Justia Legal Ethics Opinion Summaries

Fred Basile, a property manager, had no standing to bring a summary process action in the name of his sole proprietorship seeking to evict a tenant from a property for which Basile was neither the owner nor the lessor. To the extent that Basile was acting on behalf of the property’s true owner when he filed the complaint, his conduct constituted the unauthorized practice of law because Basile was not an attorney.The Supreme Judicial Court further held (1) where the plaintiff in a summary process action is not the property’s owner or lessor, the complaint must be dismissed with prejudice for lack of subject matter jurisdiction; (2) where the plaintiff is the true owner or lessor but the complaint has been signed and filed by another non-attorney person, the court may either dismiss the complaint without prejudice based on the unauthorized practice of law or allow the plaintiff to retain counsel or proceed pro se; and (3) where a plaintiff seeks to evict a tenant without the standing to do so, or where a person who is not authorized to practice law signs and files a summary process complaint, and where that conduct is not inadvertent, a court has the inherent authority to impose appropriate sanctions. View "Rental Property Management Services v. Hatcher" on Justia Law

Plaintiffs and appellants Antonio and Imelda Aranda and their son-in-law, Heriberto Ponce, (together, Ponce and Aranda) appeal from the trial court’s entry of a judgment of dismissal following an order imposing both terminating and monetary sanctions against them and their attorneys under Code of Civil Procedure section 128.7. 1 The trial court found that Ponce and Aranda’s complaint was presented primarily for an improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation. Ponce and Aranda received a permanent loan modification under the Home Affordable Modification Program (HAMP). Ultimately they defaulted on the loan when the error-filled modification agreement called for higher payments they could not afford. Wells Fargo transferred the note and deed of trust to Consumer Solutions 3, LLC in November 2010. Defendant and respondent Specialized Loan Services, LLC (Specialized) serviced the loan on behalf of Consumer Solutions. In the meantime, Ponce and Aranda were still trying to work things out with Wells Fargo. One Wells Fargo representative told Ponce’s wife, Alma, that they should not make further payments until the mistakes were corrected. Other representatives called Ponce demanding payment. Wells Fargo refused to accept any reduced payment, and ultimately invited Ponce and Aranda to apply for another loan modification. Specialized recorded a notice of trustee’s sale in December 2010, while Ponce and Aranda’s second application was pending. A Wells Fargo representative told Ponce “not to worry about the notice because the trustee sale was scheduled by mistake.” Over the next several weeks, other Wells Fargo representatives reassured Ponce and Aranda that the property would not be sold because they had been approved for a loan modification. Despite these assurances, a trustee’s sale was held on January 18, 2011, at which Residential Investments LLC acquired title to the property. Residential Investments filed a complaint in unlawful detainer against plaintiffs. The trial court found that Ponce and Aranda’s complaint responding to Residential Investments’ was presented primarily for an improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation. On appeal, Ponce and Aranda argued the claims asserted in their complaint were not frivolous and therefore, could not have been asserted for an improper purpose. The Court of Appeal agreed, and reversed the trial court’s entry of judgment based on terminating sanctions against Ponce and Aranda and entry of monetary sanctions against Ponce and Aranda and their attorneys. View "Ponce v. Wells Fargo Bank" on Justia Law

Plaintiffs and appellants Antonio and Imelda Aranda and their son-in-law, Heriberto Ponce, (together, Ponce and Aranda) appeal from the trial court’s entry of a judgment of dismissal following an order imposing both terminating and monetary sanctions against them and their attorneys under Code of Civil Procedure section 128.7. 1 The trial court found that Ponce and Aranda’s complaint was presented primarily for an improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation. Ponce and Aranda received a permanent loan modification under the Home Affordable Modification Program (HAMP). Ultimately they defaulted on the loan when the error-filled modification agreement called for higher payments they could not afford. Wells Fargo transferred the note and deed of trust to Consumer Solutions 3, LLC in November 2010. Defendant and respondent Specialized Loan Services, LLC (Specialized) serviced the loan on behalf of Consumer Solutions. In the meantime, Ponce and Aranda were still trying to work things out with Wells Fargo. One Wells Fargo representative told Ponce’s wife, Alma, that they should not make further payments until the mistakes were corrected. Other representatives called Ponce demanding payment. Wells Fargo refused to accept any reduced payment, and ultimately invited Ponce and Aranda to apply for another loan modification. Specialized recorded a notice of trustee’s sale in December 2010, while Ponce and Aranda’s second application was pending. A Wells Fargo representative told Ponce “not to worry about the notice because the trustee sale was scheduled by mistake.” Over the next several weeks, other Wells Fargo representatives reassured Ponce and Aranda that the property would not be sold because they had been approved for a loan modification. Despite these assurances, a trustee’s sale was held on January 18, 2011, at which Residential Investments LLC acquired title to the property. Residential Investments filed a complaint in unlawful detainer against plaintiffs. The trial court found that Ponce and Aranda’s complaint responding to Residential Investments’ was presented primarily for an improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation. On appeal, Ponce and Aranda argued the claims asserted in their complaint were not frivolous and therefore, could not have been asserted for an improper purpose. The Court of Appeal agreed, and reversed the trial court’s entry of judgment based on terminating sanctions against Ponce and Aranda and entry of monetary sanctions against Ponce and Aranda and their attorneys. View "Ponce v. Wells Fargo Bank" on Justia Law

The Dezzanis own a condominium and are members of the Homeowners' Association (HOA). Kern, an attorney, represents the HOA and advises its governing board. In a dispute regarding an extended deck on the Dezzani unit, the board issued a notice of violation with drafting assistance from Kern. Kern notified the Dezzanis that she represented the HOA. Kern and the Dezzanis exchanged several letters. The board held a hearing and upheld the notice. Throughout this time, Kern advised the HOA regarding the Dezzanis' and other members' deck extensions. The Dezzanis filed suit against Kern under NRS 116.31183, which allows a unit owner to bring a separate action for damages, attorney fees, and costs when an “executive board, a member of an executive board, a community manager or an officer, employee or agent of an association" takes retaliatory action against a unit's owner. The Nevada Supreme Court affirmed the dismissal of their action, noting that the Dezzanis did not specify how Kern retaliated against them. An attorney is not an "agent" under NRS 116.31183 for claims of retaliatory action where the attorney is providing legal services for a common-interest community homeowners' association. In a consolidated case, the court held that attorneys litigating pro se and/or on behalf of their law firms cannot recover fees because those fees were not actually incurred by the attorney or the law firm, but they can recover taxable costs in the action. View "Dezzani v. Kern & Associates, Ltd." on Justia Law

The Dezzanis own a condominium and are members of the Homeowners' Association (HOA). Kern, an attorney, represents the HOA and advises its governing board. In a dispute regarding an extended deck on the Dezzani unit, the board issued a notice of violation with drafting assistance from Kern. Kern notified the Dezzanis that she represented the HOA. Kern and the Dezzanis exchanged several letters. The board held a hearing and upheld the notice. Throughout this time, Kern advised the HOA regarding the Dezzanis' and other members' deck extensions. The Dezzanis filed suit against Kern under NRS 116.31183, which allows a unit owner to bring a separate action for damages, attorney fees, and costs when an “executive board, a member of an executive board, a community manager or an officer, employee or agent of an association" takes retaliatory action against a unit's owner. The Nevada Supreme Court affirmed the dismissal of their action, noting that the Dezzanis did not specify how Kern retaliated against them. An attorney is not an "agent" under NRS 116.31183 for claims of retaliatory action where the attorney is providing legal services for a common-interest community homeowners' association. In a consolidated case, the court held that attorneys litigating pro se and/or on behalf of their law firms cannot recover fees because those fees were not actually incurred by the attorney or the law firm, but they can recover taxable costs in the action. View "Dezzani v. Kern & Associates, Ltd." on Justia Law

The 260-unit San Francisco condominium property is subject to the Davis-Stirling Common Interests Development Act, Civ. Code, 4000. Artus, a J.D., Ph.D., owns three condominiums. The homeowner’s association (HOA) is governed by a board, previously elected by cumulative voting: a member would receive a number of votes equal to the total number of directors to be elected and could cast all her ballots for one candidate. Artus was elected to the board three times. The HOA voted by a substantial majority to eliminate cumulative voting. Artus sued, citing the Act, and obtained preliminary injunctive relief, preventing a board election under the new, direct vote rule. In the meantime, the HOA held another election and again approved direct voting by a substantial margin. Finding that the second election addressed “whatever valid objections [Artus] may have had” and the HOA had made good faith efforts to comply with the law, the court denied relief after trial. The court of appeal affirmed, rejecting Artus’ claim for statutory fees and costs. Neither the Davis-Stirling Act nor the legislative history of the fee provision at issue evidences any intent to depart from well-established principles that fees and costs are ordinarily not granted for interim success. View "Artus v. Gramercy Towers Condominium Association" on Justia Law

The question this case presented for the Oregon Supreme Court’s review centered on fees, and whether the legislature intended to depart from the accepted practice of awarding a party entitled to recover attorney fees incurred in litigating the merits of a fee-generating claim additional fees incurred in determining the amount of the resulting fee award in condemnation actions. The trial court ruled that there was no departure, and awarded the property owner in this case the fees that she had incurred both in litigating the merits of the underlying condemnation action and in determining the amount of the fee award. The Court of Appeals affirmed. Finding no reversible error in the Court of Appeals’ decision, the Oregon Supreme Court affirmed. View "TriMet v. Aizawa" on Justia Law

Plaintiffs filed a complaint against Attorney alleging that Attorney failed properly to advertise and conduct non-judicial foreclosure sales of their properties in violation of duties under Plaintiffs’ mortgages, statutory law, common law, and the consumer protection statute. The circuit court dismissed the complaint for failure to state a claim. The Supreme Court affirmed, holding that dismissal was appropriate where (1) the statutory requirements of former Haw. Rev. Stat. 667-5 and 776-7 do not give rise to a private right of action against a foreclosing mortgagee’s attorney; and (2) an unfair or deceptive acts or practices acts or practices claim against Attorney as the foreclosing mortgagee’s attorney was not recognized. View "Sigwart v. Office of David B. Rosen" on Justia Law

In a construction-defect matter filed by a homeowners’ association (HOA) against several developers, an attorney for the HOA previously represented one of the developers. The developers moved to disqualify that attorney under Rules 1.9 and 1.10 of the Colorado Rules of Professional Conduct. The trial court denied the motion, without what the Colorado Supreme Court described as “meaningfully analyzing for purposes” of Rule 1.9 whether this case was “substantially related” to the prior matters in which the attorney represented the developer. Instead, the Court found the trial court relied on issue preclusion, and found that in this situation, the attorney was not disqualified to represent the developer. The Supreme Court concluded the trial court erred by not analyzing the facts of this case under Rule 1.9, and therefore vacated the denial of the developers’ motion, and remanded for further proceedings. View "In re Villas at Highland Park Homeowners Assoc. v. Villas at Highland Park, LLC" on Justia Law

In 1983, the New Jersey Supreme Court affirmed a final consent judgment for a settlement agreement between the New Jersey State Bar Association and the New Jersey Association of Realtor Boards. The terms of the settlement provided that real estate brokers and salespersons may prepare contracts to sell or lease real property, so long as a standard form is used that includes a three-day period for attorney review. Plaintiffs Michael Conley, Jr., and Katie M. Maurer (Buyers) made an offer to purchase a condominium from defendant Mona Guerrero (Seller), and, a few days later, Seller signed and executed the contract. Before the three-day attorney-review period expired, Seller s attorney sent Buyers attorney and their realtor notice of disapproval by e-mail and fax, rather than by the methods approved under the 1983 holding and prescribed in the parties' contract (certified mail, telegram, or personal service). Buyers sued for specific performance, claiming the contract was enforceable because Seller s notification of disapproval was sent improperly. At issue before the Supreme Court was whether the attorney-review provision of a standard form real estate contract had to be strictly enforced, thereby nullifying Seller's notice of disapproval and requiring enforcement of the real estate contract. The Court concluded that, because Buyers received actual notice of disapproval within the three-day attorney-review period by a method of communication commonly used in the industry, the notice of disapproval was valid. The Court also exercised its constitutional authority over the practice of law and found that an attorney's notice of disapproval of a real estate contract could be transmitted by fax, e-mail, personal delivery, or overnight mail with proof of delivery. Notice by overnight mail will be effective upon mailing. The attorney-review period within which this notice must be sent remained three business days. View "Conley v. Guerrero" on Justia Law