The pointed questions foreclosure attorneys have faced in Baltimore City Circuit Court Judge W. Michel Pierson's courtroom this year basically boil down to these two:
1) Is that, in fact, your signature that appears above your name on this document to foreclose on someone's house?
2) Oh? Why not?
I had a chance to sit in on one of the hearings, and it was illuminating to hear explanations of how attorneys at one law firm representing mortgage servicers juggled their workload.
One of the lawyers representing Virginia-based Shapiro & Burson at the hearing last week told Pierson that seven of the 16 case files up for discussion had documentation with "delegated signatures" -- one attorney signing the name of another.
The attorneys -- Jason Murphy and Erik Yoder -- each gave the other blanket authority to sign the other's name when documents needed their signature but they were out of the office dealing with other foreclosure matters, Murphy testified.
"How many times do you think you authorized Mr. Yoder to sign your name to an affidavit?" Pierson asked.
"I would suspect there would be a good number," Murphy said. "Only on those occasions I wasn't in."
How many were then notarized, the judge asked? (He had just seen an example.)
"Little to zero," Murphy said.
"Well," the judge said, "we know there's one."
Pierson wanted to know when the attorneys started signing for each other.
"I can't give you a precise date, but I'd say probably June 2008," Murphy said, adding: "As long as Mr. Yoder did a thorough review, ... I would give Mr. Yoder authority to sign."
"These were files you had not reviewed, is that correct?" Pierson asked.
"We had a significant amount of work to do," Murphy said, though he added that he would see the documents later as the case progressed.
Murphy said it probably would have been better had Yoder initialed next to the "delegated signature" to indicate that it wasn't actually Murphy himself who had made it. "But I don't think it takes away from the fact that these documents had an attorney review," he said, differentiating the practice from paralegals signing for lawyers.
Then Pierson asked the question that's probably occurred to all of you: "Why didn't he sign his own name?"
"Well, the names were pre-printed," Murphy said.
He volunteered later that the delegation has been discontinued. "In this climate," he acknowledged, it "has raised some eyebrows."
Notarization problems are one piece of the "robo-signing" scandal rocking law firms and mortgage servicers across the country. Elizabeth Ritter, a special master for the court who has been reviewing foreclosure files for irregularities, put notarized documents in front of Murphy that he identified as actually signing himself and asked if he did so in front of the notary.
"We're in the same office," he said. "I signed those documents and delivered them to her personally."
Ritter then asked if that was his practice.
"Well, sometimes I'll sign right in front of her," he said.
Later he noted that since October (which happens to be when the courts approved an emergency rule to clearly authorize the sorts of hearings Pierson is conducting), he and others "took the extra effort" to make sure documents were signed while notaries watched.
So what's eyebrow-raising but ultimately OK, and what isn't? Time will tell. When it proposed that emergency rule, the Maryland Court of Appeals' rules committee seemed appalled at the idea that attorneys weren't reading and signing affidavits bearing their names.
"In the Committee’s view, the use of bogus affidavits to support actions to foreclose liens on property, apart from prejudice to the homeowners, constitutes an assault on the integrity of the judicial process itself," the committee wrote, responding in part to revelations that two attorneys -- one at a Baltimore County firm and another at a Montgomery County firm -- had "delegated" their signing duties.
After a former paralegal at Shapiro & Burson contended that one attorney was signing another's name on hundreds of deeds for foreclosed Maryland homes and having them falsely notarized, the Prince George's County state's attorney's office immediately began investigating. (A spokesman there said the office has since turned the case over to the Maryland Attorney General.)
The state's highest court, meanwhile, disbarred an attorney last month for allowing the daughter of a dying woman to forge her mother's signature on estate-planning documents that would save the family $10,000 in probate fees, after which he notarized them as if they were genuine. The disbarment came despite the fact that the attorney had talked to both women earlier about the money-saving action and had reason to believe he was following the mother's wishes at a time when she was no longer able to carry them out herself.
"Attorneys ... are not and cannot be hired guns for individuals who seek to subvert the administration of justice," Judge Lynne A. Battaglia wrote in the majority opinion. "Rather, the great strength of our profession lies in the integrity with which we act and the honor that we bring to our work. Attorneys are not permitted to discard their ethical obligations when it becomes difficult or stressful to maintain them."
But in the Shapiro & Burson situation, a variety of Circuit Court judges have apparently accepted the delegated signing practices.
"When we've provided testimony such as this, they indeed took the position that it didn't legally impair the documents," Murphy said.