffs, Bank of America and Countrywide Home Loans, lacked standing to bring their claim against Beata because they had not attached documents to the complaint to demonstrate that they had an interest in the mortgage.
33. On January 6, 2012, plaintiffs' counsel, Codilis & Associates ("Codilis"), filed in case number 2010-CH-003374, and served upon Respondent, a motion to strike Respondent's affirmative defenses, and argued that Respondent had failed to plead facts sufficient to support his argument that the plaintiffs lacked standing to bring their suit against Beata. Codilis scheduled a hearing on its motion to be held on February 1, 2012. Soon after, Respondent received notice of the motion and of the hearing date, but did not file a response to the motion.
34. As of January 27, 2012, Respondent still had not submitted a request that Beata's lender modify the terms of her loan, but he sent a separate letter to Bank of America Home Loans Servicing, advising the company not to contact Beata directly about her mortgage loan because Beata had hired Respondent to represent her in pursuing a loan modification. Bank of America responded by way of a February 29, 2012 letter, sent to Beata and Respondent, acknowledging receipt of Respondent's January 27, 2012 letter.
35. On February 1, 2012, Respondent appeared for the hearing on Codilis' motion to strike Respondent's affirmative defenses, and obtained leave of court to withdraw the answer and affirmative defenses he had filed on Beata's behalf.
36. As of May 11, 2012, Respondent had not filed a second answer or other pleading on Beata's behalf. Respondent knew that not filing an answer for Beata, or any other pleading relating to her defense, compromised Beata's ability to defend the case.
37. On May 11, 2012, Codilis filed in case number 2010-CH-003374, and served upon Respondent, a motion for summary judgment and a motion for judgment of foreclosure and sale against Beata's property, and scheduled those motions to be heard on May 16, 2012. The summary judgment motion argued that Respondent had failed to plead that an issue of material fact existed in Beata's case. Shortly thereafter, Respondent received notice of both of the motions.
38. On May 11, 2012, Respondent filed a second answer and affirmative defenses in case number 2010-CH-003374, but did not file a response to the summary judgment motion. The second answer did not raise new facts, but again argued that the plaintiffs lacked standing to bring their claim against Beata because they did not have an interest in Beata's mortgage.
39. As of May 16, 2012, Respondent had not filed a response to either of the motions filed by Codilis and referred to in paragraph 37.
40. On May 16, 2012, Respondent was not present at the hearing on Codilis' motions for summary judgment and for foreclosure and sale against Beata. On that day, the Honorable Richard Siegel granted both of Codilis' motions and found that Respondent had not raised any issues of material fact to preclude the entry of summary judgment against Beata. Shortly thereafter, Respondent received notice of the May 16, 2012 court order regarding both motions, but he did not notify Beata of either the entry of the order or its significance.
41. As of August 1, 2012, Respondent had not taken any action to submit Beata's loan modification application to her lender.
42. On August 1, 2012, Beata completed and signed a copy of a Home Affordable Modification Program ("HAMP") application to request a modification of her mortgage loan and gave it to Respondent.
43. As of August 23, 2012, Respondent still had not submitted Beata's signed HAMP application to her lender.
44. On August 23, 2012, over three months after judgment had been entered against Beata, Respondent filed in case number 2010-CH-003374, a motion to continue the sale of Beata's home, alleging that Beata had applied, and was still being evaluated, for assistance under HAMP. In his motion, Respondent included a copy of an affidavit from Beata which stated that she believed she was being considered for a loan modification, as well as a copy of Beata's HAMP application, even though Respondent still had not submitted it to her lender. Respondent scheduled a hearing on the motion for September 5, 2012. Shortly thereafter, Codilis received notice of Respondent's motion.
45. Respondent's claims in his motion concerning the submission of Beata's HAMP application were false because, at the time Respondent made these statements in his motion, neither Beata nor Respondent had submitted Beata's August 1, 2012 HAMP application to Bank of America.
46. At the time Respondent filed his motion, he knew that his claims concerning the submission of Beata's HAMP application were false, because he knew that neither Beata nor Respondent had submitted Beata's August 1, 2012 HAMP application to Bank of America as of the time he made the claims.
47. On September 5, 2012, Respondent was present in court when Judge Siegel denied, without prejudice, Respondent's motion to continue the sale of Beata's property in case number 2010-CH-003374. Shortly thereafter, Respondent received notice of the order, but did not advise Beata of the entry of the order, the upcoming sale of her property, or that she needed to vacate her property in advance of the sale.
48. On September 19, 2012 Beata's property was sold to a third-party purchaser at a public sale at the Will County Courthouse. Shortly after, Respondent received notice of the sale.
49. On September 22, 2012, the third-party purchaser of Beata's former home spoke to Beata on the phone and advised her that her property had been sold at a public sale and that she would need to vacate her property. Shortly after finding out about the sale, Beata called and spoke to Respondent, who told Beata that the sale of her property had been "a mistake."
50. Respondent's statement to Beata that the judicial sale of her home had been a mistake was false, because Beata's property had not been sold by mistake, but was sold after Judge Siegel had entered summary judgment against Beata and later denied Respondent's motion to continue the sale of Beata's property.
51. Respondent knew his statement to Beata that the judicial sale of her home had been a mistake was false because he knew Beata's property had not been sold by mistake, but was sold after Judge Siegel entered summary judgment against Beata and then denied Respondent's motion to continue the sale of Beata's property.
52. As of October 12, 2012, Respondent still had not submitted the signed HAMP application to Beata's lender. On that date, Respondent filed in case number 2010-CH-003374 a motion to set aside the sale of Beata's property, falsely claiming that, prior to the September 19, 2012 sale, Beata was being considered for assistance under the Making Home Affordable Program and that a foreclosure sale could not occur while that application was being evaluated. Respondent scheduled a hearing on the motion for October 24, 2012. Shortly thereafter, Codilis received notice of Respondent's motion.
53. Respondent's statement that Beata was being considered for assistance under the Making Home Affordable Program was false, because he had not submitted that application and it was not being considered.
54. At the time Respondent filed his motion, he knew that the statement he made in his motion that Beata was being considered for assistance under the Making Home Affordable Program was false, because he knew he had not submitted the application.
55. On October 24, 2012, Judge Siegel struck case number 2010-CH-003374 from the call because, on that day, Respondent filed a Chapter 13 bankruptcy petition for Beata with the United States bankruptcy court under case number 12 B 42195 ("first bankruptcy"). Respondent filed the bankruptcy petition in case number 12 B 42195 with the expectation that Judge Siegel would stay the third-party purchaser's right to occupy Beata's property after being notified of the bankruptcy filing, and that Beata would be able to reside in her property for the next 30 days.
56. At the time Respondent filed Beata's petition to initiate case number 12 B 42195, Section 521 of the bankruptcy code required that a correctly-filed Chapter 13 bankruptcy petition include a certificate of credit counseling, a bankruptcy plan, a bankruptcy statement, and a bankruptcy schedule for the debtor. At the time that Respondent filed the first bankruptcy for Beata, Respondent did not include any of those documents with his filing.
57. On November 20, 2012, Gerald Mylander ("Mylander"), an attorney with the United States Trustees' Office, filed and served upon Respondent a motion to dismiss Beata's bankruptcy due to Respondent's failure to file all of the documents required by section 521 of the bankruptcy code. Mylander scheduled the motion to be heard on November 30, 2012. Shortly thereafter, Respondent received notice of the motion, but did not advise Beata of the motion or the scheduled hearing date, nor did he file a response to the motion.
58. On November 30, 2012, the Honorable Bruce Black granted Mylander's motion and dismissed Beata's bankruptcy because Respondent had not filed the required certificate of credit counseling, bankruptcy plan, bankruptcy statement or schedule on Beata's behalf. Additionally, Judge Black lifted the stay on the occupancy of Beata's property, because the sale of her property had already been completed as of September 13, 2012, when Beata's property had been sold to a third-party purchaser, which was before Respondent filed Beata's bankruptcy petition.
59. As of December 12, 2012, less than two weeks after the first bankruptcy filing was dismissed, and having learned no new information that would have changed Beata's eligibility to receive relief from the judgment in the foreclosure case (2010-CH-003374), Respondent filed a second Chapter 13 bankruptcy petition for Beata in the United States bankruptcy court, under docket number 12 B 48671 ("second bankruptcy"), again intending to stay the third-party purchaser's right to occupy Beata's property so Beata could reside in her property for an additional 30 days.
60. When Respondent filed Beata's second bankruptcy, not only had he not obtained any new information affecting her eligibility for relief from the foreclosure judgment, but he again did not include the documents required by Section 521 of the bankruptcy code, including a bankruptcy plan, a statement of Beata's current monthly income or a certificate of credit counseling.
61. When Respondent filed Beata's second bankruptcy petition, he had received $10,000 in fees from her, but when he filed a schedule E form in the second bankruptcy case, listing the amount of fees he had been paid, Respondent falsely stated that Beata had paid him $3,500 for his legal services.
62. Respondent's statement in the schedule E form that Beata had paid him $3,500 for his legal services was false, because Beata had paid him $10,000, and not $3,500.
63. At the time Respondent filed the schedule E form in Beata's second bankruptcy case, he knew that his statement that Beata had paid him $3,500 for his legal services was false, because he knew Beata had paid him $10,000, and not $3,500
64. On January 4, 2013, Mylander filed and served upon Respondent a motion to dismiss Beata's second bankruptcy case for failure to file required documents pursuant to Section 521 of the bankruptcy code. Mylander scheduled the motion to be heard on February 4, 2013. Shortly thereafter, Respondent received notice of the motion.
65. In that motion to dismiss, Mylander asked the bankruptcy court to conduct an investigation into Respondent's fees in the Beata matter, and argued that Beata paid Respondent more than the $3,500 Respondent claimed in the schedule E form he filed with his bankruptcy filing.
66. On January 13, 2013, the third-party purchasers of Beata's home, DJS Action, LLC and DG Enterprises, LLC, by their attorney, Dorothy Seaborg ("Seaborg"), filed in the foreclosure case (2010-CH-003374), and served upon Respondent, a motion to confirm the sale of Beata's property and grant occupancy to the purchasers, and scheduled the motion to be heard on January 16, 2013. Shortly thereafter, Respondent received notice of the motion and of the hearing date, but did not advise Beata of either the filing of the motion or of the hearing date.
67. On January 16, 2013, Judge Siegel continued the hearing on the purchasers' motion to confirm the sale of Beata's home to January 23, 2013, and granted Respondent leave to file a response to the motion to confirm the sale.
68. As of January 23, 2013, Respondent had not filed a response to the motion to confirm, and on that date, Judge Siegel granted the purchasers' motion to confirm their September 19, 2012 purchase of Beata's property. Judge Siegel also allowed DJS Action, LLC and DG Enterprises, LLC occupancy of Beata's property in 30 days, or by February 23, 2013.
69. On February 1, 2013, Judge Black granted Mylander's motion and dismissed Beata's second bankruptcy case due to Respondent's failure to have filed a plan, a statement of current monthly income, or a certificate of credit counseling. The judge also granted Mylander's request to conduct an examination regarding Respondent's fees, and granted time for Respondent and Mylander to address the issue of fees.
70. On February 22, 2013, the day before third-party plaintiffs DJS Action, LLC and DG Enterprises, LLC were to gain access to Beata's property, having obtained no new information that would have changed Beata's eligibility for receiving homeowner relief, and with the intent to delay Beata's foreclosure case, Respondent filed a motion in case number 2010-CH-003374 to reconsider Judge Siegel's January 23, 2013 order. Respondent scheduled the motion to reconsider be heard on March 20, 2013.
71. On March 8, 2013, Seaborg filed an emergency motion to advance the March 20, 2013 hearing date regarding Respondent's motion to reconsider Judge Siegel's January 23, 2013 order. Seaborg scheduled a hearing date on the emergency motion for March 13, 2013. Shortly thereafter, Respondent received notice of the emergency motion, but did not file a response to it and did not advise Beata of the motion or the hearing date.
72. On March 13, 2013, Judge Siegel denied, with prejudice, Respondent's motion to reconsider the approval of the sale of Beata's property in the foreclosure case and ordered that Respondent and Beata waive all claims and challenges against them in the foreclosure case. Judge Siegel also granted occupancy to DJS Action, LLC and DG Enterprises, LLC by March 31, 2013.
73. On June 13, 2013, at a hearing regarding the examination of Respondent's fees in Beata's second bankruptcy case, Judge Black granted Mylander's motion and ordered Respondent to disgorge $2,033 in attorney fees to Beata and to pay the trustee $3,010. Respondent paid the required amounts shortly thereafter.
74. Between October 2011 and June 13, 2013, Respondent never submitted a loan modification on Beata's behalf.
75. By reason of the conduct described above, Respondent has engaged in the following misconduct:
failing to act with reasonable diligence and promptness in representing a client, by conduct including not having ever submitted Beata's loan modification application, not filing a response to the summary judgment motion pending against Beata in the foreclosure case, not alleging a factual basis to the pleadings filed, and not filing supporting documents with the bankruptcy petitions, in violation of Rule 1.3 of the Illinois Rules of Professional Conduct (2010);
failing to keep the client reasonably informed about the status of the matter, by conduct including not advising Beata that her property had been sold at a sheriff's sale or explaining its significance, and telling Beata that the sale of her property had been "a mistake," in violation of Rule 1.4(a)(3) of the Illinois Rules of Professional Conduct (2010);
bringing or defending a proceeding, or asserting or controverting an issue therein, when there was no basis in law or fact for doing so that was not frivolous, which includes a good-faith argument for an extension, modification or reversal of existing law, by conduct including filing Beata's first and second bankruptcies, as well as filing a motion to reconsider approving the motion to confirm, having learned nothing that would have changed Beata's eligibility for receiving homeowner relief, and with the intent to delay Beata's foreclosure case, in violation of Rule 3.1 of the Illinois Rules of Professional Conduct (2010);
making a false statement of fact to a tribunal, by conduct including knowingly understating the amount of fees he had received from Beata and falsely advising the judge in the foreclosure action that he had submitted Beata's loan modification application, in violation of Rule 3.3(a) of the Illinois Rules of Professional Conduct (2010);
using means that have no substantial purpose other than to embarrass, delay, or burden a third person, by conduct including filing Beata's first and second bankruptcies, as well as filing a motion to reconsider approving the motion to confirm, having learned nothing that would have changed Beata's eligibility for receiving relief from the foreclosure judgment, and with the intent to delay Beata's foreclosure case, in violation of Rule 4.4(a) of the Illinois Rules of Professional Conduct (2010); and
engaging in conduct involving dishonesty, fraud, deceit, by conduct including knowingly understating the amount of fees he had received from Beata to the bankruptcy court, that Beata paid Respondent, and falsely advising the judge in the foreclosure action that he had submitted Beata's loan modification application, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010).
COUNT III
(Lack of diligence, failure to comply with requests for information, failure to keep a client informed, failure to refund an unearned fee, failure to expedite litigation, conduct involving dishonesty in the Wolowiec matter)
76. On September 30, 2011, Laura Wolowiec ("Wolowiec") and Respondent agreed that Respondent would assist Wolowiec in efforts to obtain a modification of the mortgage on property she owned in Lemont. They agreed that Wolowiec would pay Respondent $950 for the first month he represented her and $495 each month thereafter until the matter was concluded.
77. Between October 2011 and December 2011, at Respondent's request, Wolowiec prepared and submitted paperwork to Respondent for his review in preparing an application to modify the terms of Wolowiec's mortgage. Included in the paperwork Wolowiec submitted to Respondent were bank statements, a household liabilities and expenses form, a uniform borrower assistance form, a hardship letter, a financial worksheet, a 4506-T tax form (which listed tax information from past years), and a signed Dodd-Frank certification (which was needed to apply for a loan modification and stated that the signatory to the form was not involved in a real estate transaction that resulted in a conviction for forgery, tax evasion, larceny or the like).
78. In December 2011, Respondent sent a letter to Wolowiec's mortgage lender, Fifth Third Bank ("Fifth Third"), advising the bank that Respondent represented Wolowiec and requesting that Fifth Third not contact Wolowiec in the future.
79. As of December 2, 2011, Respondent, who had received, all of the paperwork he needed from Wolowiec to submit a loan modification application for her, had not submitted an application to modify the terms of Wolowiec's mortgage. On that date, Fifth Third, by its attorneys, Codilis & Associates ("Codilis"), filed a complaint for foreclosure against Wolowiec in the matter of Fifth Third Mortgage Co. v. Wolowiec, et al., docket number 2012-CH-03720 (Circuit Court of Cook County, Chancery Division).
80. On February 8, 2012, Wolowiec was served with the complaint and a summons in case number 2012-CH-03720. The summons stated that a return date in the case had been scheduled for April 4, 2012.
81. Upon receipt of the complaint and summons, Wolowiec called Respondent and told him of the return date. At that time, Respondent and Wolowiec agreed that Respondent would continue to assist Wolowiec in attempting to modify the terms of her existing mortgage, appear on her behalf at the April 4, 2012 return date in case number 2012-CH-03720, and represent her in that case until that matter was resolved.
82. As of April 4, 2012, Respondent had not filed an appearance, answer or other pleading for Wolowiec, and was not in court when case number 2012-CH-03720 was called. In Respondent's absence, the Honorable Robert Senechalle struck the case from the call and determined that no future case management conferences were needed, since the plaintiff, who was present in court that day through its counsel, had served all of the parties to the litigation and none of them had appeared.
83. On April 5, 2012, at a meeting at Respondent's office, Respondent falsely told Wolowiec that he had been present in court for the April 4, 2012 hearing in case number 2012-CH-03720.
84. Respondent's April 5, 2012 statement to Wolowiec was false, because he had not attended the April 4, 2012 hearing in case number 2012-CH-03720.
85. Respondent knew that his statement to Wolowiec concerning the April return date was false, because he knew he had not attended the April 4, 2012 hearing in case number 2012-CH-03720.
86. About a week later, Respondent sent Wolowiec a letter that falsely stated that he had been present at the April 4, 2012 return date in case number 2012-CH-03720, but that court had been canceled that day because the defendants had not been served.
87. Respondent's statement in his letter to Wolowiec was false, because Respondent was not present at the April 4, 2012 return date, and the court date had not been canceled in case number 2012-CH-03720.
88. Respondent knew that his statement in his letter to Wolowiec about his presence at the April 4, 2012 hearing was false, because Respondent knew he had not been present at the April 4, 2012 hearing, and that the court date had not been canceled.
89. On May 10, 2012, Codilis filed in case number 2012-CH-03720, and served upon Wolowiec, a motion for default against various parties, including Wolowiec, based on their failure to file an appearance or answer in the case. Codilis scheduled a hearing on the motion for default to be held on June 20, 2012. Shortly thereafter, Wolowiec received notice of Codilis' motion, called Respondent and left a message asking him to call her. Respondent received Wolowiec's message shortly thereafter, but he did not reply to her.
90. As of May 29, 2012, Respondent had not filed an appearance or answer for Wolowiec in case number 2012-CH-0320.
91. On May 29, 2012, Wolowiec and Respondent met at Respondent's office. During that meeting, Respondent showed Wolowiec the purported appearance and answer in case number 2012-CH-03720, with a hand-written date of May 25, 2012 on it, that he claimed he had filed for her on May 25, 2012.
92. Respondent's May 29, 2012 statement to Wolowiec that he had filed his appearance and answer for Wolowiec was false, because, as of the date of their meeting, Respondent had not filed an appearance as Wolowiec's counsel, an answer on her behalf, or any other documents in the case.
93. Respondent knew that his May 29, 2012 statement to Wolowiec was false, because, as of the date of their meeting, Respondent knew that he had not filed an appearance as Wolowiec's counsel, an answer on her behalf, or any other documents in the case.
94. On June 1, 2012, Respondent, without leave of court, paid the clerk and filed his appearance and an answer in case number 2012-CH-03720, and also filed a motion seeking leave of court to file his appearance and answer on Wolowiec's behalf. He scheduled a hearing on the motions to be held on June 20, 2012. Shortly after, Codilis received notice of Respondent's filings. In Respondent's proposed answer, he stated, without elaboration or support, that Wolowiec lacked sufficient knowledge on which to base a belief as to the truth or falsity of certain allegations against Wolowiec.
95. On June 20, 2012, Judge Senechalle denied Respondent's motion to file an appearance, answer and other pleadings in case number 2012-CH-03720. On his own motion, the judge struck Respondent's answer as incomplete based on its lack of detail and sanctioned Respondent $250 for violating Illinois Supreme Court Rule 137 by incompletely answering the complaint. Judge Senechalle also granted Respondent leave to file an amended answer.
96. On July 10, 2012, Respondent filed his amended answer, generally admitting to the allegations against Wolowiec but also stating that he lacked sufficient knowledge on which to base a belief as to the truth or falsity of some of the allegations. Respondent also filed the same affirmative defenses that he attempted to file in June, and that Judge Senechalle had stricken.
97. On September 6, 2012, Codilis filed in case number 2012-CH-03720, and served upon Respondent and Wolowiec, a motion for sanctions against Respondent based on Respondent's July 2012 amended answer. The motion alleged that Respondent, despite Judge Senechalle's previous court order and sanction, continued to claim that he lacked sufficient knowledge to answer to the complaint, and that Respondent had not consulted with, or obtaineed information from, Wolowiec in order to answer, with specificity, the allegations against her. Codilis scheduled a hearing on the motion for sanctions to be held on September 21, 2012. Shortly thereafter, Respondent and Wolowiec received notice of Fifth Third's motion. Respondent did not respond to the motion.
98. Upon receipt of the motion, Wolowiec tried to contact Respondent on September 18 and 20, 2012, via email and telephone, and left him at least two messages. Respondent received those messages, but did not reply to Wolowiec's attempts to contact him.
99. On September 21, 2012, Judge Senechalle struck Respondent's amended answer and affirmative defenses in case number 2012-CH-03720, granted Respondent 14 days to file a second amended answer and affirmative defenses, and denied Codilis' motion for sanctions.
100. On October 5, 2012, Respondent filed a second amended answer and affirmative defenses in case number 2012-CH-03720, which were identical to the July 2012 answer and affirmative defenses, which stated that he lacked sufficient knowledge with which to answer the complaint against Wolowiec.
101. On October 23, 2012, Codilis filed in case number 2012-CH-03720, and served upon Respondent and Wolowiec, a motion for an extension of time to answer or otherwise plead to Respondent's second amended affirmative defenses, and scheduled a hearing on the motion to be held on January 16, 2013. Shortly thereafter, Respondent received notice of Fifth Third's motion, but did not respond to it.
102. On January 16, 2013, Judge Senechalle granted Codilis' motion for an extension of time to answer, and gave both parties additional time to respond and reply to Respondent's second amended affirmative defenses. Judge Senechalle continued the matter to March 22, 2013 for a hearing on Respondent's second affirmative defenses. Shortly thereafter, Respondent and Wolowiec received notice of plaintiff's response to Respondent's second amended affirmative defenses, but Respondent did not file a reply to it.
103. As of March 21, 2013, Codilis had filed a reply to Respondent's second affirmative defenses, requesting that Respondent's affirmative defenses be stricken because Respondent failed to allege facts sufficient to establish a valid affirmative defense to plaintiff's foreclosure action. Shortly thereafter, Respondent received notice of plaintiff's reply.
104. On March 21, 2013, the day before the hearing, Respondent emailed Wolowiec and told her they did not have court the following day in case number 2012-CH-03720. When Wolowiec questioned Respondent, he responded to her, in part, by stating:
No there will not be a hearing tomorrow?That's ok, we can put it back on the court schedule. Not a big deal. We often don't know until the days before because neither I nor the bank's attorneys can predict their schedules weeks in advance as they change daily.
105. Respondent's March 21, 2013 statement to Wolowiec, that there would be no hearing set for May 22, 2013, was false, because at the time of Respondent sent that email, a hearing remained scheduled for May 22, 2013 in case number 2012-CH-03720.
106. Respondent knew that that his March 21, 2013 statement to Wolowiec, that there would be no hearing set for May 22, 2013, was false, because he knew, at the time he sent that email, that a hearing remained scheduled for May 22, 2013 in case number 2012-CH-03720.
107. Upon receiving Respondent's email on March 21, 2013, Wolowiec tried at least twice to contact Respondent, via email and telephone. Respondent received those messages shortly after they were left, but Respondent did not reply to Wolowiec.
108. On March 22, 2013, Respondent was present at the hearing regarding Codilis' motion concerning the second affirmative defenses, but Wolowiec was not present. On that day, Judge Senechalle granted plaintiff's motion and struck Respondent's second answer and affirmative defenses.
109. Between March 22 and April 3, 2013, Respondent did not file a third answer and affirmative defenses, or any other pleading, in Wolowiec's defense. Respondent knew that he compromised Wolowiec's defense by not filing anything on her behalf.
110. Between March 22 and April 3, 2013, Wolowiec tried to reach Respondent by emailing and leaving telephone messages for Respondent. Respondent only responded to Wolowiec's attempts to contact him once, on March 28, 2013, when he canceled a scheduled meeting with Wolowiec.
111. On April 3, 2013 Codilis filed in case number 2012-CH-03720, and served upon Respondent, a motion for summary judgment against Wolowiec as well as a motion for an order of default and judgment of foreclosure and sale. Codilis also notified Respondent that the motions were scheduled to be presented on June 11, 2013.
112. On May 30, 2013, Wolowiec sent a letter to Respondent, which he received via certified mail on May 31, 2013, advising him that she was terminating his representation of her in case number 2012-CH-03720 and asked that he withdraw from her case by the June 11, 2013 court date. Wolowiec also asked that Respondent immediately provide her with her client file.
113. On June 3, 2013, Wolowiec faxed another copy of that same letter to Respondent, which he received shortly thereafter.
114. On June 11, 2013, Wolowiec appeared before Judge Senechalle, pro se, and advised the court that she no longer desired to have Respondent represent her in connection with case number 2012-CH-03720. Accordingly, Judge Senechalle struck Respondent's appearance from Wolowiec's case.
115. On June 18, 2013 Respondent responded to Wolowiec's termination letter via email and said that he would return the client file. In that email, Respondent also offered to refund half of his fees, about $5,177, to Wolowiec.
116. As of June 18, 2013, Respondent had not filed a loan modification application on Wolowiec's behalf.
117. On June 21, 2013, Wolowiec emailed Respondent and accepted Respondent's offer to return the file as well as Respondent's offer to refund half of the fees she paid him.
118. On August 8, 2013, Respondent returned the file but not the fees he had offered to return to Wolowiec.
119. As of September 14, 2013, the date Wolowiec filed a request that the Administrator investigate Respondent's handling of her case, Respondent had not issued a refund for any of the unearned legal fees or costs paid by Wolowiec.
120. By reason of the conduct described above, Respondent has engaged in the following misconduct:
failing to act with reasonable diligence and promptness in representing a client, by conduct including not submitting a loan modification application for Wolowiec, not attending the April 2012 return date, not timely filing an appearance or answer for Wolowiec, and, twice, filing incomplete pleadings on behalf of Wolowiec that the judge struck each time, in violation of Rule 1.3 of the Illinois Rules of Professional Conduct (2010);
failing to comply with reasonable requests for information, by conduct including not responding to Wolowiec's emails and telephone calls, falsely stating he went to the April 2012 return date when he had not done so, falsely claiming that the May 2013 hearing date had been canceled, in violation of Rule 1.4(a)(3) of the Illinois Rules of Professional Conduct (2010);
failing to keep a client reasonably informed about the status of a matter, by conduct including not responding to Wolowiec's emails and telephone calls, falsely stating he had gone to the April 2012 return date when he had not done so, and falsely claiming that the May 2013 hearing date had been canceled, in violation of Rule 1.4(a)(4) of the Illinois Rules of Professional Conduct (2010);
failing to refund any advance payment of fee or expense that has not been earned or incurred, by conduct including offering to return half of his fees to Wolowiec and then not doing so, in violation of Rule 1.16(d) of the Illinois Rules of Professional Conduct (2010);
bringing or defending a proceeding, or asserting or controverting an issue therein, when there was no basis in law or fact for doing so that was not frivolous, which includes a good-faith argument for an extension, modification or reversal of existing law, by conduct including filing an amended answer and affirmative defenses that were identical to the answer and affirmative defenses that had been struck by the court, as well as an identical amended answer and affirmative defenses, both of which were the same and without new facts, in violation of Rule 3.1 of the Illinois Rules of Professional Conduct (2010);
failing to make reasonable efforts to expedite litigation consistent with the interests of the client, by conduct including failing to file a loan modification application for Wolowiec and filing incomplete pleadings on behalf of Wolowiec, twice, that the judge struck each time, in violation of Rule 3.2 of the Illinois Rules of Professional Conduct (2010).
using means that have no substantial purpose other than to embarrass, delay, or burden a third person, by conduct including filing Wolowiec's first and second bankruptcies, as well as filing a motion to reconsider approving the motion to confirm, having learned nothing that would have changed Beata's eligibility for receiving homeowner relief, and with the intent to delay Wolowiec's foreclosure case, in violation of Rule 4.4(a) of the Illinois Rules of Professional Conduct (2010); and
conduct involving dishonesty, fraud, deceit, or misrepresentation, by conduct including misrepresenting to Wolowiec the status of her case and the court schedule, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010).
COUNT IV
(Lack of diligence, failure to comply with requests for information, failure to keep a client informed, failure to provide notice to a tribunal regarding termination, failure to refund an unearned fee, failure to expedite litigation, conduct involving dishonesty in the Fajutrao matter)
121. On November 6, 2011, Renee Fajutrao ("Fajutrao") was served with a complaint for foreclosure and a summons with a January 5, 2012 return date, regarding her property in Morton Grove, in the matter of Citicorp Trust Bank, FSB. v. Renee Fajutrao, et al., case number 2011-CH-38351 (Circuit Court of Cook County, Chancery Division).
122. On November 30, 2011, Fajutrao and Respondent agreed that Respondent would attend the January 5, 2011 return date, file his appearance as her attorney, and continue to defend her in throughout the pendency of her case. They also agreed that Fajutrao would pay Respondent $950 for the first month that he represented her and $495 each month thereafter until the matter was concluded.
123. On January 5, 2012, Respondent did not attend the initial scheduled hearing in case number 2011-CH-38351. On that date, the Honorable Jean Rooney determined that no further case management conferences were needed in the case, since the plaintiff, who was present in court that day through its counsel, provided proof that it had served all of the parties to the case. Shortly thereafter, Fajutrao received the court order, called Respondent, and told him about it.
124. As of March 14, 2012, Respondent had not filed his appearance as Fajutrao's counsel, or any answer or other pleadings on her behalf, in case number 2011-CH-38351.
125. On March 14, 2012, Citicorp's counsel filed in case number 2011-CH-38351, and served upon Fajutrao, a motion for default, with notice that a hearing on the motion had been scheduled for April 4, 2012. Soon after, Fajutrao received copies of Citicorp's motion and notice. Fajutrao sent notice of the motion to Respondent, which he received shortly thereafter, but he did not contact Fajutrao or file anything on her behalf in response to Citicorp's motion.
126. Between March 14, 2012 and April 4, 2012, Fajutrao called Respondent at least three times and left messages asking to discuss the upcoming hearing on Citicorp's motion for default. Respondent received those messages shortly after Fajutrao left them, but he did not contact her.
127. As of April 4, 2012, Respondent still had not filed an appearance, answer or other pleading on Fajutrao's behalf, nor did he file a motion to strike or vacate Citicorp's motion for default. On that date, Judge Rooney granted Citicorp's motion for default and entered judgment of foreclosure and order of sale on Fajutrao's property.
128. Shortly thereafter, Fajutrao received a copy of the April 4, 2012 court order and sent it to Respondent, who received it soon after. Fajutrao called Respondent and left a message regarding the order. Respondent received the message soon after, but did not return her call.
129. On April 5, 2012, Danielle Nielsen, a secretary at Respondent's office, faxed a copy of Fajutrao's loan modification documents to CITI Mortgage and received a fax confirmation that the documents had been received.
130. On July 16, 2012, Fajutrao's property was sold at a public auction.
131. As of July 23, 2012, Respondent still had not filed an appearance, answer or other pleading on Fajutrao's behalf, nor did he file a motion to vacate Citicorp's motion for default in Fajutrao's defense in case number 2011-CH-38351.
132. On July 23, 2012, Citicorp's counsel filed in case number 2011-CH-38351, and served upon Fajutrao, a motion seeking confirmation of the July 16, 2012 sale of Fajutrao's property and an order for possession, and scheduled a hearing on the motion for August 15, 2012. Shortly thereafter, Fajutrao received notice of Citicorp's motion and sent it to Respondent. Respondent received a copy of the motion seeking confirmation soon after, but he did not file a response to it.
133. On August 15, 2012, the Honorable Arthur Wheatley granted Citicorp's motion confirming the sale of Fajutrao's property. Fajutrao later received notice of the court order and sent it to Respondent, who received it soon after.
134. On September 14, 2012, Fajutrao filed, and served upon Citicorp, a pro se appearance and an emergency motion to extend the stay of possession of her home until October 15, 2012 in case number 2011-CH-38351. She scheduled a hearing on the motion for September 17, 2012 and sent notice to Citicorp, which received it soon after.
135. On September 17, 2012, Judge Rooney granted Fajutrao's pro se motion and ordered a stay on possession of Fajutrao's property up to and including October 15, 2012.
136. On September 17, 2012, Fajutrao faxed and mailed a letter to Respondent advising him that she was terminating his services. She also asked that Respondent give her back her file within 30 days. Shortly thereafter, Respondent received Fajutrao's fax and letter.
137. On September 18, 2012, Respondent called Fajutrao and asked to meet with her on September 20, 2012 to offer her a full refund of the money she paid him, as well as to show Fajutrao the work he had done in case number 2011-CH-38351.
138. On September 19, 2012, after having already received Fajutrao's termination letter after Fajutrao's property had been sold two months prior, Respondent filed and served upon Citicorp his appearance as counsel for Fajutrao as well as motions to vacate the default judgment and to stay the eviction. Respondent scheduled a hearing on both of the motions for November 19, 2012. Shortly thereafter, Citicorp received notice of Respondent's motions.
139. On September 20, 2012, Respondent met with Fajutrao and gave her unstamped copies of his motions to vacate the default judgment and to stay the eviction. Although Respondent knew that he had scheduled his motions to be heard on November 19, 2012, Respondent hand-wrote an October 19, 2012 hearing date on the documents he gave his client to create the false impression that he had scheduled the hearing date one month sooner than was actually the case.
140. Respondent's hand-written date of October 19, 2012 on the copies of the motions was false, because the actual hearing date for Respondent's motions was November 19, 2012.
141. Respondent knew that the October 19, 2012 date on the copies of the motions was false, because he knew the hearing on the motions was scheduled for November 19, 2012, and not October 19, 2012.
142. On September 24, 2012, Fajutrao faxed Respondent another letter terminating his services and also asking him for a full refund of the fees she had paid Respondent. Shortly thereafter, Respondent received the letter, but he did not respond to it.
143. On October 10, 2012, Fajutrao filed a pro se emergency motion in case number 2011-CH-38351 to extend the stay of possession on her property and scheduled a hearing on the motion for October 11, 2012. Shortly thereafter, Citicorp received notice of Fajutrao's motion.
144. On October 11, 2012, Judge Rooney granted Fajutrao's motion to extend the stay of possession on her property until November 10, 2012.
145. On November 19, 2012, Judge Rooney denied Respondent's motion to vacate the April 4, 2012 default judgment in case number 2011-CH-38351, but granted Respondent's motion to stay the eviction from Fajutrao's property up to and including December 19, 2012.
146. On January 24, 2013, Fajutrao filed a malpractice lawsuit against Respondent to initiate the matter entitled, Fajutrao, et. al v. Tracy, case number 2013-M1-104962 (Circuit Court of Cook County, Civil Division). On July 11, 2014, the parties entered an agreed dismissal order, pursuant to their settlement, wherein Respondent was to pay Fajutrao $7,500.
147. As of the date that Panel C of the Inquiry Board voted to file a complaint against Respondent relating to his representation of Fajutrao, Respondent had paid Fajutrao only $2,500 of the settlement amount.
148. By reason of the conduct described above, Respondent has engaged in the following misconduct:
failing to act with reasonable diligence and promptness in representing a client, by conduct including not attending the return date and other motion dates, not timely filing an appearance or answer for Fajutrao, and not filing responses to the motions to default and to confirm sale that had been filed against Fajutrao, in violation of Rule 1.3 of the Illinois Rules of Professional Conduct (2010);
failing to comply with reasonable requests for information, by conduct including not responding to Fajutrao's telephone calls, emails or mailed copies of pleadings, in violation of Rule 1.4(a)(3) of the Illinois Rules of Professional Conduct (2010);
failing to keep a client reasonably informed about the status of a matter, by conduct including not responding to Fajutrao's telephone calls, emails, mailed copies of pleadings, fax or letter of termination, in violation of Rule 1.4(a)(4) of the Illinois Rules of Professional Conduct (2010);
where representation has commenced, not withdrawing from the representation of a client if the lawyer is discharged, by conduct including not advising the court that Fajutrao terminated Respondent's representation, as well as appearing and presenting his motion to vacate the April 4, 2012 default judgment and the motion to stay the eviction from Fajutrao's property, in violation of Rule 1.16(a)(3) of the Illinois Rules of Professional Conduct (2010);
not complying with applicable law requiring notice to or permission of a tribunal when terminating a representation, by conduct including not advising the court that Fajutrao terminated Respondent's representation, as well as appearing and presenting his motion to vacate the April 4, 2012 default judgment and the motion to stay the eviction from Fajutrao's property, in violation of Rule 1.16(c) of the Illinois Rules of Professional Conduct (2010);
failing to refund any advance payment of fee or expenses that has not been earned or incurred, by conduct including not refunding the remaining $5,000 to Fajutrao pursuant to their settlement in the civil litigation matter, in violation of Rule 1.16(d) of the Illinois Rules of Professional Conduct (2010);
bringing or defending a proceeding, or asserting or controverting an issue therein, when there was no basis in law or fact for doing so that was not frivolous, which includes a good-faith argument for an extension, modification or reversal of existing law, by conduct including filing a motion to vacate the default after Fajutrao's house had already been sold, in violation of Rule 3.1 of the Illinois Rules of Professional Conduct (2010);
failing to make reasonable efforts to expedite litigation, by conduct including knowingly filing an appearance and motions to defend Fajutrao's property almost a year after Fajutrao hired Respondent to represent her, in violation of Rule 3.2 of the Illinois Rules of Professional Conduct (2010);
conduct involving dishonesty, fraud, deceit, or misrepresentation, by conduct including making a false statement to Fajutrao about court dates, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010).
COUNT V
(Lack of diligence, failure to expedite litigation, conduct involving dishonesty, false statement to a tribunal, failure to provide notice to a tribunal regarding termination, failure to protect a client upon termination in the Flowers matter)
149. On July 25, 2011, Aurora Loan Servicing filed a complaint for foreclosure against Diacovonne Flowers ("Flowers") regarding her home in Chicago in the matter of Aurora Loan Servicing v. Flowers, et al., case numbers 2011-CH-25980 (Circuit Court of Cook County, Chancery Division).
150. On September 19, 2011, US Bank filed a complaint for foreclosure against Flowers regarding her home in Calumet Park, in the case entitled, US Bank v. Flowers, et al., case number 2011-CH-32643 (Circuit Court of Cook County, Chancery Division).
151. In October 2011, Flowers and Respondent agreed that Respondent would represent Flowers in both of the foreclosure matters, as well as submit loan modification applications on her behalf, and that Flowers would pay Respondent $950 for the first month that he represented her and $495 each month thereafter until both the foreclosure cases and the loan modification application were completed.
2011-CH-25980, Chicago property
152. On October 4, 2011, Respondent filed an appearance on Flowers' behalf in case number 2011-CH-25980.
153. On November 4, 2011, Respondent filed an answer and affirmative defense in response to the lender's complaint. In the affirmative defense, Respondent alleged that Aurora Loan Servicing ("Aurora") did not have standing to bring a claim against Flowers because it did not have an interest in Flowers' loans or her property.
154. On February 9, 2012, Aurora filed its motion to strike Respondent's affirmative defenses, alleging that the affirmative defenses were conclusory and inaccurate. Aurora scheduled the motion to be heard on February 28, 2012. Shortly thereafter, Respondent received notice of Aurora's motion, but did not respond to it.
155. On February 28, 2012, Judge Swanson granted Aurora's motion to strike Respondent's answer and affirmative defense, and granted Respondent 28 days to file responsive pleadings for Flowers. At no time thereafter did Respondent file another answer or affirmative defenses. Respondent knew that he compromised Flowers' ability to defend the case by not filing an answer for Flowers, or any other pleading relating to her defense.
156. On March 30, 2012, Aurora's counsel filed a motion for summary judgment against Flowers in case number 2011-CH-25980, and scheduled it to be heard on April 26, 2012. Aurora's basis for its motion was that because Flowers had not filed another answer after Judge Swanson's February 28, 2012 order striking Flowers' answer, and had not raised any material issues of fact or law, Aurora was entitled to summary judgment on its claims. Soon after, Respondent received notice of the motion, but did not notify Flowers of the motion, and did not file a response to it.
157. On April 26, 2012, Judge Swanson granted Aurora's motion for summary judgment against Flowers in case number 2011-CH-25980. Shortly thereafter, Respondent received the court order, but did not notify Flowers of it and did not file a motion to vacate it.
158. On August 14, 2012, Flowers' property was sold at a public auction.
159. On September 10, 2012, Aurora's counsel filed and served upon Respondent a motion to approve the judicial sale of Flowers' property and scheduled that motion to be heard on October 29, 2012. Shortly thereafter, Respondent received notice of Aurora's motion, but did not notify Flowers of the motion and did not file a response to it.
160. On October 28, 2012, Judge Swanson granted Aurora's motion to approve the sale of Flowers' property. Shortly thereafter, Respondent received notice of the court order, but did not notify Flowers of it and did not file anything to seek reconsideration of the order.
161. As of November 6, 2012, neither Flowers, nor Respondent, had submitted a loan modification application on Flower's behalf.
162. On November 6, 2012, Respondent filed in case number 2011-CH-25980, and served upon Aurora's counsel, a motion to set aside the judicial sale. In his motion, Respondent falsely stated that, in July 2012, prior to the judicial sale, Flowers had applied for a loan modification under the Making Home Affordable Program ("HAMP"), and that she had not yet received a response to her HAMP application. In his motion, however, Respondent did not include proof that Flowers had submitted a HAMP application. Respondent scheduled the motion to be heard on January 14, 2013. Shortly thereafter, Aurora's counsel received notice of the motion.
163. Respondent's statement in his motion to set aside the judicial sale since Flowers had applied for a loan modification was false, because Flowers had not submitted a HAMP application for the mortgage on her Chicago property.
164. Respondent knew that the statement in his motion to set aside the judicial sale since Flowers had applied for a loan modification was false, because Respondent knew that Flowers had not submitted a HAMP application for the mortgage on her Chicago property.
165. On November 9, 2012, Respondent faxed Flowers' HAMP application to Flowers' mortgage company, Nationstar.
166. On December 11, 2012, Flowers sent Respondent a letter terminating Respondent's services and asking that he return her file to her. Respondent received the letter shortly after it was sent, but did not respond to Flowers's letter or return her file to her, nor did Respondent seek or obtain leave of court from Judge Senechalle to withdraw as Flowers' counsel because of the termination.
167. On January 14, 2013, Respondent did not appear for presentation of his motion to set aside the judicial sale. On that day, Judge Swanson denied Respondent's motion to set aside the judicial sale, due at least in part, to Respondent's failure to appear. Soon after, Respondent received notice of the court order but did not notify Flowers of it.
168. In January 2013, despite having been terminated in December 2012, Respondent sent Flowers a monthly invoice of $495.
2011-CH-32643, Calumet Park property
169. On December 1, 2011, Respondent filed an appearance for Flowers in case number 2011-CH-32643, but did not file an answer or any other pleading on Flowers' behalf. Respondent knew that he compromised Flowers' ability to defend the case by not filing an answer for Flowers, or any other pleading relating to her defense.
170. On February 17, 2012, Aurora's counsel, Codilis, filed and served upon Respondent a motion for judgment and foreclosure of sale on Flowers' Calumet Park property on the basis that no answer or affirmative defenses had been filed on Flowers's behalf. Aurora's counsel scheduled the motion to be heard on March 14, 2012. Shortly thereafter, Respondent received notice of Aurora's motion, but did not notify Flowers of the motion and did not file a response to it.
171. Respondent knew that Judge Senechalle was likely to grant Aurora's motion for summary judgment against Flowers if Respondent did not file a response to plaintiff's summary judgment motion or take some action to oppose it, in person, at the March hearing date.
172. On March 14, 2012, Respondent was not present when Judge Senechalle granted Aurora's motion for summary judgment in case number 2011-CH-32643 and entered judgment against Flowers' Calumet Park property. Shortly thereafter, Respondent received notice of the March 14 court order, but did not notify Flowers of it and did not file anything to request that the order be vacated stated or reconsidered.
173. On June 18, 2012, Flowers' property was sold at a public auction.
174. On June 22, 2012, Codilis filed and served upon Respondent a motion to approve the judicial sale of Flowers' Calumet Park property and scheduled it to be heard on July 18, 2012. Shortly thereafter, Respondent received notice of the motion, but did not notify Flowers of it and did not file a response to it.
175. On July 18, 2012, Respondent was not present when Judge Senechalle granted Codilis' motion, and approved a sheriff's sale of Flowers' Calumet Park property and entered an order of possession on it. Shortly thereafter, Respondent received notice of the court order, but did not notify Flowers of it and did not file anything to seek reconsideration of the order.
176. As of October 11, 2012, Respondent had not submitted a loan modification application on Flowers' behalf.
177. On October 11, 2012, Respondent filed and served upon Codilis a motion to vacate the March 2012 judgment in case number 2011-CH-32643 and scheduled the motion to be heard on December 6, 2012, which was approximately another two months after he filed the motion, approximately nine months after the judgment had been entered against Flowers' Calumet Park property, and approximately six months after Flowers' property had been sold. In his motion, Respondent falsely stated that, prior to judgment being entered against her, Flowers had applied for a loan modification under the Home Affordable Modification Program ("HAMP") and, as of the date of Respondent's motion to vacate, Respondent had not yet received a denial letter to Flowers' HAMP application. Respondent did not attach a copy of the purported HAMP application to the motion.
178. Respondent's statement in his motion to set aside the judicial sale since Flowers had applied for a loan modification was false, because Flowers had not submitted a HAMP application for the mortgage on her Calumet Park property.
179. Respondent knew that the statement in his motion to set aside the judicial sale since Flowers had applied for a loan modification was false, because Respondent knew that Flowers had not submitted a HAMP application for the mortgage on her Calumet Park property.
180. On November 9, 2012, Respondent faxed Flowers' HAMP application to Flowers' mortgage company, Nationstar.
181. On December 6, 2013, Judge Senechalle denied Respondent's motion to vacate the July 2012 sale, because the motion did not include a copy of Flowers' purported HAMP application. The judge continued the matter to January 3, 2013, so Respondent could present a copy of Flowers' HAMP application at that time. Shortly thereafter, Respondent received notice of the order, but did not notify Flowers of the judge's order.
182. On December 11, 2012, Flowers sent Respondent a letter terminating his services and asked that her file be returned to her. Shortly thereafter, Respondent received this letter, but did not respond to Flowers' letter or return her file, nor did Respondent seek and obtain leave of court from Judge Senechalle to withdraw as Flowers' counsel based on his termination.
183. On January 3, 2013, Respondent appeared in court but did not produce Flowers' HAMP documents to the court, so Judge Senechalle struck Respondent's motion to vacate the July 2012 sale in case number 2011-CH-32643.
184. On that day, Flowers arrived to court after Judge Senechalle had already stricken Respondent's motion to vacate the July 2012 sale in case number 2011-CH-32643. When Flowers found Respondent at court, she asked him about the status of her case, and Respondent falsely told Flowers that Judge Senechalle had continued her case to January 17, 2013.
185. Respondent's January 3, 2013 statement to Flowers, about the continued court date, was false because Judge Senechalle had stricken case number 2011-CH-32643 and had not continued it to January 17, 2013.
186. Respondent knew that his statement to Flowers on January 3, 2013 about the continued court date was false, because he was present in court before Judge Senechalle that day and knew that Judge Senechalle had not scheduled a hearing in case number 2011-CH-32643 for January 17, 2013.
187. On January 17, 2013, Respondent was not present in court but Flowers was present in court and waited over an hour, but case number 2011-CH-32643 was never called. Flowers then spoke to Aurora's counsel, who informed her that Judge Senechalle had stricken Respondent's motion to vacate on January 3, 2013.
188. In January 2013, despite having been terminated in December 2012, Respondent sent Flowers a monthly invoice of $495.
189. By reason of the conduct described above, Respondent has engaged in the following misconduct:
failing to act with reasonable diligence and promptness in representing a client, by conduct including submitting Flowers' loan modification application over a year after he began representing her, filing an affirmative defense without elaboration or support regarding the Chicago property, not filing a response to the summary judgment motion and motion to approve the judicial sale of the Chicago property, not filing an answer, affirmative defenses, response to the summary judgment motion or response to the motion to approve the judicial sale of the Calumet Park property, in violation of Rule 1.3 of the Illinois Rules of Professional Conduct (2010);
not complying with applicable law requiring notice to or permission of a tribunal when terminating a representation, by conduct including not advising Judge Senechalle and the court that Flowers terminated Respondent's representation, in violation of Rule 1.16(c) of the Illinois Rules of Professional Conduct (2010);
failing to take steps, upon termination of representation, to the extent reasonably practicable, to protect a client's interests, by conduct including not returning Flowers client file, in violation of Rule 1.16(d) of the Illinois Rules of Professional Conduct (2010);
bringing or defending a proceeding, or asserting or controverting an issue therein, when there was no basis in law or fact for doing so that was not frivolous, which includes a good-faith argument for an extension, modification or reversal of existing law, by conduct including filing a motion to set aside the judicial sale of both the Chicago and Calumet Park properties, and alleging that he submitted a loan modification application for both of Flowers' properties, when he had not done so, in violation of Rule 3.1 of the Illinois Rules of Professional Conduct (2010);
failing to make reasonable efforts to expedite litigation consistent with the interests of the client, by conduct including submitting Flowers loan modification application over a year after he began representing her, filing affirmative defenses without elaboration or support regarding the Chicago property, not filing a response to the summary judgment motion and motion to approve the judicial sale of the Chicago property, not filing an answer, affirmative defenses, response to the summary judgment motion or response to the motion to approve the judicial sale of the Calumet Park property, in violation of Rule 3.2 of the Illinois Rules of Professional Conduct (2010);
knowingly making a false statement of fact or law to a tribunal, by conduct including stating in his motion to set aside the judicial sale that he had filed Flowers' loan modification application in July 2012, when he did not file it until November 2012, in violation of Rule 3.3(a)(1) of the Illinois Rules of Professional Conduct (2010).;
using means that have no substantial purpose other than to embarrass, delay, or burden a third person, by conduct including submitting Flowers' loan modification application over a year after he began representing her, filing an affirmative defense without elaboration or support regarding the Chicago property, not filing a response to the summary judgment motion and motion to approve the judicial sale of the Chicago property, not filing an answer, affirmative defenses, response to the summary judgment motion or response to the motion to approve the judicial sale of the Calumet Park property, in violation of Rule 4.4(a) of the Illinois Rules of Professional Conduct (2010); and
conduct involving dishonesty, fraud, deceit, or misrepresentation, by conduct including misrepresenting to Flowers the next court date regarding the Calumet Park property, and stating in his motion to set aside the judicial sale that he had filed Flowers' loan modification application in July 2012, when he did not file it until November 2012, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010).
WHEREFORE, the Administrator requests that this matter be referred to a panel of the Hearing Board of the Commission, that a hearing be conducted, and that the Hearing Panel make findings of fact, conclusions of fact and law, and a recommendation for such discipline as is warranted.
Roona N. Shah
Scott Renfroe
Counsel for the Administrator
One Prudential Plaza
130 East Randolph Drive, Suite 1500
Chicago, Illinois 60601
Telephone: (312) 565-2600
Respectfully submitted,
Jerome Larkin, Administrator
Attorney Registration and
Disciplinary Commission
By: Roona N. Shah
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