Sometimes, the best defense is a good offense.
That seems to be the approach that notorious robo-signing firm Nationwide Title Clearing has taken in responding to some of its critics.
This, amongst other perceived sleights has upset Nationwide Title, who has sued a St. Petersburg foreclosure defense lawyer, Matthew Weidner, for alleged libel and slander.
This is likely to be a terrible, terrible idea.
For those of you who are not attorneys, I need to point out a few things out about Libel and Slander laws in the United States. These are Constitutional issues, as the First Amendment protects speech, opinion, arguments, viewpoints, etc. In these cases, (capital “T”) Truth is an absolute defense. So if any defendant can demonstrate that the damaging statements were indeed, accurate, they win.
This case turns on the bizarre claim that the term robo-signer so libels the plaintiffs that they are entitled to damages. Given that Truth is a defense, the defendant will prevail if they can demonstrate Nationwide’s approach was robotic. Not literally machines doing the work, but any showing of assembly line manufacturing, for profit, of a streamlined document production that failed to review the documents, evaluate them, analyze the contents should qualify.
Here’s where things get very very interesting: In civil litigation, the discovery process provides lots of opportunities for a defendant to gather information related to the accusations to prove they are true. This is a very broad standard, and it means nearly anything relevant is fair game. Depositions of senior executives, the firm’s accounting and records, balance sheets, low level employees are all legitimate aspects of pre-trial discovery.
Why any private firm would subject themselves to this degree of scrutiny is quite baffling to me.
And so the executives who run Nationwide just gave carte blanche to a very angry, well connected, deep-pocketed, web & media savvy attorney who wants their blood. Weidner’s blog is widely read amongst the foreclosure congescetti. Why they would choose to subject themselves to this is hard for rational beings to fathom. In the annals of litigation foolishness, on a scale of 1 to 10, I’d give this a 978.
My advice to Weidner is to immediately file a counter-suit for harassment and abuse of legal process before the morons who run Nationwide come to their senses and withdraw their nuisance suit. The counter-suit preserves the litigation claim, and allows the defendant to continue the action. (In some jurisdictions, it also allows the continued defense of the original claim, in anticipation of future actions. I do not know what the procedural Florida laws are).
Beyond that act of brazen stupidity, what makes this legal action so egregious is what else Nationwide has done: They asked for, and actually got, a Court order to gag another lawyer from posting depositions of their robo-signers employees online. The court ordered injunction, against Sarasota lawyer Christopher Forrest. First amendment be damned, the injunction ordered him to remove videotaped depositions of three Nationwide Title employees. The videos show the employees describing the assembly-line process of robo-signing mortgage and foreclosure-related documents.
The ACLU of Florida filed an emergency appeal of the injunction, which it called a “gag order” and a restraint of free speech.
Here is additional coverage from the St. Petersburg Times:
“The legal action marks another chapter in a storm over the validity of documents used to foreclose on millions of American homes. Earlier this fall, Bank of America and other lenders temporarily halted foreclosure proceedings because of evidence that many documents contained errors and fraudulent statements.
One of the most outspoken critics of the foreclosure process is Weidner, who writes a widely read blog in which he has criticized not only banks, but judges, lawyers and companies like Nationwide Title that process mortgage-related documents.
Nationwide Title does not prepare foreclosure papers. However, lenders have authorized several of its employees to sign for them on assignments of mortgage, which transfer ownership of a loan from one party to another and are key in determining who has the legal right to foreclose.
In a suit filed in Pinellas-Pasco Circuit Court, the company says Weidner has “deliberately and maliciously” used the term robo-signers “to vilify NTC for signing documents … when (Weidner) knew that it is entirely legally and appropriate to do so.”
Talk about an accurate and descriptive phrase: The term “robo-signers” perfectly sums up the mass produced, un-reviewed, assembly-line document production.
My only question is why criminal charges have not been brought against these employees and their supervisors for perpetrating a fraud on the courts. Even in Florida, Perjury is a felony, and if these documents were intended for use in court, its time for the local District Attorneys to start doing their jobs . . .
Nationwide Title goes on attack against vocal critics
Susan Taylor Martin
St. Petersburg Times, December 10, 2010
YouTube postings set off legal furor
Sarasota Herald Tribune, December 10, 2010
Matt Weidner Law Firm
The Forrest Law FIrm