Disciplinary Counsel v. Foreclosure Alternatives, Inc. , 127 Ohio St. 3d 455 ( 2010 )

[Cite as Disciplinary Counsel v. Foreclosure Alternatives, Inc., 127 Ohio St.3d 455, 2010-Ohio-
6257.]
DISCIPLINARY COUNSEL v. FORECLOSURE ALTERNATIVES, INC., ET AL.
[Cite as Disciplinary Counsel v. Foreclosure Alternatives, Inc.,
127 Ohio St.3d 455, 2010-Ohio-6257.]
Unauthorized practice of law — Managing the defense of clients in foreclosure
actions and negotiating with the lenders on behalf of the clients —
Injunctions issued and civil penalties imposed.
(No. 2010-1495 — Submitted October 13, 2010 — Decided December 23, 2010.)
ON FINAL REPORT by the Board on the Unauthorized Practice of Law of the
Supreme Court, No. UPL 09-05.
__________________
Per Curiam.
{¶ 1} On June 4, 2009, relator, Disciplinary Counsel, filed a three-count
complaint with the Board on the Unauthorized Practice of Law against
respondents, Foreclosure Alternatives, Inc. (“FAI”), Kert Alexakis, and Lance
Baker, a.k.a. Lance Trester (“Trester” or “Lance”), alleging that respondents
engaged in the unauthorized practice of law by soliciting homeowners who were
defendants in foreclosure proceedings and offering to manage the defense of the
foreclosure actions while negotiating with the lenders. FAI was the business
entity engaged in the practices at issue, and Alexakis and Trester were agents and
employees of FAI who were involved in those practices.
{¶ 2} Two counts of the complaint detail particular instances in which
respondent FAI entered into contracts with foreclosure defendants, engaged
attorneys for the limited purpose of filing pleadings, and ostensibly acted to
resolve the mortgage disputes. In both instances, the homeowners lost their
homes, which were sold in foreclosure sales.
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{¶ 3} The complaint charged, and the board concluded, that respondents
had engaged in the unauthorized practice of law by counseling clients on the
course of legal action in connection with foreclosure and by undertaking to
negotiate on their behalf in the context of foreclosure actions. We adopt the
board’s finding that respondents engaged in the unauthorized practice of law, and
we enjoin them from doing so in the future.
{¶ 4} In addition, the board, taking cognizance of the hardship suffered
by the clients of FAI, recommends the imposition of civil penalties against Trester
in the amount of $2,500 per count, for a total of $5,000, and against FAI and
Alexakis jointly and severally in the amount of $7,500 per count, for a total of
$15,000. We accept the board’s recommendation and adopt the sanctions.
Factual Background
The nature of FAI’s business
{¶ 5} FAI, which was incorporated on or about April 19, 2004, by
Ronald Trester, is an Ohio corporation located in Hamilton County. Alexakis,
who is Ronald Trester’s stepson, stated that his mother was the sole shareholder
and that Ronald Trester and Alexakis himself were the officers. The company
apparently ceased operation late in 2007, but it has not been dissolved, because a
lawsuit is still pending against it.
{¶ 6} FAI would locate customers by consulting online databases that
showed persons who were named defendants in mortgage-foreclosure actions.
Through a mailing, FAI would solicit those persons to enter into contracts with
FAI under which FAI agreed to file appropriate pleadings in the foreclosure
action and negotiate with the lenders in order to achieve a resolution that would
avoid both the loss of the home and the filing of bankruptcy.
{¶ 7} Clients of FAI were required to pay $850 up front or $900 in two
installments, after which they were to provide financial information to FAI and
set up a separate account into which they were to make regular deposits until the
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account reached a specified amount (in one case, the amount was equal to four
months of mortgage payments). The financial information (including a “hardship
letter”) and the separate account were used by FAI to negotiate a resolution of the
dispute with the lender. In the course of representing its clients, FAI would
engage one of three attorneys — two licensed in Ohio1 and one in Indiana — to
whom they would assign the responsibility of handling court filings and hearings.
The attorneys were typically paid between $125 and $250 for that service, an
amount usually paid directly by FAI out of the fee it collected from the client.
Once FAI had financial information and documentation that the client had
deposited a significant sum in the separate account, FAI would make a proposal to
the lender to pay a percentage of the loan delinquency in order to stop the
foreclosure and reinstate a monthly payment arrangement.
{¶ 8} None of the shareholders, directors, officers, or employees of FAI
was licensed to practice law in any jurisdiction.
The nature of Trester’s involvement
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{¶ 9} Trester is not licensed to practice law in Ohio.
{¶ 10} When Ronald Trester was to be incarcerated for a felony
conviction and could no longer run FAI, he first turned to his son Lance to run the
company. Lance underwent 15 days of intense training and then began to manage
the operation. During his tenure, Lance supervised and directed the employees
and operations, including solicitation of business from homeowners, retention of
attorneys to represent the customers, and attempts to work with customers and
lenders to resolve the past-due amounts or otherwise reinstate the loans.
1. Both Ohio attorneys have been disciplined in connection with their involvement with FAI. See
Disciplinary Counsel v. Willard, 123 Ohio St.3d 15, 2009-Ohio-3629, 913 N.E.2d 960; Geauga
Cty. Bar Assn. v. Patterson, 124 Ohio St.3d 93, 2009-Ohio-6166, 919 N.E.2d 206, ¶ 8–32.
2. On advice of his father, Ronald Trester, Lance Trester adopted the name “Baker” during his
tenure at FAI to avoid being associated with his father’s felony conviction.
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{¶ 11} One week after Trester left the employ of FAI on September 22,
2006, he started a company named American Foreclosure Professionals, which
competed with FAI. American Foreclosure Professionals was in business until
approximately November 2008.
The nature of Alexakis’s involvement
{¶ 12} Kert Alexakis is not licensed as an attorney in Ohio.
{¶ 13} Before 2006, Alexakis was only minimally involved in FAI, which
had been run by his stepfather, Ronald Trester. According to Lance Trester,
Alexakis was president of FAI but inactive in the company business at the
beginning of 2006. When Ronald Trester was convicted and incarcerated in
February 2006, he became unable to run the company and tapped his son Lance to
operate the business. On September 22, 2006, Lance left the employ of FAI.
{¶ 14} According to Lance Trester, Alexakis ran the company after Lance
left. Alexakis met with clients, assembled financial information into client
packets, and presented the information to the lenders in order to avoid foreclosure.
Alexakis also supervised the activities of the attorneys with respect to court
filings. About 20 percent of the time, the attempt to reinstate the loan failed, and
the property was sold at a sheriff’s sale. When the company ceased operations in
December 2007, Alexakis was no longer active in the business.
FAI’s handling of foreclosure No. 1
{¶ 15} FAI’s dealings with the homeowners in Foreclosure No. 1 led to
the homeowners’ filing a grievance against the attorney used by FAI, John
Willard. See Disciplinary Counsel v. Willard, 123 Ohio St.3d 15, 2009-Ohio-
3629, 913 N.E.2d 960, ¶ 9 (the “foreclosure on the home of David and Annette
Chandler led to this professional grievance”).
{¶ 16} Early in 2006, David and Annette Chandler fell behind on
mortgage loan payments for a house they had occupied since 1989. On May 26,
2006, Wells Fargo Bank commenced a foreclosure action in the Warren County
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January Term, 2010
Court of Common Pleas. After receiving a mailing from FAI, the Chandlers
became customers of FAI. On June 13, 2006, they signed a standard “Mediation
Agreement” with FAI. The Chandlers made two payments of $450 to FAI for
FAI’s services — the first on June 22, 2006, in conjunction with the signing of the
agreement, and the second on September 14, 2006.
{¶ 17} Daniel B. Jones signed the agreement on behalf of FAI, but later,
Lance Trester became involved in the Chandler foreclosure. As supervisor of
operations, he was aware of the Chandler case and subsequently spoke several
times with Mr. Chandler on the phone.
{¶ 18} By letter dated August 3, 2006, FAI told the Chandlers that an
attorney had “filed a plea and answered” in the foreclosure action. But on August
8, 2006, upon motion of the plaintiff, the common pleas court entered a default
judgment against the Chandlers. The order specifically stated that the Chandlers
were “in default of Answer or other pleading.” The court entered an order that the
Chandlers’ home be sold on August 24, 2006.
{¶ 19} The Chandlers learned that their home was to be sold by reading
the newspaper. On or about October 6, 2006, Alexakis contacted attorney Willard
concerning the case, and Willard filed a motion to strike the complaint. Willard
informed Alexakis that the plaintiff would not stop the sale. The attorney had no
further involvement with the case. The home was sold at a sheriff’s sale on
October 23, 2006.
FAI’s handling of foreclosure No. 2
{¶ 20} In 2005, a homeowner who had first occupied his home in 1988
refinanced the house with an adjustable-rate-mortgage loan. Beginning early in
2006, the rising monthly interest charges on the mortgage loan made it difficult
for the homeowner to remain current with his payments. The homeowner’s
attempts to work out a new payment schedule with the lender, Wells Fargo,
proved fruitless. Subsequently, in March 2006, FAI contacted the homeowner
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through a letter from Lance Trester indicating the danger of foreclosure. In
telephone conversations, Lance Trester assured the homeowner that FAI had a
high success rate and could stave off foreclosure. The homeowner signed a
mediation agreement in April or May 2006, and Lance Trester advised him that he
should stop making mortgage-loan payments, that he should avoid filing for
bankruptcy, and that the foreclosure had been “stopped” by attorneys who would
be “taking care” of his case. The homeowner was told that the attorneys were
“too busy” to communicate directly with him and that the attorneys were “across
the hall” from the bank attorneys and would negotiate with the bank.
{¶ 21} Pursuant to the mediation agreement, the homeowner made two
deposits totaling $4,250 (representing four months of mortgage-loan payments) in
a special U.S. Bank account, and FAI withdrew $850 from that account as its fee.
Lance Trester thereafter negotiated with the bank; during that time, the
homeowner called Lance Trester twice per week and was told that attorneys were
working on his case but that they did not have time to talk to him. By October
2006, the homeowner’s calls went to Alexakis, who told the homeowner that he
owned FAI and that negotiations with the lender were ongoing. The homeowner
continued to try to speak with a lawyer, and a secretary at FAI finally gave him
the name of attorney Willard. When the homeowner called Willard, Willard told
him that he was not assigned to his case.
{¶ 22} In January 2007, the homeowner finally discovered that attorney
David Patterson was assigned to his case. By phone, Patterson told the
homeowner that an answer had been filed in the foreclosure case and that that was
all that Patterson had been hired to do. Patterson also obtained for the
homeowner a pay-off figure from Wells Fargo for back payments plus foreclosure
costs that amounted to over $17,000, a figure that exceeded what the homeowner
was able to pay.
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{¶ 23} In March 2007, the homeowner filed for bankruptcy; at first, he
attempted to retain the home by proceeding under Chapter 13, but later, the case
was converted to a Chapter 7 liquidation proceeding, and the homeowner lost his
home.
Disposition
Injunction against further unauthorized practice warranted
{¶ 24} Based upon the facts in this case, we have no difficulty concluding
that FAI, Alexakis, and Lance Trester engaged in the unauthorized practice of
law. The general business plan adopted by FAI as well as the specific handling of
the Chandler matter and the foreclosure against the second homeowner
demonstrate that FAI, Alexakis, and Lance Trester (1) gave advice to
homeowners in the context of pending or threatened foreclosure proceedings, in
particular, advice concerning whether to continue making mortgage payments and
the wisdom of legal alternatives such as bankruptcy, (2) made representations to
creditors on behalf of homeowners facing foreclosure, and (3) evaluated for and
with homeowners the terms and conditions of settlement in the foreclosure
proceedings. We have held that the unauthorized practice of law, defined at
Gov.Bar R. VII(2)(A) as “[t]he rendering of legal services for another by any
person not admitted to practice in Ohio,” includes those three activities when
performed by nonlawyers. See Ohio State Bar Assn. v Kolodner, 103 Ohio St.3d
504, 2004-Ohio-5581, 817 N.E.2d 25, ¶ 15 (unauthorized practice of law includes
“representation by a nonattorney who advises, counsels, or negotiates on behalf of
an individual or business in the attempt to resolve a collection claim between
debtors and creditors”); Cincinnati Bar Assn. v. Telford (1999), 85 Ohio St.3d
111, 113, 707 N.E.2d 462 (unauthorized practice of law includes a nonlawyer
giving “legal advice to defendants in pending [foreclosure and debt-collection]
lawsuits in an attempt to settle those cases”); Cincinnati Bar Assn. v Mullaney,
119 Ohio St.3d 412, 2008-Ohio-4541, 894 N.E.2d 1210, ¶ 20 (“laypersons engage
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in the unauthorized practice of law” by “advising debtors of their legal rights and
the terms and conditions of settlement in negotiations to avoid pending
foreclosure proceedings”); Cincinnati Bar Assn. v. Foreclosure Solutions, L.L.C.,
123 Ohio St.3d 107, 2009-Ohio-4174, 914 N.E.2d 386, ¶ 22, 26.
{¶ 25} Indeed, the constrained role played by licensed attorneys in this
case highlights the evils associated with laypersons providing legal services to the
public: instead of personally evaluating the particular situations of their clients,
the attorneys performed piecework by filing pleadings as part of the “single
strategy that respondents offered as a resolution—to stall the pending foreclosure
proceedings,” while nonlawyers such as Alexakis and Lance Trester pursued the
“negotiation of a settlement with the mortgagee.” Foreclosure Solutions at ¶ 23.
The record in this case indicates the possibility of far better outcomes for the
former homeowners had they received the full attention of qualified, competent
attorneys who abided by their ethical obligations. Instead, the former
homeowners paid hundreds of dollars for which they received little in return. See
Willard, 123 Ohio St.3d 15, 2009-Ohio-3629, 913 N.E.2d 960, ¶ 19, quoting
Mullaney, 119 Ohio St.3d 412, 894 N.E.2d 1210, at ¶ 23 (lawyer who worked
with FAI “intentionally fail[ed] to seek the lawful objectives of his client” by “
‘surrendering [his] professional judgment’ ” to FAI); Patterson, 124 Ohio St.3d
93, 2009-Ohio-6166, 919 N.E.2d 206, ¶ 8–32.
{¶ 26} Because we find that respondents engaged in the unauthorized
practice of law, we adopt the board’s recommendation and enter an injunction
against each of the respondents, forbidding any further violation.
Civil penalties justified
{¶ 27} We now turn to the board’s recommendation that civil penalties be
assessed against respondents. Gov.Bar R. VII(8)(B) authorizes the imposition of
such penalties in an amount up to $10,000 per offense based upon consideration
of relevant factors, four of which are enumerated.
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{¶ 28} 1. Degree of cooperation. Respondent Lance Trester actively
participated and cooperated in the proceedings by entering into stipulations with
relator and appearing and testifying at the hearing before the panel. By contrast,
respondents Alexakis and FAI did not participate or cooperate, apart from
Alexakis’s filing a pro se answer to the complaint.
{¶ 29} 2. Number of violations. The record documents FAI’s handling
of the Chandler and the other homeowner’s matters, but otherwise, the evidence is
inconclusive as to the total number of customers, the services they received, and
what harm they suffered.
{¶ 30} 3. Flagrancy. Respondents made damaging and misleading
representations to the Chandlers and the second homeowner during their
foreclosure cases. For example, respondents indicated in correspondence to Mr.
Chandler that an attorney had filed an answer and that the Chandlers had time to
get their affairs in order, but in fact, no answer had been filed, and default
judgment was entered against the Chandlers a mere five days after the
correspondence. Respondents also accepted a fee from the Chandlers after the
default. As to the second homeowner, respondents indicated to him that his
foreclosure had been “stopped,” a mischaracterization of the facts. In actuality,
an attorney whom the second homeowner had never met filed an answer, and the
foreclosure proceedings continued. FAI also indicated that attorneys were
providing legal services to the Chandlers and the second homeowner but were
“too busy” to speak with them, when in fact, the attorneys did no more than file
basic pleadings. After that, the attorneys took no action in the cases.
{¶ 31} 4. Harm to third parties. Both the Chandlers and the second
homeowner lost their homes in sheriff’s sales after becoming customers of FAI.
{¶ 32} 5. Other factors. The board identified additional considerations
as pertinent.
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{¶ 33} a. Pursuant to UPL Reg 400(F)(1), the board noted that relator
sought joint and several liability against the three respondents for a civil penalty
of $10,000 for each of the two specific instances of misconduct—the Chandler
matter and the second-homeowner matter.
{¶ 34} b. Pursuant to UPL Reg 400(F)(2), the board observed that the
“imposition of civil penalties would further the purposes of Gov.Bar R. VII by
deterring the establishment of additional ‘foreclosure assistance’ entities that
provide unlicensed legal representation to often-desperate, vulnerable
homeowners.”
{¶ 35} c. As aggravating factors pursuant to UPL Reg 400(F)(3), the
board noted that FAI was a for-profit enterprise that collected fees from its
customers and that Lance Trester and Kert Alexakis were paid employees, with
Alexakis serving as an officer of FAI.
{¶ 36} d. As mitigating factors pursuant to UPL Reg 400(F)(4), the
board observed that Lance Trester stipulated that his conduct involved the
unauthorized practice of law and that he had ceased providing foreclosure
services. The value of this factor is diluted by Lance Trester’s admission that he
opened a rival foreclosure-services business after leaving FAI’s employ. The
board also noted some mitigating effect of Lance Trester’s youth and
inexperience and the fact that he left college at his father’s request to take over
operations at FAI. As for FAI and Alexakis, the board found no mitigating
factors.
{¶ 37} As a final matter, the board persuasively refuted Lance Trester’s
contention that no civil penalties were justified in light of our decision in
Foreclosure Solutions, 123 Ohio St.3d 107, 2009-Ohio-4174, 914 N.E.2d 386, ¶
29–35. In Foreclosure Solutions, the parties stipulated that services had been
provided to 12,000 to 14,000 Ohioans, and that, in part, formed the basis for the
imposition of civil penalties. Id. at ¶ 11, 30. To be sure, the present case does not
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quantify the total number of instances of unauthorized practice of law; but this
case does present in detail the harmful effect of such violations in two specific
instances. Accordingly, we agree with the board’s analysis that civil penalties are
warranted in this case.
{¶ 38} The board recommended that we impose a civil penalty of $7,500
per documented violation jointly and severally against Kert Alexakis and FAI, for
a total penalty of $15,000. In light of the mitigating factors previously discussed,
the board recommended a civil penalty of $2,500 per documented violation
against Lance Trester, for a total penalty of $5,000. No objections have been filed
to the penalties, and we now adopt the board’s recommendation.
Conclusion
{¶ 39} For all the foregoing reasons, FAI, Kert Alexakis, and Lance
Trester are enjoined from further acts constituting the unauthorized practice of
law. In addition, a civil penalty of $15,000 is imposed jointly and severally
against FAI and Alexakis, and a civil penalty of $5,000 is imposed against Lance
Trester. Costs are taxed to respondents.
Judgment accordingly.
BROWN, C.J., and PFEIFER, LUNDBERG STRATTON, O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
__________________
Jonathan E. Coughlan, Disciplinary Counsel, and Heather Hissom,
Assistant Disciplinary Counsel, for relator.
Frost, Brown, Todd, L.L.C., and James Frooman, for respondent Lance
Trester.
______________________
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