Panel examines the foreclosure industry for UPL.

The Bar's Standing Committee on UPL has voted to issue an advisory opinion on what it considers the unlicenced practice of law by mortgage foreclosure assistance companies.

The committee voted to make its stand after taking testimony at a January 15 public hearing in Miami to consider whether work by mortgage foreclosure assistance companies crossed the line into UPL.

The committee determined that the following actions constitute UPL when performed by a nonlawyer on behalf of a party to a mortgage foreclosure action pending before a Florida court:

1) Negotiating with the lender or lender's attorney to modify, reinstate, or restructure the mortgage loan which forms the basis of the foreclosure action;

2) Drafting documents which memorialize the negotiations as the representative of a party to the foreclosure action;

3) Reviewing and explaining to the party to the mortgage foreclosure action documents drafted by the lender or lender's attorney which memorialize the negotiations;

4) Inducing the party to the mortgage foreclosure action to rely on the nonlawyer to handle all aspects of the foreclosure action for the party; and/or

5) Preparing pleadings and other documents to be filed in the court in connection with the mortgage foreclosure action

The UPL panel voted to decline to include in its opinion whether a nonlawyer who negotiates the modification, reinstatement, or restructure of a mortgage loan outside of the foreclosure context engages in the unlicenced practice of law, but noted that the "decision not to issue an opinion on this question should not be interpreted as an endorsement or approval of that activity."

The committee has directed the Bar's UPL Department staff to draft the opinion for review at its next meeting, at which time it will take a final vote on whether to file the opinion with the Florida Supreme Court, which has final say on the matter

"The current action of the committee does not guarantee that an opinion will be issued or the substance of the opinion," said Bar UPL Counsel Lori Holcomb.

Holcomb said the Bar decided to look into the matter after seeing an expansion of the mortgage foreclosure assistance industry and the public harm it is creating.

Janet Morgan, Bar staff counsel in the Ft. Lauderdale office who has investigated several complaints, said the foreclosure assistance companies get the names of homeowners sued in foreclosure from public records. They then direct mail advertise or contact the homeowners...