THE KUHN LAW FIRM, PLLC



MEMORANDUM

To: Gary Loflin, Chair

North Carolina Bar Association Real Property Section Consumer Protection Committee (“Committee”)

CC: Robert Allen, Chair, Real Property Section

RPS Section Council Officers

RPS Consumer Protection Committee Members

From: Benjamin R. Kuhn, Consumer Protection Counsel

Re: Summary of Recent Items of Interest and Update

Date: August 5, 2008

I. Update on Actions Taken by the State Bar AP Committee at its July 15, 2008 Meeting

The NC State Bar Authorized Practice Committee (“AP Committee”) met at the State Bar Quarterly Meeting on July 15, 2008 (a copy of the full AP Committee Agenda is attached hereto as Exhibit A). As demonstrated by the matters placed on the agenda there were only a couple of case investigations that were completed for decision which involved real estate related UPL issues. Instead, many of the matters on the agenda involved persons or companies running “debt elimination” schemes or other business related scams which harmed or threatened to harm North Carolina consumers. In one case, agenda item 9, the person complained of was alleged to be targeting the elderly. At least one of the “debt elimination” schemes did reveal a situation where fraud was being committed in connection with the consumer’s title to real property.

One of the anticipated agenda items (Agenda Item Number 3 involving a review/clarification of APAO 2002-1 re the role of lay-persons in residential real estate transactions) was tabled for further review and discussion, and it was represented that this matter would be back on the October AP Committee Agenda. Initially, the Committee went into executive session to discuss this agenda item. After coming out of executive session, however, it was reported that the committee would not be taking any action and instead would table the matter. My understanding from subsequent discussions with a couple of AP Committee members is that they wanted to ensure they were following the correct process in connection with any changes/clarifications to APAO 2002-1. Given the lack of real estate related UPL matters on the agenda, it is my personal observation that the AP Committee was potentially holding off on further decision on contested UPL matters involving real estate cases until further clarification and comment could be provided as to the meaning and prohibitions APAO 2002-1 regarding the role of lay persons in closing residential real estate transactions.

Item numbers 4, 5 and 16 on the AP Committee’s July agenda (see attached Exhibit A) were noteworthy for the conduct alleged in these matters and the forceful tone and action in the committee’s response. In agenda item 4 (08 AP 0013 – Sandy Clark), it is alleged that a non-attorney was posing as an attorney and attempting to sell “pre-paid legal plans” and then convincing consumers to pay her directly substantially more than the proposed pre-paid plan she was selling in exchange for a promise to immediately resolve a consumer’s legal problems. After discussion, the AP voted to refer the matter to the local district attorney for criminal prosecution, and alternatively, if the DA decided not prosecute, then the AP Committee recommended the State Bar seek an injunction to cease such harmful conduct.

Item number 5 on the attached AP Committee agenda (re Robert Jolly, 08AP0037) is noteworthy due to the alarming nature of the conduct which was brought to the committee’s attention. In that case, Jolly is alleged to be filing federal lawsuits pro se after he secured quit claim deeds from Borrower’s and then advised the Borrower’s to quit paying their mortgage payments. My recollection is that the lawsuits sought to cancel the lender’s interest in the property and other frivolous and bogus claims. Of course, Jolly charges a significant fee for his advice and counsel to the Borrower. The matter came to the attention of the State Bar after the Banking Commission had received several complaints. Jolly is alleged to be a convicted felon and runs other business ventures, including tanning salons. Again, the AP Committee voted to refer this matter to the local DA for criminal prosecution and for injunction.

Agenda item number 16 (07 AP 0103 – Chadra Law, dba Law’s Specialty Group) involves a Florida business preparing deeds for use in closing residential real estate transactions in NC. In this case, the evidence before the Committee prompted one member to comment that actual consumer harm was caused by the person’s actions and resulted in causing problems with the consumer’s title to real estate. After further discussion, the Committee voted to seek an injunction to stop the harmful actions of Chadra Law.

At the last meeting in April, the AP Committee voted to recommend to the State Bar to seek an injunction against Mid-Atlantic Title (08 AP 0001), which was found to be engaged in UPL by offering residential real estate closing services to lenders, including title search services and document preparation. As part of the litigation update at the July 15 AP Committee meeting, it was reported that staff counsel had completed drafting the injunction complaint against Mid-Atlantic Title and that it was expected to be filed shortly. Thus, it is apparent that the State Bar Executive Committee accepted the AP Committee’s recommendation to seek injunctive relief against Mid-Atlantic Title and authorized the filing of formal legal action in that case. Further update regarding the status of this litigation will be provided.

Other pending and open matters from the April 2008 AP Committee meeting which were continued to the July meeting (without any further action by the AP Committee at its July meeting) include:

06AP0026 & 07AP0047 – David Requa dba Landquest Title Corporation: Business advertising that it can provide real estate closing services, including title examination, the services of an attorney, and document preparation. David Johnson noted at the April 2008 AP Committee meeting that the attorney for Landquest had not responded yet to an informal request for documents sought by the State Bar. After considering a Cease and Desist Letter the AP Committee instead voted to authorize David Johnson to subpoena documents from Landquest and to continue its investigation.

06AP0064 – Professional Title & Settlement Services: Title insurance agent alleged to be holding herself out as able to conduct closings, order a title search for lenders, and arrange for the preparation of legal documents for the parties. At the request of the Respondent prior to the April 2008 meting, the matter was continued for hearing and decision at the July AP Committee meeting. This matter was not included on the July agenda for hearing or decision. I presume that this matter will be back on the AP Committee’s agenda in October.

II. New CPC Investigation Files Opened Since Last Quarterly Report in April 2008

1. Virtual Legal Assistant: Alleged UPL in real estate transactions. State Bar AP Committee investigation/action is pending.

2. South Mountain Group: Alleged UPL in real estate transactions. State Bar AP Committee investigation/action is pending.

3. TRES, Inc.: Alleged UPL in real estate transactions. State Bar AP Committee investigation/action is pending.

4. Settlement Source: Alleged UPL in real estate transactions (new investigation based on further information provided by fellow bar association member). State Bar AP Committee investigation/action is pending.

5. We The People: Alleged UPL in real estate transactions. (new investigation based on further information provided by fellow bar association member). State Bar AP Committee investigation/action is pending.

6. Appalachian Title: Alleged UPL in real estate transactions. State Bar AP Committee investigation/action is pending.

7. US Land Title: Alleged UPL in real estate transactions. State Bar AP Committee investigation/action is pending.

8. Triad Title Searching: Alleged UPL in real estate transactions. State Bar AP Committee investigation/action is pending.

9. Atlantis Title: Alleged UPL in real estate transactions. State Bar AP Committee investigation/action is pending.

10. Ethical Abstracts: Alleged UPL in real estate transactions. State Bar AP Committee investigation/action is pending.

11. State Street Group: Alleged UPL in real estate transactions. State Bar AP Committee investigation/action is pending.

12. Title Stream: Alleged UPL in real estate transactions. Documentation under review/investigation by Consumer Protection Counsel for potential referral to State Bar for possible enforcement action.

13. American Documents and Title: Alleged UPL in real estate transactions. Documentation under review/investigation by Consumer Protection Counsel for potential referral to State Bar for possible enforcement action.

14. Garner Settlement Shop: Alleged UPL in real estate transactions. Documentation under review/investigation by Consumer Protection Counsel for potential referral to State Bar for possible enforcement action.

III. Attorney Discipline By State Bar Arising From Real Estate Transactions Resulting in Harm to Consumers

Disbarments

Former Charlotte lawyer Thomas D. Brown surrendered his law license and was disbarred by the Wake County Superior Court. Brown acknowledged that he had misappropriated entrusted funds totaling at least $970,000.00. A copy of the Order of Disbarment can be accessed by clicking on the following web-link: .

Neil G. O'Rourke of Apex surrendered his law license and was disbarred by the Wake County Superior Court. O'Rourke pled guilty in the federal district court for the western district of North Carolina to one count of conspiracy to commit loan fraud, mail fraud, wire fraud, bank fraud, and securities fraud in connection with the infamous “Village of Penland” real estate development scam. A copy of the Order of Disbarment can be accessed by clicking on the following web-link: .

Anthony Young of Charlotte surrendered his law license to the Wake County Superior Court and was disbarred. Young pled guilty to criminal offenses arising from mortgage fraud. A copy of the Order of Disbarment can be accessed by clicking on the following web-link: .

Censures

Robert A. Forquer of Charlotte was censured. Forquer engaged in a conflict of interest by accepting payment for services from a third party payor without his client's consent, failed to communicate with his client, prepared a deed at the direction of a third party, thereby allowing a third party to direct his services, improperly split a legal fee with a non-lawyer, and assisted a third party's unauthorized practice of law. A copy of the Order of Disbarment can be accessed by clicking on the following web-link: .

Pending Disciplinary Actions by State Bar Against NC Attorneys Involving Alleged Real Estate Transactions and Resulting Consumer Harm

Amy Robinson, NC licensed attorney: Allegations in State Bar Disciplinary Complaint of mortgage fraud and violations of RESPA/HUD regulations in closing numerous real property transactions for clients (James Webb and Alpine Investments) while being on retainer for said clients and receiving rent-free office and equipment in return for providing legal services for the clients. See State Bar Complaint at . Hearing is scheduled on potential disciplinary action on August 21 and 22 before the State Bar Disciplinary Committee.

Rick Shumate, NC licensed attorney. Allegations in State Bar Disciplinary Complaint that Shumate represented in an interview with the U.S. Department of Justice that, in closing several real estate transactions involving Charles Richardson, Jr. and Phillip Wayne Middlebrooks, he did not realize the individuals had purchased multiple properties as primary residences when in truth and in fact he did realize that these individuals had purchased numerous properties as primary residences. Shumate was thereafter convicted of making a false statement to a federal official in violation of 18 U.S.C. 1001(a)(2). Over ten separate counts of misconduct are alleged in the Disciplinary Complaint against Shumate, all involving real estate transactions that Shumate closed on behalf of or involving Charles Richardson that involve illegal flipping and other HUD/RESPA violations. This matter is not yet scheduled for hearing. A copy of the stunning complaint (over 300 separately numbered allegations setting forth at least 12 separate counts involving numerous properties across North Carolina can be viewed by clicking on the following web-link: .

END OF CONSUMER PROTECTION COUNSEL REPORT; EXHIBIT A FOLLOWS.

EXHIBIT A

MEETING AGENDA

AUTHORIZED PRACTICE COMMITTEE MEETING

Anthony S. di Santi., Chair

The Carolina Hotel, Pinehurst, North Carolina

Cardinal Ballroom

July 15, 2008

3:00 pm

Ethics Act Statement

It is your duty to avoid conflicts of interest and appearances of conflicts of interest in performing your duties as a member of the Authorized Practice Committee and North Carolina State Bar. Is any member of the Committee aware of any personal conflicts or appearances thereof with respect to the matters before this Committee today?

I. Full Committee Discussion Agenda

A. Prepaid Legal Plans

1. 08PP01 – Initial Registration of Medical Justice Plan

2. 02PP06 – Amendments to Pre-Paid Legal Services, Inc.

B. Investigation Complete – For Decision

3. Review of Advisory Opinion 2002-1

4. 08AP0013 – Sandy Clark: Non-attorney poses as attorney and uses the premise of selling pre paid legal plans to convince people to pay her substantially more than the premium for the prepaid plan to resolve immediate legal problems.

5. 08AP0037 – Robert Jolly: Individual running a debt elimination scheme is filing federal lawsuits on behalf of himself and the debtor after taking title to the debtor's property.

II. Consent Agenda

A. Letters of Caution

6. 08AP0044 – Form-A-Corp: Business offers to prepare and file articles of incorporation for others over the internet.

7. 07AP0075 – Larry Clark: CPA assisted in the preparation of articles of organization for business client.

8. 08AP0040 – James Davis dba The Review Case Research, LLC: “Paralegal” business in Alabama is soliciting business from North Carolina prisoners to provide “case” research services that are compared to services provided by lawyers.

9. 08AP0034 – Morgan Drexen: California based company is soliciting business in North Carolina for "debt settlement" on behalf of debtors by representing that it will provide the debtor with legal representation by a California law firm.

10. 08AP0035 – Vincent D. Howard: California attorney who permits a business entity that offers "debt relief" services to consumers to hold him out as the attorney for the debtor if they subscribe to the services of the business.

11. 08AP0036 – Damian J. Nassiri: California attorney who permits a business entity that offers "debt relief" services to consumers to hold him out as the attorney for the debtor if they subscribe to the services of the business.

12. 08AP0027 – Sherrie King dba King & Associates: Accountant maintains a website on which she offers to prepare articles of incorporation for non-profit organizations and advice on legal exposure for business owners.

13. 07AP0109 – Steve Dietz dba Church By-Laws: Minister offers to prepare articles of incorporation, applications for 501(c)(3) status, and bylaws that are based on biblical concepts for use by churches.

14. 08AP0032 – Ryan Graf: Individual advertises on Craigslist that he is able to prepare divorce "papers" for others for a fee.

15. 08AP0019 – Carolyn Cooke: California attorney residing in North Carolina attempts to provide legal services to a corporation as an independent contractor.

16. 07AP0103 – Chadra Law dba Law’s Speciality Group: Florida business prepares deeds for use in closing residential real estate transactions in North Carolina and shows a North Carolina attorney as the deed preparer without permission.

17. 07AP0122 – Robert Clarkson: Disbarred South Carolina attorney attempts to "intervene" pro se in his wife's domestic case with her former husband to represent the interests of his wife.

18. 08AP0010 – Robert Burris: Respondent sends a letter from his "law office" to the Virginia Attorney General on behalf of a prisoner who he calls his "client" threatening to take legal action on behalf of the prisoner.

19. 08AP0015 – S.D. "Scot" Scruta dba "Tyler & Scruta": Individual residing in Texas who is neither an attorney nor a collection agent sends a "pre-lien notice" to a couple in Charlotte in an effort to collect a purported debt of an equipment provider from a contractor engaged by the couple.

20. 08AP0033 – Rva Pendleton dba Carolina Judgment Recovery Services: Nonlawyer offers to collect judgments for judgment creditors for a contingency fee under a purported assignment of the judgment.

21. 08AP0003 – Jeffrey Segal dba Medical Justice Corp.: Company offers to provide doctors with a system to prevent frivilous malpractice claims and assist them with retaliatory lawsuits against patients and others who make such claims.

22. 08AP0002 – David McAndrews: New York attorney is attempting to collect North Carolina statutory penalties from alleged shoplifters in North Carolina for a North Carolina store.

B. Dismissal

23. 08AP0024 – Gerald Silver: California lawyer appears to have ghost-written pleadings for a California pro se defendant in a North Carolina business court proceeding.

24. 07AP0086 – William Ruickholdt: Respondent is alleged to have posed as an attorney and offered to file a small claims action on behalf of a member of the public.

25. 06AP0041 – Kahn & Associates: Out of state professional limited liability company that employs a North Carolina attorney fails to comply with the requirements for an interstate law firm.

26. 08AP0049 – Regina Bartholomew: In-house general counsel for a school system is not licensed in North Carolina, but is licensed in another state.

27. 07AP0114 – John Kledis: CPA is alleged to have offered to form a corporation for another.

C. No Action

28. 08AP0022 – Kenneth Martin: Respondent purports to have a power of attorney for another and tenders a note payable in 50 years to the county tax collector on behalf of the taxpayer along with a packet of documents purporting to challenge the legality of the debt for taxes.

29. 08AP0045 – Eric Lynch: Colorado resident files three frivilous complaints on behalf of a purported North Carolina resident who cannot be located.

D. Litigation Updates

30. American Family Prepaid Legal Services

31. Mid-Atlantic

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Benjamin R. Ku؀ࠁࠂࠃࠅࠆࠇࠒࠔࠕࠚࠛࠦ࠯탢ꪽ覛摷㹎␱1ᘘ捨㔀脈䩏䩑࡜庁ъᘘ㭨㡪㔀脈䩏䩑࡜庁ъᔞ끨ችᘀ㭨㡪㔀脈䩏䩑࡜庁ъᔫ፨︃ᘀ㭨㡪㔀脈࠸㦁脈࠺㺁̪䩃䩏䩑䩡ᘥ㭨㡪㔀脈࠸㦁脈࠺㺁̪䩃䩏䩑䩡ᔢ㭨㡪ᘀ㭨㡪㔀脈⨾䌁᱊伀͊儀͊愀᱊ᔢ㭨㡪ᘀ၌㔀脈⨾䌃᱊伀͊儀͊愀᱊ᘜͨ㔀脈⨾䌃᱊伀͊儀͊愀᱊ᘥͨ㔀脈࠸㦁脈࠺㺁̪䩃䩏䩑䩡ᘥ፨︃㔀脈࠸㦁脈࠺㺁̪䩃䩏䩑䩡̢jᘀͨ伀͊儀͊唀Ĉ䡭Ѐ䡮Ѐࡵ[pic]̹jᘀͨ㔀脈࠸hn, Esq.

bkuhn@

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