In addition to representing plaintiffs and defendants in foreclosure cases, I am regularly appointed by our local court to serve as a Guardian Ad Litem, Attorney Ad Litem, or Administrator Ad Litem in foreclosure cases. A recent frustrating experience with a “foreclosure mill” in one of those cases prompted me to write about this issue.
You’re probably asking yourself, “What exactly is a Guardian Ad Litem, Attorney Ad Litem, or Administrator Ad Litem?” It is a lawyer appointed by the court to represent the interests of a defendant in a foreclosure case when the plaintiff is unable to locate and serve a copy of the foreclosure lawsuit on that defendant. The distinction between a Guardian Ad Litem, Attorney Ad Litem, and Administrator Ad Litem depends on who they were appointed to represent. A Guardian Ad Litem is appointed to represent the interests of an unknown minor or incapacitated person. An Attorney Ad Litem is appointed to represent the interests of an unknown entity or person, including someone who is in active military service. An Administrator Ad Litem is appointed to represent the interests of unknown heirs, beneficiaries, or personal representatives of a deceased person. In most cases, the plaintiff is not entirely sure of the status of the unknown parties, so they seek the appointment of an attorney to serve in all three capacities. That attorney is commonly referred to as a “GAL,” regardless of whether they are serving as a Guardian Ad Litem, Attorney Ad Litem, Administrator Ad Litem, or any combination of the three categories.
The GAL is appointed to try to locate the defendant and to ensure that the defendant’s due process rights are considered by the Court, even if the person cannot ultimately be located. The defendant may have moved without leaving a forwarding address or may be evading service of process. In other cases, the defendant may be in active military service or may have died.
Why do the banks seek to have GALs appointed in foreclosure cases? Typically, it isn’t because they’re concerned about the borrowers’ due process rights. They usually do it so they can get insurable title after the foreclosure is finished. In most foreclosures, the bank ends up owning the property after a foreclosure sale. If a bank finishes the foreclosure without serving the lawsuit on a particular defendant (typically the property owner or borrower), subsequent purchasers may have concerns about the possibility of a title dispute resulting from a claim being brought by the person who did not receive notice of the foreclosure. This concern limits the bank’s ability to sell the property. By having a GAL appointed to represent the defendant’s interests, the bank alleviates the title concern.
It should not come as a surprise that many of the large banks and their lawyers don’t really care whether the GAL actually finds the defendant; they just need to go through the process. The bank pays the GAL’s fees, so they want to keep the GAL’s fees as low as possible, regardless of whether the GAL actually locates the missing defendant. In fact, some bank attorneys prefer that the GAL not locate the defendants since it usually prolongs the foreclosure if the defendant is located and the bank is required to serve the defendant.
Most of the high-volume foreclosure law firms (a/k/a the foreclosure mills) have preferred GALs who agree to work within the law firm’s compensation requirements, typically under $350.00, in exchange for receiving a large number of appointments. Those plaintiff-friendly GALs will conduct a minimal investigation and routinely file a report stating that the plaintiff’s paperwork is in order and the plaintiff can proceed to a final judgment. What I find interesting is that in most of the cases where I have been appointed, there is a “standing” defense apparent from the allegations of the Complaint and the attached exhibits. There must be a statistical anomaly since the cases I am appointed on routinely have apparent standing defenses, yet this rarely occurs when the foreclosure mills have their preferred GAL appointed. I have discussed this issue with other attorneys who serve as GALs but are not on the preferred list, and they noticed the same discrepancy.
Plaintiff’s lawyers could minimize the cost of the GAL if they would simply respond to the GAL’s requests for the basic information needed to locate the missing party. It is not uncommon to request the information several times before finally receiving a response from the bank’s attorney. In some cases, formal discovery requests and Motions to Compel are necessary just to get the banks to provide the basic information needed for the GAL to conduct an investigation. Interestingly, the most non-responsive law firms are the same ones that usually object that the GAL’s fees are too high. In recent years, the foreclosure mills have been attempting to limit the GAL’s compensation to $350.00 In Broward County, that provision is usually stricken from the proposed Order appointing the GAL with good reason. Even at reduced hourly rates, it is difficult to do the GAL’s job correctly for $350.00. Every case is different, but it is impossible, in most cases, to review the foreclosure pleadings, research the property being foreclosed, and conduct an investigation to locate the defendant for $350.00. That assumes, of course, that the GAL takes the role seriously and is concerned with actually trying to locate the missing party. Sadly, that isn’t always what happens.
When defendants are unable to be located, one common reason is that the person may be serving in the U.S. military. Federal laws and regulations afford certain protections to service members while they are in active military service. Among those protections are limitations on foreclosures and collection matters against the service member. Therefore, plaintiff’s attorneys or the GAL must check with the Department of Defense to determine whether the missing defendant is in active military service. Unfortunately, that is not always done, and there have been recent reports of service members losing their homes due to insufficient efforts by the plaintiff’s law firm and the GAL. [See Matt Weidner’s excellent blog for a recent story on this issue. Caveat: I have not reviewed the case file, so I don’t know the particulars and am not rendering any opinion on the GAL’s efforts in that case.]
In my experience, the plaintiff’s lawyers could avoid the need for a GAL in most foreclosure cases if they simply conducted their own minimal investigation. There are financial reasons they don’t do that. I will explain why in my next post.
Great article. I was always curious about what a guardian ad litem does in a foreclosure case. Thanks for explaining it.
Hi there, i read your blog occasionally and i own a similar one and i was just curious if you get a lot of spam comments? If so how do you reduce it, any plugin or anything you can advise? I get so much lately it’s driving me insane so any help is very much appreciated.
Yes, I get HUGE amounts of spam. Check out “Akismet” as a way to filter it. Good luck!
Based on my observation, after a property foreclosure home is bought at a bidding, it is common for the borrower to be able to still have some sort ofthat remaining balance on the mortgage. There are many creditors who try and have all expenses and liens repaid by the future buyer. Nevertheless, depending on specified programs, rules, and state legislation there may be several loans that are not easily solved through the transfer of financial loans. Therefore, the responsibility still lies on the debtor that has had his or her property foreclosed on. Thanks for sharing your opinions on this blog site.
I really like your blog.. very nice colors & theme. Did you create this website yourself or did you hire someone to do it for you? Plz reply as I’m looking to create my own blog and would like to find out where u got this from. cheers
Thanks for your comment. It’s a WordPress blog based off a framework by StudioPress.com. I changed some of the colors on my own.
One thing I’ve noticed is the fact there are plenty of misconceptions regarding the finance institutions intentions when talking about foreclosures. One delusion in particular is the fact that the bank wants your house. The financial institution wants your money, not your house. They want the money they lent you with interest. Averting the bank will only draw any foreclosed conclusion. Thanks for your write-up.
Great blog! Very informative and thorough. Of course, I love your logo and colors but I’m biased because we share the same colors! I’m a GAL in FCL cases as well and enjoyed your Department of Defense elaboration. I look forward to reading more of them. Keep them coming and best wishes on the New Year!
This article was very informative and I want to thank you so much. I have been ripped off twice from so called “modification attorneys” one who even moved my house to a land trust which was deemed illegal by the Attorney General Pam Bondi. Now Chase bank attorney is filing guardian ad litem in regards to this Florida Land trust even though I moved the Deed back in my name what can I do to prevent the foreclosure happening thru the ad litem? What motion should I file in my own defense? Collier County Florida
Hello Shirley. Thank you for taking the time to comment.
I’m sorry to hear about your experience with the “modification attorneys.” Sadly, there are many stories like yours. Although AG Bondi took efforts to stop the abusive practices, a lot of innocent people were damaged by some ‘bad apples.’
I cannot comment on your specific case without seeing the docket and all of the court filings. Although the law permits you to defend your own foreclosure case, I strongly recommend that you hire an experienced foreclosure defense lawyer. I’m not handling too many foreclosure defense cases and generally avoid litigation outside the South Florida tri-county area. Please email me directly, and I would be happy to provide you with the names of a few excellent defense lawyers who could review your case and advise you how to proceed.
John,
Thanks for this information, it helps explain some of what we’ve been watching for over a year now. However, you did not address the possibility of a defendant who is incarcerated.
In following one specific case through the public records, various filings which appear to keep dragging out a horizon for resolution way beyond what is logical, and the actual observance of those parties who might have responded if they were intent on anything other than extending the timeframe for eviction, it is obvious that there is a need for appointment of a GAL in order to bring finality to the process.
In this case, the defendant is in prison and there are family members who live there in the property and have judiciously avoided service of process in order to live rent-free for over a year.
The owner to the triplex where Iam residing is under forclosure. I just want to know what happens to me after all is finished.
Hello Rosalinda. Your comment was caught in my website’s spam filter, so I didn’t see it until today.
I recommend that you speak with an attorney about your specific situation, since there isn’t one catch-all answer. I am not currently handling foreclosure defense matters. If you do not know an experienced foreclosure defense lawyer, you should contact the bar association in your county for a referral. If you’re in Broward County, click here for the Broward County Bar Association Lawyer Referral Service.
I wish you the best of luck with your situation.
Is the Guardians job completed when and if they locate the borrower?
Hello Barry. Interestingly, the foreclosure “ad litem” statute [§49.31]doesn’t directly address that situation. The scope of the GAL’s role may vary between circuits or even between judges in the same circuit. It’s also important to review the Order appointing the GAL to see if it addresses the scope of the GAL’s duties.
My opinion and experience in Broward County is that the GAL’s job is completed when the person named in the Order is located. In those situations, I file a GAL’s Report explaining what I did to locate the person and list the person’s address, along with a recommendation that the plaintiff obtain personal service on the person. The rationale is that the plaintiff should not obligated to pay the GAL to defend an action on behalf of a defendant simply because the GAL could not initially locate the defendant for personal service. I had one case where the borrower/mortgagor was adamant that I had to defend him on the merits of the foreclosure. I brought the issue before the judge and she agreed with my position.
10 years ago, I served as attorney/manager of the default department for a law firm handling 100-200 foreclosures per month for 5-6 years. This post/commentary is 100 % consistent with my experience – and man, could I add to it! After my time representing foreclosing creditors, I took a case of a debtor who received no prior notice to a foreclosure- have been to SCOTUS and probably back again. The case illustrates that courts, as well as creditors, have no understanding or concern with due process. SCOTUS won’t enforce Mennonite on clear, undisputed violations, where all they have to do is remand on Mennonite. Let that soak in.
Thank you for taking the time to comment Clay. I suspect most lawyers working in the foreclosure arena for the past ten years could also share many stories about improprieties and due process violations. Best of luck with your “no notice” case!