I was reviewing an affidavit of attorneys fees submitted by a foreclosure mill yesterday when something big struck me. You see, the case law is very clear…no party can get attorney’s fees in any case unless there is an expert witness to testify that the amount of hours spent on the file was reasonable and that the hourly fee charged by the attorney claiming it is reasonable. The affidavit provided by the mills even contains the factors which are clearly spelled out in Florida Supreme Court Case, Florida Patient Compensation Fund:
The factors to be considered by a court in making these determinations, as set forth in the opinion, are those factors enunciated in Rule 4-1.5 of the Florida Bar Code of Professional Responsibility. They are as follows:
1. The time and labor required, the novelty, complexity, and difficulty of the questions involved, and the skill requisite to perform the legal services properly;
2. The likelihood that the acceptance of the particular employment will preclude other employment by the lawyer;
3. The fee, or rate of fee, customarily charged in the locality for legal services of a comparable or similar nature;
4. The significance of or amount involved in, the subject matter of the representation, the responsibility involved in the representation, and the results obtained;
5. The time limitation imposed by the clients or by the circumstances and, as between attorney and client, any additional or special time demands or requests of the attorney by the client;
6. The nature and length of the professional relationship with the client;
7. The experience, reputation, diligence, and ability of the lawyer or lawyers performing the service and the skill, expertise, or efficience of effort reflected in the actual providing of such services; and
8. Whether the fee is fixed or contingent, and, if fixed as to amount or rate, then whether the client’s ability to pay rested to any significant degree on the outcome of the representation.
Now here’s a real problem for all the mills and the robo signing attorney’s fee affiants……when the attorneys who are appearing in court don’t even have the case files with them, there ain’t no way these attorney fee “experts” have even seen the files, much less can they answer the questions above…THAT THEY ARE REQUIRED TO ANSWER ACCORDING TO THE FLORIDA SUPREME COURT!
Here’s the thing that smacked me straight in the head yesterday. Take the time to read the foreclosure mill’s affidavit of reasonable attorney’s fee….in the form produced by one particular mill, the affidavit first quotes the case above, then it actually says…”I HAVE NOT EVEN REVIEWED THE FILE IN THIS CASE”. The case they quote in one section of the affidavit requires an examination of the file, yet the right there smack dab within the affidavit itself, they swear under oath and tell you that they have not reviewed the file and thus they could not have complied with the Supreme Court directive. There are many other significant problems with the affidavits of reasonable attorney’s fee that I’m holding back on until this gets fleshed out in a hearing, but let me give all of you a hint…..have you heard of the word, “Robo Signing”?
Well, keep that in mind when you’re looking at the affidavit of reasonable attorney’s fees that this is a piece of evidence filed in a court case….it matters. It was signed by at least one attorney….probably two. It was notarized…pay close attention to Chapter 117, Florida’s Notary Statute. You will find that in most cases these affidavits violate…violate…violate….But who really cares, right? I mean, everyone knows the mills are entitled to $1,200, right? Well, remember the whole “Robo Signing” thing….. Well, in attacking robo signed affidavits of attorneys fees, we have case law, statutes and the Rules of Professional Responsibility to focus in on…..USE THEM.
But wait….there’s more…..another thing…and it’s the best thing….it’s really quite wonderful. Even if the serpents who are swearing for these mills before they sell their souls and create these inherently false affidavits…THE AFFIDAVITS ARE USELESS UNDER A PROPER CHALLENGE….THEY’RE NOT ADMISSABLE!
How’s that? Whaddya say? Not admissable? Yup! Just read the case law. If the mills want their fees, they gotta have a real live, in the flesh expert in the courtroom to testify about the reasonableness of the fees…but don’t just take my word for it….the case law on this particular issue just below…