Cuyahoga County Requires Attorney Affidavits

Cuyahoga County Requires Attorney Affidavits
by Dean Kanellis

I am writing to let you know that, as a consequence of the robo-signing allegations that have recently come to light, the Common Pleas Court for Cuyahoga County, Ohio is in the final stages of formulating new rules that will apply to all mortgage foreclosure cases.

More precisely, we expect that within the next several days, this court will require lenders’ counsel to validate the truth and accuracy of the testimony and other evidence offered by lenders in mortgage foreclosure cases. This will be accomplished by having lenders’ counsel sign and file one or more affidavits, draft forms of which are attached to this message. Please note that the affidavits are still being drafted, and they are not yet in final form.

These affidavits, and the requirement that they be signed by counsel of record, raise a number of troubling issues. Among other concerns, the proposed process opens the door for borrowers to depose the lender’s attorney; it gives the appearance that lenders’ counsel is required to disclose privileged and other confidential communications; and it otherwise opens the door to a host of unknown and unforeseen consequences.

The court’s rule making process is ongoing, and it is still too early to form any formal opinion or recommendation. We will continue to keep you informed of all material developments, and as soon as events warrant, we will provide you with our opinion and recommendations.

If you have any questions, feel free to contact our office.