Recently, Jacquelyn Trask, one of my associate attorneys, won a motion to dismiss with the court reserving determination of our right to receive attorneys’ fees on a case that highlights a growing problem, the filing of “robo-motions.”
The unusual facts of the case demonstrate how dangerous robo-motions are: potentially much more dangerous than the heights scaled by the robo-signing scandal.
She won the motion to dismiss because the bank’s attorney filed a motion to reschedule a foreclosure sale and have an ex parte order entered.
What are ex parte orders, you ask?
Simply put, ex parte orders are an unusual exception to a fundamental rule upon which our legal system is based: notice.
Usually, whenever one side in a case files a motion or requests an order from a judge, the other side has to be notified before the judge rules on the motion so that both sides can present their arguments.
That way, everyone gets a fair hearing.
Seems pretty obvious right?
The General Rules of Ethics even goes so far as to say ex parte motions should be avoided at all costs, and should only be used when giving notice to the other side will seriously harm your client. The foreclosure mill attorney turned the rule sideways.
Why?
Because the judge in the case had previously entered a court order forbidding the foreclosure sale from taking place.
The bank was able to reschedule the foreclosure sale because its attorney filed an ex parte motion with a different judge who knew nothing of the order. The attorney didn’t communicate with our firm, or as it turned out with the right judge as well, because it would harm the case, not because it would harm the client.
(more…)
