Suffolk judge fights foreclosure directive

A Suffolk judge has challenged the state's chief judges over a months-old directive aimed at protecting borrowers after lenders' scandals on foreclosure practices.

In a recent decision expediting a bank request to foreclose, State Supreme Court Justice Thomas Whelan in Riverhead said he was "not convinced" that Chief Administrative Judge Ann Pfau had the authority to require lenders' attorneys to file statements swearing they had taken reasonable steps to verify details in foreclosure cases. He was responding to the borrowers' attorney, who had argued that the case could not proceed without the statement, which was eventually filed.

Such directives are "void as impermissible invasions" of the legislature's powers, Whelan wrote. He said it had a "chilling" effect on his statutory authority to decide a case and "significantly" impaired banks' rights, giving borrowers "illusory" grounds for challenges.

The issues could get their day in court because borrowers James and Linda Pace of Hampton Bays filed an appeal March 30 on Whelan's decision for LaSalle Bank, which is now part of Bank of America, the trustee claiming a $1.3-million delinquency.

If appeals judges say the directive is unconstitutional, legal experts said, borrowers might lose homes through bad paperwork or at least lose a foreclosure stalling tactic.

Chief Judge Jonathan Lippman had issued the directive in October after employees of three major lenders said they signed thousands of foreclosure-related papers monthly without checking their accuracy.

Pfau's chief of staff said the chief judges have the power to require attorneys' statements.

"I'm sure the banks now, whenever they're being challenged for failure to file, will ask the court to adopt Whelan's decision," Paul Lewis said.

"But I don't expect there to be that many cases where there's a lack of compliance."

The Paces' attorney, Chris Thompson of West Islip, said the order asks attorneys only to do what they should be doing: checking paperwork.

"At the end of the day, it's very fair because they're also protecting the banks and the future purchasers of these homes from having these judgments reversed," he said.

Whelan and LaSalle attorney Justin Capuano declined to comment.

Whelan's points will create concerns among attorneys who didn't have any, said State Supreme Court Justice Dana Winslow in Mineola: "They really are not going to be sure about the status of whether the attorneys are going to have to certify."