In foreclosure? If the bank can't find you, the bank may choose your lawyer.

While he was deployed overseas,

a court-appointed attorney represented

him in a foreclosure lawsuit he

says he knew nothing about.

The Tampa Tribune
By Shannon Behken
April 26, 2011

TAMPA - When a lender fails to find a homeowner to notify them of a foreclosure lawsuit, a judge often appoints a guardian ad litem. That attorney is supposed to represent the property owner's interests.

But guess who typically picks the guardian? The lender's attorney.

Foreclosure is the only court proceeding in Florida where the plaintiff routinely chooses the attorney ad litem to represent the defendant, according to court records and interviews. Foreclosure firms typically recommend a small pool of lawyers, and the foreclosing lender pays the defendant's attorney bill.

"It's kind of the way it's always been done," said Thomas McGrady, Chief Judge 6th Judicial Circuit. Law experts say it's an out-dated system that has become problematic.

Now that courts are flooded with foreclosures, there is more opportunity for conflict of interest and overburdened lawyers, said Henry P. Trawick Jr., a Sarasota lawyer and author of Florida's Practice and Procedure, a textbook used by lawyers.

"The ad litem is supposed to defend the person he's appointed to represent," Trawick said. "He's supposed to work as hard as he would if that person was paying for his services, not the bank."

Ad litems are appointed in foreclosure suits when the foreclosing lender says it can't locate the homeowner to serve the lawsuit. Typical examples of this are cases of deployed service members or when the homeowner has died.

The ad litem procedure came to light recently after the Tribune reported about United States Coast Guardsman Keith Johnson. While he was deployed overseas, a court-appointed attorney represented him in a foreclosure lawsuit he says he knew nothing about.

That guardian ad litem failed to notify him of the suit, waived his rights to fight the case and allowed the foreclosure to move forward. Johnson returned to find out all of this the day before his Clearwater house was to be auctioned.

When it came time to appoint the ad litem for Johnson, the lender's attorney suggested the same Tampa lawyer the bank often uses in such cases, and the judge agreed.

Law experts say Johnson's case is concerning on many levels, particularly because the federal Servicemembers Civil Relief Act is intended to protect military members from losing their homes while deployed.

In Johnson's case, Tampa attorney Jay D. Passer looked for Johnson for three months, according to court records, then told the court the plaintiff's pleadings "appear to be in compliance" with state law. That report was key to allowing the foreclosure to proceed.

Passer told the Tribune he verified that Johnson was in the Coast Guard but assumed he was living locally. He said he mailed paperwork to the Coast Guard and asked that it be forwarded to Johnson. He said he never heard back.

"If I had heard anything about him being (overseas), I would have asked the judge for a stay," Passer said.

Col. John S. Odom, Jr., a nationally-recognized military lawyer wrote A Judge's Guide to the Servicemembers Civil Relief Act, which is expected to be released later this year by the American Bar Association.

There's nothing in the relief act, he said, that would prohibit the lender's attorneys from recommending the guardian ad litem.

"But you have to wonder how much business the ad litem attorney would get if they clogged up the case and caused it to not go forward until the service member returns," Odom said. "And that's what the ad litem is supposed to do."

Michael Olenick, of LegalPrise, which does legal research for lawyers, searched court records across the state and said he found 10 high-volume ad litem attorneys in foreclosure cases.

"Many lawyers do these cases from time to time, but some do quite a bit of work for the same firms," he said. Those lawyers, Olenick said, carry a load of more than 100 cases at a time. And just as large foreclosure firms handle cases around the state, so do ad litem attorneys, Olenick said.

"Foreclosure defense is litigation, and you may actually have to get in the courtroom," Olenick said. "Why would Palm Beach County appoint a Hillsborough attorney as guardian ad litem?" Trawick, the author of the law reference book, said that doesn't make sense. "Judges should appoint someone they know and trust," he said. "I think they're going to have to start having a list of the persons they know who will do that sort of thing."

McGrady said he doesn't think the court system has a pervasive problem with ad litem procedures but said Johnson's case prompted him to take a closer look. "It's up to each judge to decide what works best for him," McGrady said. "We will address it with our foreclosure judges."