BEFORE THE HEARING BOARD "(LEDOF THE
ILLINOIS ATTORNEY REGISTRATION AUP - 1 f0fJAND
ATTY REG &DISC CDmmDISCIPLINARY COMMISSION CHICAGOIn the Matter of:
DARREN ANTHONY FISH, Commission No. 2013PR00065
Attorney-Respondent,
No. 6288764.
RESPONDENT'S ANSWER TO COMPLAINT
Now comes Respondent, DARREN ANTHONY FISH, by his attorney, SAMUEL
J. MANELLA, and in response to the Administrator's Complaint, states as follows:
Allegations Common to Counts I through III
1. Between February 2010 and approximately November 2010,
Respondent as the sole owner of a law firm operating under the name, "Law
Offices of Darren A. Fish." As part of his practice, Respondent offered services
to clients that included modification of the terms of mortgage loans and
foreclosure defense.
ANSWER:
Respondent admits the allegations contained in Paragraph 1 of Allegations
Common to Counts I through III.
2. Foreclosure Defense Program, LLC ("FDP"), a New Mexico limited
liability company (and later known as Foreclosure Defense Group ("FDG")),
advertised for, solicited, and contacted individuals it determined may need
assistance in modification of the terms of their mortgages.FDG advertised that
it referred clients to its "national network of litigating attorney firms" who
"practiced mortgage relief and foreclosure defense litigation"who in turn
provided a "full service defense." On or about February 2010, Respondent
entered into a "Database Services Agreement" with FDG, which stated, in
part, the following:
"FDP will perform initial potential client intake by gatheringdata on a list of pre- approved questions submitted by Fish,and by gathering documents, in the public domain andotherwise, as requested by Fish, and putting those documentstogether in a structure as directed by Fish. This data shallinclude but not necessarily be limited to: client's foreclosurecase number; foreclosing bank, county of the case, courtcalendar and courtroom number of the case, contactinformation for plaintiffs' attorneys, and certain basic clericalintake data. FDP will organize client interview and provideoffice space for Fish by mutual schedule for Fish to meetclients and review their files. FDP will provide Fish withremote software access, which they will maintain at their coston their servers, said software enables Fish to effectivelydocket motions, keep track of deadlines, keep messagecontact with client, and other basic clerical technical supportthat a reasonable law practice would need ."
ANSWER:
Respondent admits in part and/denies in part the allegations contained in
Paragraph 2. Modifications were not part of the services that FDG
participated in other than to obtain documents. FDG did assist in
obtaining, scanning and organizing documents in a manner for review. A
client management, communication and document registry was created
and intended to provide client/attorney unfettered access to documents,
communication with each other and document communications initiated
and completed.
3. The Database Services Agreement as described in paragraph two,
above, further provided that Respondent would pay FDG $400 per month for each
client for whom Respondent utilized FDG's services until the time that the attorney-
client relationship terminated.
ANSWER:
Respondent admits the allegations contained in Paragraph 3 of Allegations
Common to Counts I through III.
4 Mark Laskowski ("Laskowski"), a non-attorney, signed the Database
Services Agreement on behalf of FDG on February 3,2010.
ANSWER:
Respondent admits the allegations contained in Paragraph 4 of Allegations
Common to Counts I through III.
5. Respondent was not involved in the interviewing, hiring or training of
the employees of FDG, did not routinely work in the same physical office space as
FDG employees, nor did Respondent monitor the telephone conversations between
FDG employees and potential clients.
ANSWER:
Respondent denies he was not involved in the training of FDG
employees, and that he did not work routinely from the same physical
office and did not monitor telephone conversations between employees
and potential clients as alleged in Paragraph 5 of Allegations Common
to Counts I through III. Respondent admits the balance of Paragraph 5
of Allegations Common to Counts I through III.
6. Between February 2010 and the beginning of 2011, representatives of
FDG took calls from individuals responding to FDG solicitation
letters. During those calls, FDG employees requested information from the
potential clients regarding their mortgages as initially directed by Respondent.
The representatives then completed a client intake form and referred individual s
to Respondent for a consultation.
ANSWER:
Respondent admits the allegations contained in Paragraph 6 of
Allegations Common to Counts I through III.
7. Between February 2010 and the beginning of 2011, Respondent
received approximately 20-30 referrals per month from FDG. Of those referrals,
Respondent agreed to represent approximately 10-15 clients each month. Those
individuals whom Respondent agreed to represent would be required to pay
Respondent certain legal fees. From those legal fees Respondent collected,
Respondent paid FDG $400 per month for services relating to-the referral, until the
representation concluded.
ANSWER:
Respondent admits the allegations contained in Paragraph 7 of Allegations
Common to Counts I through III.
8. At all times alleged in Counts I through VIII of the complaint,
Respondent deposited the monthly fees and costs paid by each client pursuant to
the attorney-client agreements into his business operating account ending in the
four digits 5722, at TCF Bank, titled 'The Law Office of Darren Fish," or into his
business operating account ending in the four digits 3047, at North Community
Bank, titled "Law Offices of Darren A. Fish."
ANSWER:
Respondent admits the allegations contained in Paragraph 8 of Allegations
Common to Counts I through III.
COUNT I
(Sharing legal fees with a non-attorney, lack of diligence, improperand excessive fee, failure to communicate and failure to return anunearned fee - Kazimierz Birkos)
9. On or about March 10, 2010, Respondent agreed to represent
Kazimierz Birkos ("Birkos"), an FDG referral, in a mortgage foreclosure action. At
that time, a judgment of foreclosure had previously been entered on the property, in
which Birkos had an interest, located on Superior Street in Chicago, Illinois ("the
Superior Street property") , and the Superior Street property had been sold at a
judicial sale on March 8, 2010. Respondent also agreed to represent Birkos in
attempting to obtain a modification to his mortgage terms on a second property,
in which he had an interest, located on North Oketo in Chicago, Illinois ("the Oketo
property").
ANSWER:
Respondent admits the allegations contained in the first two sentences of
Paragraph 9 and further answering states that he denies that he was attempting
to obtain a modification, but in fact he was seeking a restructuring of the
original loan in contrast to a modification as alleged in Paragraph 9 of Count I of
the Complaint.
10. On or about March 10, 2010, Birkos signed an attorney-client
agreement and paid Respondent his requested fee of $495 for "upfront costs of
litigation." Pursuant to the agreement, Birkos also agreed to pay Respondent a
purported "monthly classic retainer" ("the retainer") of $750. Finally, the
agreement provided that if Respondent obtained a reduction in the principal
amount of Birkos' loan, Birkos agreed to pay Respondent a contingency fee
equaling up to 20% of the total amount of any reduction. On or about March 10,
2010, Birkos paid Respondent $1,245 in cash, representing costs and one month of
the retainer.
ANSWER:
Respondent denies that the retainer was a "purported" retainer, and admits
the allegations contained in the balance of Paragraph 10 of Count I of the
Complaint.
11. On or about March 31, 2010, Respondent, or someone acting at
his direction, caused to be filed an emergency motion to vacate the default judgment
in the foreclosure matter relating to the Superior Street property, Indymac Bank
F.S.B. v. Kazimierz Birkos, et ai, case number 2008 CH 11750 (Cook County
Circuit Court). On or about May 18, 2010, the court entered an order denying
Respondent's motion, and entering an order for possession of the Superior Street
property in case number 2008 CH 11750. After May 18, 20 10, Respondent took no
further action on Birkos' behalf concerning the Superior Street property.
ANSWER:
Respondent admits the allegations contained in Paragraph 11 of Count I of the
Complaint.
12. On or before September 16, 2010, Respondent, or someone
acting at his direction, requested that agents working on behalf of Certified
Forensic Loan Auditors, LLC ('CFLA"), perform a "forensic loan audit" or review of
Birkos' mortgage loan documents from his purchase of the Oketo property to
determine whether Birkos' lender complied with state and federal mortgage lending
laws and produce a report of its findings in relation to the Oketo property.
Respondent received the forensic loan audit from CFLA on or before September
16,2010.
ANSWER:
Respondent admits the allegations contained in Paragraph 12 of Counts I of the
Complaint.
13. At no time did Respondent provide a copy of the
forensic loan audit report relating to the Oketo property to Birkos for his review,
input or discussion.
ANSWER:
Respondent denies the allegations contained in Paragraph 13 of Count I of the
Complaint.
14. On at least ten occasions during Respondent's representation,
Birkos telephoned Respondent's office requesting the status of the loan
modification for the Oketo property. On a few of those occasions, a non-attorney
employee of Respondent's law firm advised Birkos that everything was "ok" and
that "No news [was] good news."
ANSWER:
Respondent neither admits nor denies due to insufficient knowledge, but
further answering states that protocols were in place that all clients be
contacted no less than twice a month regardless of activity in a matter, as
alleged in Paragraph 14 of Count I of the Complaint.
15. At no time did Respondent, or anyone on his behalf, contact Birkos
to discuss his case, review his records and/or discuss his legal objectives.
ANSWER:
Respondent denies the allegations contained in Paragraph 15 of Count I of the
Complaint and further answering, states that in addition to phone
communications, each month Mr. Birkos had attorneys and staff available to him
to update and/or discuss his matter upon request as he made payments.
16. On or about February 18, 2011, Paul Fine, an associate attorney
at Respondent's firm, sent a request to Wells Fargo, Birkos' mortgagor for the
Oketo property, requesting a modification of the terms of Birkos' mortgage.
ANSWER:
Respondent admits the allegations contained in Paragraph 13 of Count I of the
Complaint.
17. On or about March 3, 2011, Respondent sent a letter to Wells
Fargo stating that his office had been retained by Birkos to negotiate a
restructuring of Birkos' loan.
ANSWER:
Respondent admits the allegations contained in Paragraph 13 of Count I of the
Complaint.
18. At no time after March 3, 2011, did Respondent, or anyone on his
behalf, take any further action on behalf of Birkos in relation to the modification
of the Oketo property mortgage.
ANSWER:
Respondent denies the allegations contained in Paragraph 13 of Count I of the
Complaint.
19. Between March 2010 and June 2011, Birkos paid in cash
Respondent's requested $750 "monthly classic retainer," for a total of $12,495.
From that amount, and during the same period, Respondent paid FDG $400 per
month for Birkos' referral, pursuant to the Database Services Agreement.
ANSWER:
Respondent admits payments were made by Mr. Birkos up to and including
September 2010 by Mr. Birkos for his legal services as alleged in Paragraph 19
of Count I of the Complaint. Respondent has no record showing payments
made past September 2010, so Respondent denies that he was paid a total of
$12,495. Respondent denies that payment to FDG was for a referral.
20. Respondent did not perform sufficient work or incur sufficient costs
which would entitle him to retain the $12,495 he received from Birkos.
ANSWER:
Respondent denies the allegation contained in Paragraph 20 of Count I of the
Complaint.
21. As of July 8, 2011, Respondent had not communicated the status of
his actions to Birkos, and as a result, on that same date, Birkos filed a
charge with the Illinois Attorney Registration and Disciplinary Commission
requesting termination of the representation and a refund of the unearned fees
and costs paid to Respondent.
ANSWER;
Respondent denies that he had not communicated the status of his actions
to Birkos. Respondent admits a charge was filed as alleged in Paragraph 21
of Count I of the Complaint. Respondent denies the balance of Paragraph 21
of Count I of the Complaint.
22. As of April 8, 2013, the date on which the Inquiry Panel voted
that a complaint be filed in this matter, Respondent had not issued a refund of the
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unearned legal fees or costs paid by Birkos.
ANSWER:
Respondent admits that a refund of payments was not made as alleged in
Paragraph 22 of Count I of the Complaint. Respondent denies that these fees
were unearned.
23. By the reason of the conduct outlined above, Respondent has
engaged in the following misconduct:
a) failure to act with reasonable diligence andpromptness in representing a client, in violationof Rule 1.3 of the Illinois Rules of Professional
Conduct;
b) failure to reasonably consult with the clientabout the means by which the client'sobjectives are to be accomplished, failure tokeep the client reasonably informed about thestatus of a matter and failure to promptlycomply with reasonable requests forinformation, in violation of Rule 1.4(a)(2-4) ofthe Illinois Rules of Professional Conduct;
c) failure to explain a matter to the extentreasonably necessary to permit the client tomake informed decisions regarding therepresentation , in violation of Rule 1.4(b) of theIllinois Rules of Professional Conduct;
d) making an agreement for, charging andcollecting an unreasonable fee, in violation ofRule 1.5(a) of the Illinois Rules of ProfessionalConduct;
e) failing to hold property of clients in the lawyer'spossession in connection with a representationseparate from the lawyer's own property, inviolation of Rule 1.1S(a) of the Illinois Rules ofProfessional Conduct;
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f) failing to deposit in a client trust account fundsreceived to secure payment of legal fees andexpenses, in violation of Rule 1.1 S(c) of theIllinois Rules of Professional Conduct;
g) upon termination of representation, failure torefund any advance payment of fee or expensethat has not been earned or incurred, inviolation of Rule 1.16(d) of the Illinois Rules ofProfessional Conduct;
h) failure to make reasonable efforts to expeditelitigation consistent with the interests of theclient, in violation of Rule 3.2 of the IllinoisRules of Professional Conduct;
i) sharing legal fees with a non-lawyer, inviolation of Rule 5.4(a) of the Illinois Rules ofProfessional Conduct;
j. conduct involving dishonesty, fraud, deceit ormisrepresentation, in violation of Rule 8.4(c)of the Illinois Rules of Professional Conduct
k. conduct prejudicial to the administration ofjustice , in violation of Rule 8.4(d) of the IllinoisRules of Professional Conduct; and
I. conduct which tends to defeat the
administration of justice or bring the courts orlegal profession into disrepute.
ANSWER:
Respondent denies the allegations contained in Paragraph 23 (a) through
(I) of Count I of the Complaint.
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COUNT II
(Sharing legal fees with a non-attorney, lack ofdiligence, improper andexcessive fee, failure to communicate and failure to return an unearned fee
-Jadwiga Bielecka)
24. On or about March 20, 2010, Respondent agreed to represent
Jadwiga Bielecka ("Bielecka"), who was referred to him by FDG, in a mortgage
foreclosure action. On that date, Bielecka signed an attorney-client agreement
and paid Respondent his requested fee of $495 for "upfront costs of litigation."
Pursuant to the agreement, Bielecka also agreed to pay Respondent a purported
"monthly classic retainer" of $700, which payments would be automatically
debited from Bielecka's checking account held at Harris Bank. Bielecka paid
Respondent a total of $1,195 on March 20, 2010, representing costs and one
month of the retainer.
ANSWER:
Respondent admits that he agreed to represent Jadwiga Bielecka but neither
admits nor denies that FDG referred her to him due to insufficient knowledge
as alleged in the first sentence of Paragraph 24 of Count II of the Complaint.
Respondent admits the allegation in the second sentence of Paragraph 24.
Respondent denies the retainer was "purported" as alleged in the third
sentence of Paragraph 24 and admits the balance of said Paragraph 24 of
Count II of the Complaint.
25. Respondent had no further communications with Bielecka
regarding her foreclosure matter after their initial meeting on March 20, 2010.
13
ANSWER:
Respondent denies the allegation contained in Paragraph 25 of Count II of the
Complaint.
26. On or about June 22, 2010, attorneys on behalf of JPMorgan
Chase Bank caused to be filed a complaint to foreclose mortgage against Bielecka
in the Circuit Court of Cook County. The Clerk of the Court docketed the matter as
JPMorgan Chase Bank v. Jadwiga Bielecka, case number 2010 CH 26711.
ANSWER:
Respondent admits the allegations contained in Paragraph 26 of Count II of the
Complaint.
27. On or about August 31, 2010, Respondent caused to be filed his
appearance on behalf of Bielecka in case number 2010 CH 26711.
ANSWER:
Respondent admits the allegations contained in Paragraph 27 of Count II of the
Complaint.
28. At no time did Respondent, or anyone acting at his direction, file
an answer or other responsive pleading on behalf of Bielecka in case number 2010
CH2671 1.
ANSWER:
Respondent admits the allegations contained in Paragraph 28 of Count II of the
Complaint.
29. Between May 20, 2010 and October 20, 2010, Bielecka continued
to pay the "monthly classic retainer" of $700 for Respondent's services, pursuant to
14
the attorney-client agreement. Between April 2010 and October 2010, Respondent
paid FDG $400 per month for the Bielecka referral pursuant to the Database
Services Agreement.
ANSWER:
Respondent admits the allegations contained in the first sentence of Paragraph
29 of Count II of the Complaint. Respondent neither admits nor denies the
allegation contained in the second sentence of Paragraph 29 of Count II of the
Complaint, as Respondent has no records indicating this client was a product
of FDG marketing, but does deny any payments were made to FDG for
referrals, as alleged in Paragraph 29 of Count II of the Complaint.
30. On or about October 1, 2010, attorneys on behalf of JPMorgan
Chase caused to be filed a motion for entry of an order of default and judgment
of foreclosure and sale in case number 2010 CH 26711. Respondent received
service of the motion shortly thereafter.
ANSWER;
Respondent admits the allegations contained in Paragraph 30 of Count II of the
Complaint.
31. At no time did Respondent respond or object to the motion for
entry of and order of default and judgment of foreclosure and sale in case number
2010 CH 26711.
15
ANSWER:
Respondent admits the allegation contained in Paragraph 31 of Count II of the
Complaint.
32. In about early November 2010, Bielecka contacted Respondent
on three separate occasions and requested a status of her matter. Respondent
received Bielecka's requests, but did not respond to her requests. As a result,
Bielecka terminated the representation and requested a refund of the unearned
fees paid to Respondent.
ANSWER:
Respondent denies the allegations contained in the first two sentences of
Paragraph 32 of Count II of the Complaint, and further states that multiple
appointments were set and opportunities were offered to discuss in detail.
Respondent neither admits nor denies the third sentence due to insufficient
knowledge.
33. In or about November 20I0, Bielecka caused the automatic debit
of the "monthly classic retainer" fees from her checking account to cease.
ANSWER:
Respondent admits the allegations contained in Paragraph 33 of Count II of the
Complaint.
34. On or about November 22, 2010, Respondent caused to be filed a
motion for withdrawal and agreed withdrawal of attorney in case number 2010 CH
2671, which was granted on December 17, 2010.
16
ANSWER;
Respondent admits the allegations contained in Paragraph 34 of Count II of the
Complaint
35. Respondent did not perform sufficient work or incur sufficient costs
which would entitle him to retain the $5,395 he received from Bielecka.
ANSWER:
Respondent denies the allegations contained in Paragraph 35 of Count II of
the Complaint.
36. As of April 8, 2013, the date on which the Inquiry Panel voted that
a complaint be filed in this matter, Respondent had not issued a refund of the
unearned legal fees or costs paid by Bielecka.
ANSWER:
Respondent admits that a refund of payments was not made as alleged in
Paragraph 36 of Count II of the Complaint. Respondent denies that these fees
were unearned.
37. By reason of the conduct outlined above, Respondent has engaged in thefollowing misconduct:
a. failure to act with reasonable diligence and promptness inrepresenting a client, in violation of Rule 1.3 of the Illinois Rules ofProfessional Conduct;
b. failure to reasonably consult with the client about the means bywhich the client's objectives are to be accomplished, failure to keepthe client reasonably informed about the status of a matter andfailure to promptly comply with reasonable requests for information,in violation of Rule 1.4(a)(2-4) of the Illinois Rules of ProfessionalConduct;
17
c. failure to explain a matter to the extent reasonably necessary topermit the client to make informed decisions regarding therepresentation, in violation of Rule 1.4(b) of the Illinois Rules ofProfessional Conduct;
d. making an agreement for, charging and collecting an unreasonablefee, in violation of Rule 1.5(a) of the Illinois Rules of ProfessionalConduct;
e. failing to hold property of clients in the lawyer's possession inconnection with a representation separate from the lawyer's ownproperty, in violation of Rule 1.15(a) of the Illinois Rules ofProfessional Conduct;
f. failing to deposit in a client trust account funds received to securepayment of legal fees and expenses, in violation of Rule 1.15(c) ofthe Illinois Rules of Professional Conduct;
g. upon termination of representation, failure to refund any advancepayment of fee or expense that has not been earned or incurred, inviolation of Rule 1.16(d) of the Illinois Rules of ProfessionalConduct;
h. failure to make reasonable efforts to expedite litigation consistentwith the interests of the client, in violation of Rule 3.2 of the IllinoisRules of Professional Conduct;
i. sharing legal fees with a non-lawyer, in violation of Rule 5.4(a) ofthe Illinois Rules of Professional Conduct;
j. conduct involving dishonesty, fraud, deceit or misrepresentation, inviolation of Rule 8.4(c) of the Illinois Rules of Professional Conduct;
k. conduct prejudicial to the administration of justice, in violation ofRule 8.4(d) of the Illinois Rules of Professional Conduct; and
I. conduct which tends to defeat the administration of justice or bringthe courts or legal profession into disrepute.
ANSWER:
Respondent denies the allegations contained in Paragraph 37 (a) through (I) of
Count II of the Complaint.
COUNT III
(Sharing legal fees with a non-attorney, lack ofdiligence, improper andexcessive fee, failure to communicate and failure to return an unearned fee -
Allen &Antoinette Edmundson)
18
38. On or about May 20, 2010, Respondent agreed to represent Allen and
Antoinette Edmundson ("the Edmundsons"), who were referred to him by FDG, in a
mortgage foreclosure action and potential loan modification. At the time of the
representation , a motion for judgment of foreclosure against the Edmundsons was
pending in case number 2009 CH 20022, filed before the Circuit Court of Cook
County.
AMSWER'
Respondent admits that Respondent agreed to represent the Edmundsons in a
potential loan modification, and denies the balance of allegations contained in
Paragraph 38 of Count III of the Complaint
39. On or about May 20, 2010, the Edmundsons signed an attorney-
client agreement and paid Respondent his requested fee of $750 for the cost of a
forensic loan audit to be performed. The Edmundsons also agreed to pay
Respondent a purported "monthly classic retainer" of $750. Finally, if Respondent
obtained a reduction in the principal amount of the Edmundsons' loan, the
Edmundsons agreed to pay Respondent a contingency fee equaling up to 20% of
the total amount of any reduction . The Edmundsons paid Respondent a total of
$1,000 on May 20, 20 I 0, and an additional $500 shortly thereafter, representing
costs and one month of the retainer.
ANSWER:
Respondent denies that the retainer was "purported" and admits the balance of
the allegations contained in Paragraph 39 of Count III of the Complaint.
40. At no time after May 20, 2010, did Respondent, or anyone acting
19
at his direction, discuss the Edmundsons' case with them, review their records
and/or discuss their legal objectives.
ANSWER:
Respondent denies the allegations contained in Paragraph 40 of Count III of the
Complaint.
41. Between May 20, 20 I 0 and February 2012, the Edmundsons
paid the "monthly classic retainer" of $750 for Respondent's services, pursuant
to the attorney-client agreement. During this same period of time, Respondent
paid FDG $400 per month for the Edmundson referral pursuant to the Database
Services Agreement.
ANSWER:
Respondent admits that Edmundsons made monthly capped payments for
legal services provided as alleged in the first sentence of Paragraph 41 of
Count III of the Complaint. Respondent denies the allegation contained in
the second sentence that payments towards FDG were for referral and
denies payments towards FDG's services extended beyond December 2010,
when the services by FDG were terminated.
42. At no time between May 20, 2010 and February 2012, did
Respondent, or anyone acting at his direction, file an appearance, answer or any
other responsive pleading on behalf of the Edmundsons in case number 2009 CH
20022.
20
ANSWER:
Respondent admits the allegations contained in Paragraph 42 of Count III of
the Complaint.
43. Between May 20, 2010 and February 2012, the Edmundsons' file
was assigned to at least six different attorneys in Respondent's office. During that
time, the Edmundsons left numerous messages requesting information regarding
their case without receiving responses to their inquiries.
ANSWER:
Respondent admits multiple attorneys were assigned as team to work cases;
protocol was two associates, one senior associate and Supervising Attorney
and/or Respondent. As one or more rotated through the team another would be
assigned as backup into the team. This ensured no one would be caught flat
footed and unprepared should it be assigned to only one attorney. Respondent
terminated Mr. Brydges Supervisory position in July, 2011 when Respondent
was of the opinion he was failing to meet Respondent's strict protocols set in
place. Respondent denies responses to clients' inquiries were not made as
alleged in Paragraph 43 in Count III of the Complaint.
44. Between May 20, 2010 and February 2012, the Edmundsons
continued to receive correspondence directly from their lender regarding
opportunities to restructure the current terms of their mortgage. On each
occasion when Mrs. Edmundson received a letter from the lender, she
contacted Respondent's office and Respondent, or someone acting at his
direction, instructed Mrs. Edmundson to disregard the letters.
21
ANSWER:
Respondent neither admits nor denies the allegations in the first sentence
of Paragraph 44 due to insufficient knowledge. Respondent denies the
allegations contained in the second sentence Paragraph 44 of Count III of
the Complaint.
45. On or about February 14, 2012, Wendy Fawcett ("Fawcett"),
an associate attorney at Respondent's law firm, sent a letter to the Edmundsons
requesting that they complete a loan modification application packet which she
would then submit to their lender. Shortly thereafter, the Edmundsons completed
and returned the documentation. Respondent, nor Fawcett, nor anyone acting at
the direction of Respondent, submitted the completed documentation to the
Edmundsons' lender.
ANSWER:
Respondent admits the allegations contained in the first two sentences of
Paragraph 45 of Count III of the Complaint Respondent denies the balance
of allegations contained in Paragraph 45 of Count III of the Complaint.
46. On or about March 30, 2012, Fawcett sent a letter to the
Edmundsons advising them that their home was still in foreclosure, and that they
needed to discuss the firm's filing of an appearance and answer in case number
2009 CH 20022.
22
ANSWER:
Respondent admits the allegations contained in Paragraph 46 of Count III of
the Complaint
47. On or about March 30, 2012, the Edmundsons terminated
Respondent's representation of them and requested a refund of the unearned
fees and costs paid to Respondent.
ANSWER:
Respondent denies the allegations contained in Paragraph 47 of Count III of
the Complaint and further answering, states continued discussions, phone
calls and in person meetings were held with the Edmundsons despite their
non-payment on and through October 2012.
48. Respondent did not perform sufficient work or incur sufficient costs
which would entitle him to retain the $17,250 received from the Edmundsons.
ANSWER:
Respondent denies the allegations contained in Paragraph 48 of Count III of
the Complaint.
49. As of April 8, 2013, the date on which the Inquiry Panel voted
that a complaint be filed in this matter, Respondent had not issued a refund of
the unearned legal fees or costs paid by the Edmundsons.
ANSWER:
Respondent admits that a refund of payments was not made as alleged in
Paragraph 49 of Count III of the Complaint. Respondent denies that these fees
23
were unearned.
50. By reason of the conduct outlined above, Respondent has engaged in thefollowing misconduct:
a. failure to act with reasonable diligence and promptness inrepresenting a client, in violation of Rule 1.3 of the Illinois Rules ofProfessional Conduct;
b. failure to reasonably consult with the client about the means bywhich the client's objectives are to be accomplished, failure to keepthe client reasonably informed about the status of a matter andfailure to promptly comply with reasonable requests for information,in violation of Rule 1.4(a)(2-4) of the Illinois Rules of ProfessionalConduct;
c. failure to explain a matter to the extent reasonably necessary topermit the client to make informed decisions regarding therepresentation, in violation of Rule 1.4(b) of the Illinois Rules ofProfessional Conduct;
d. making an agreement for, charging and collecting an unreasonablefee in violation of Rule 1.5(a) of the Illinois Rules of ProfessionalConduct;
e. failing to hold property of clients in the lawyer's possession inconnection with a representation separate from the lawyer's ownproperty, in violation of Rule 1.15(a) of the Illinois Rules ofProfessional Conduct;
f. failing to deposit in a client trust account funds received to securepayment of legal fees and expenses, in violation of Rule 1.15(c) ofthe Illinois Rules of Professional Conduct;
g. upon termination of representation, failure to refund any advancepayment of fee or expense that has not been earned or incurred, inviolation of Rule 1.16(d) of the Illinois Rules of ProfessionalConduct;
h. failure to make reasonable efforts to expedite litigation consistentwith the interests of the client, in violation of Rule 3.2 of the IllinoisRules of Professional Conduct;
i. sharing legal fees with a non-lawyer, in violation of Rule 5.4(a) ofthe Illinois Rules of Professional Conduct;
j. conduct involving dishonesty, fraud, deceit or misrepresentation, inviolation of Rule 8.4(c) of the Illinois Rules of Professional Conduct;
24
k. conduct prejudicial to the administration of justice, in violation ofRule 8.4(d) of the Illinois Rules of Professional Conduct; and
I. conduct which tends to defeat the administration of justice or bringthe courts or legal profession into disrepute.
ANSWER:
Respondent denies the allegations contained in Paragraph 50 (a) through (I) of
Count III of the Complaint.
COUNT IV
(Lack ofdiligence, improper and excessivefee, failure to communicateand failure to return an
Unearned fee -James & Sandra Patrick)
51. On or about February 18, 2010, Respondent agreed to represent
James and Sandra Patrick ("the Patricks") in a predatory lending complaint against
the Patricks' mortgagor, EMC Mortgage Corporation ("EMC"). On that date, the
Patricks signed an attorney-client agreement and paid Respondent his requested
fee of $1,250 for "upfront costs of litigation." The Patricks also agreed to pay
Respondent a purported "monthly classic retainer" of $750, which payments would
be automatically debited from the Patricks' checking account held at JPMorgan
Chase Bank. The Patricks paid Respondent a total of $2,000 on February 18,
2010, representing the costs and one month of the retainer.
ANSWER:
Respondent admits the first two sentences of Paragraph 51 of Count IV of the
Complaint. Respondent denies the retainer was "purported" and admits the
balance of the third sentence in Paragraph 51 of Count IV of the Complaint
Respondent denies the last sentence of Paragraph 51 of Count IV of the
25
Complaint.
52. On or about May 11, 2010, Certified Forensic Loan Auditors, LLC
sent a forensic loan audit report to Respondent which was prepared on behalf of the
Patricks in relation to the mortgages for their real property located in Plainfield,
Illinois.
ANSWER:
Respondent admits the allegations contained in Paragraph 52 of Count IV of the
Complaint.
53. Between May 11, 2010 and August 5, 2010, the Patricks did not
receive any information from Respondent regarding the results of the forensic loan
audit report or any other information advising them of the progress of their case.
ANSWER:
Respondent denies the allegations contained in Paragraph 53 of Count IV of the
Complaint.
54. On or before August 5, 2010, Mr. Patrick telephoned
Respondent's office requesting the status of the audit. On that date, Kellie
Reynolds ("Reynolds"), an associate attorney at Respondent's firm, who had
received Mr. Patrick's message, sent an email to Respondent requesting "some
direction as to the next step for this audit" because she wanted to be informed
prior to returning Mr. Patrick's call. Respondent received Reynolds' email, and
responded by requesting that Reynolds meet with him the following Monday,
August 9, 2010 to discuss the audit.
26
ANSWER:
Respondent admits the allegations contained in Paragraph 54 of Count IV of the
Complaint, and further answering states that Kellie Reynolds was a supervising
attorney and not merely an associate.
55. On or about August 5, 2010, Reynolds sent an email to the
Patricks advising them that she had recently been assigned their file and that the
audit had been completed. Reynolds stated she would provide them with more
information after meeting with Respondent the following Monday to discuss their
strategy and next action to be taken on their case.
ANSWER:
Respondent admits the allegations contained in Paragraph 55 of Count IV of the
Complaint.
56. Respondent did not meet with Reynolds the following Monday,
August 9, 2010, to discuss the status of the Patricks' audit.
ANSWER:
Respondent neither admits nor denies the allegations contained in
Paragraph 56 of Count IV of the Complaint due to insufficient knowledge and
demands strict proof thereof.
57. On or about August 12, 2010, Reynolds sent another email to
Respondent requesting that he contact the Patricks regarding the status of their
audit. Respondent received the email, but did not reply to Reynolds' email or
telephone the Patricks.
27
ANSWER:
Respondent neither admits nor denies the allegations contained in Paragraph 57
of Count IV of the Complaint due to insufficient knowledge.
58. On or about August 25, 2010, Reynolds sent another email to
Respondent requesting that he contact the Patricks to discuss the audit. Reynolds
explained to Respondent that Mr. Patrick was upset and wanted a return call.
Respondent received Reynolds' email shortly after it was sent. Reynolds also
emailed Mr. Patrick and explained that, although she was assigned to his file, she
was not processing or reviewing forensic loan audits. She explained that she left a
message for Respondent and his assistant, "Tony," to call Mr. Patrick as soon as
possible to discuss the audit.
ANSWER:
Respondent admits the allegations contained in Paragraph 58 of Count IV of the
Complaint.
59. In the evening of August 25, 2010, Reynolds sent a second email
to Respondent stating that she didn't have any records relating to the
Patricks' audit. She requested that Respondent look into the matter and
contact Mr. Patrick. Respondent received Reynolds' email and replied to
Reynolds by stating the following, "[t]he audit was completed, henrcvd [sic] a
copy and negotiations are in full swing."
28
ANSWER:
Respondent admits the allegations contained in Paragraph 59 of Count
IV of the Complaint.
60. Respondent's statement to Reynolds that "negotiations are in full
swing" was false and was intended to mislead Reynolds and the Patricks.
Respondent knew that the statement was false because Respondent had not
entered into any negotiations with the Patricks' lender or proceeded in any manner
since receiving the forensic audit report from Certified Forensic Loan Auditors, LLC.
ANSWER:
Respondent denies the allegations contained in Paragraph 60 of Count IV of the
Complaint.
61. Between approximately August 25, 2010 and August 30, 2010,
Mr. Patrick continued to attempt to speak with Respondent regarding the status of
the audit. Respondent received Mr. Patrick's messages, but did not respond to Mr.
Patrick.
ANSWER:
Respondent denies the allegations contained in Paragraph 61 of Count IV of the
Complaint.
62. On or about August 30, 20 I 0, Reynolds sent the following email to
Respondent:
"Mr. Patrick is still waiting from last week for a return call from you.
29
I return all of his voice and emails, but I am not a substitute whena client specifically wants to talk to you. Thank you!"
Respondent received Reynolds' email and replied to Reynolds' email by stating,
"(h]e is at top of list for calls."
ANSWER:
Respondent admits the allegations contained in Paragraph 62 of Count IV of the
Complaint.
63. On or about August 30, 201 0, Reynolds sent an email to Mr. Patrick
and attached a copy of the forensic loan audit report. She also explained that
she had left "an aggressive message" for Respondent to contact him
immediately. She asked that Mr. Patrick contact her if he did not receive a call
from Respondent by the next day. Shortly thereafter, the Patricks' file was
reassigned to Susan Fallon, another associate attorney in Respondent's law firm.
ANSWER:
Respondent admits the allegations contained in Paragraph 63 of Count IV of
the Complaint.
64. On or about September 2, 20 I 0, Respondent sent a 'Demand and
Notice of Rescission" letter to Encore Credit Corporation and Mortgage Direct, Inc.,
the Patricks' original mortgagor.
ANSWER:
Respondent admits the allegations contained in Paragraph 64 of Count IV of the
Complaint.
30
65. On or about October 21, 20 I 0, James Brody ("Brody") from
American Mortgage Law Group, P.C., counsel for Mortgage Direct, Inc., sent a
letter to Respondent denying and rejecting the bases and validity for the purported
rescission primarily because Mortgage Direct, Inc. transferred the loan prior to the
first payment and therefore never serviced the loan. Respondent received Brody's
letter shortly after it was sent.
ANSWER:
Respondent admits the allegations contained in Paragraph 65 of Count IV of the
Complaint.
66. On or about January 13, 2011, EMC Mortgage Corporation
("EMC"), which had become the mortgage servicer for the Patricks' loan, provided
certain documentation regarding the Patricks' mortgage to Respondent.
ANSWER:
Respondent admits the allegations contained in Paragraph 66 of Count IV of
the Complaint, as communications between EMC and Fish Brydges had
been ongoing.
67. At no time after the receipt of the documentation from EMC did
Respondent, or anyone acting at his direction, take any further action on behalf of
the Patricks.
ANSWER:
Respondent denies the allegation contained in Paragraph 67 of Count IV of the
Complaint.
31
68. Between approximately September 20 10 and January 2011, the
Patricks continued to call Respondent's office on a weekly basis to check on the
status of their matter. At no time did Respondent respond to the Patricks'
messages. In or about January 2011, the Patricks ceased further automatic debits
to their checking account for the purported "monthly classic retainer" fee payments
of $750. As of that date, the Patricks had paid Respondent a total of $9,500.
ANSWER:
Respondent admits the allegations contained in the first sentence of Paragraph
68 of Count IV of the Complaint. Respondent denies the allegation in the second
sentence and denies the retainer was "purported". Respondent admits the
balance of Paragraph 68 of Count IV of the Complaint.
69. In or about April 2011, the Patricks terminated Respondent's services
and requested a refund of the unearned fees and costs.
ANSWER:
Respondent denies the allegations contained in Paragraph 69 of Count IV of the
Complaint.
70. Respondent did not perform sufficient work and incur sufficient costs
which would entitle him to retain the $9,500 received from the Patricks.
ANSWER:
Respondent denies the allegation contained in Paragraph 70 of Count IV of the
Complaint.
71. As of April 8, 2013, the date on which the Inquiry Panel voted that a
32
complaint be filed in this matter, Respondent had not issued a refund of the
unearned legal fees or costs paid by the Patricks.
ANSWER:
Respondent admits that a refund of payments was not made as alleged in
Paragraph 71 of Count IV of the Complaint. Respondent denies that these fees
were unearned.
72. By the reason of the conduct outlined above, Respondent has
engaged in the following misconduct:
a. failure to act with reasonable diligence and promptness inrepresenting a client, in violation of Rule 1.3 of the IllinoisRules of Professional Conduct;
b. failure to reasonably consult with the client about themeans by which the client's objectives are to beaccomplished, failure to keep the client reasonablyinformed about the status of a matter and failure to
promptly comply with reasonable requests for information,in violation of Rule l.4(a)(2-4) of the Illinois Rules ofProfessional Conduct;
c. failure to explain a matter to the extent reasonably necessaryto permit the client to make informed decision s regarding therepresentation, in violation of Rule I .4(b) of the Illinois Rulesof Professional Conduct;
d. making an agreement for, charging and collecting anunreasonable fee, in violation of Rule I .5(a) of the IllinoisRules of Professional Conduct;
e. failing to hold property of clients in the lawyer's possession inconnection with a representation separate from the lawyer'sown property, in violation of Rule 1.15(a) of the Illinois Rulesof Professional Conduct;
f. failing to deposit in a client trust account funds received to
33
secure payment of legal fees and expenses, in violation ofRule 1.15(c) of the Illinois Rules of Professional Conduct;
upon termination of representation, failure to refund anyadvance payment of fee or expense that has not beenearned or incurred , in violation of Rule 1.16(d) of the IllinoisRules of Professional Conduct;
h. failure to make reasonable efforts to expedite litigationconsistent with the interests of the client, in violation of Rule3.2 of the Illinois Rules of Professional Conduct;
i. conduct involving dishonesty, fraud, deceit ormisrepresentation, in violation of Rule 8.4(c) of the IllinoisRules of Professional Conduct;
j. conduct prejudicial to the administration of justice, in violationof Rule 8.4(d) of the Illinois Rules of Professional Conduct;and
k. conduct which tends to defeat the administration of
justice or bring the courts or legal profession intodisrepute
ANSWER:
Respondent denies the allegations contained in Paragraph 72 (a) through (k) of
Count IV of the Complaint.
COUNT V
(Lack of diligence, improper and excessive fee, failure to communicateand failure to return an unearned fee -Ralph Borushek)
73. On or about February 24, 2010, Ralph Borushek ("Borushek") received
a letter on Respondent's letterhead advising Borushek that he may qualify for a
reduction of the principal balance owed on his real property located on Kenilworth
Avenue in Wilmette, Illinois. The letter directed Borushek to call to "speak to one of
34
our representatives and see if you can save $464,604.41."
ANSWER:
Respondent admits that an unauthorized letter was sent that Respondent had
no knowledge of sent by someone Respondent has come to learn was Charlie
"Chuck" Mangold as alleged in Paragraph 73 of Count V of the Complaint.
74. Within a few days of receiving Respondent's letter as described in
paragraph 73, above, Borushek telephoned Respondent's office at the number
provided on the letterhead and spoke with an individual who identified himself as
"Chuck." Borushek explained to "Chuck" that he had two mortgages on his property
and was seeking to have the principal, interest, or both reduced . "Chuck" requested
that Borushek send copies of his closing documents and tax returns to Respondent for
review.
ANSWER:
Respondent denies that the telephone number on the letterhead was his
telephone number as alleged in the first sentence of Paragraph 74 of Count V of
the Complaint. Respondent neither admits nor denies the allegations in the
remainder of the paragraph due to insufficient knowledge.
75. On or about March 3, 2010, Borushek sent a letter to "Chuck" via
facsimile at the number provided on Respondent's letterhead. Borushek attached
copies of his closing and tax documents, as previously requested by "Chuck."
Borushek further provided "Chuck" with a telephone number at which he could be
reached during the day.
35
ANSWER:
Respondent neither admits nor denies due to insufficient knowledge as alleged
in Paragraph 75 of Count V of the Complaint due to insufficient knowledge and
demands strict proof thereof.
76. On or about April 6, 2010, Respondent agreed to represent Borushek in
a predatory lending complaint against his mortgagor. On that same date, Borushek
signed an attorney-client agreement and paid Respondent his requested fee of
$2,500 for "upfront costs of litigation." Borushek also agreed to pay Respondent a
purported "monthly classic retainer" of $500.
ANSWER:
Respondent admits. Mr. Borushek contacted his Hinsdale office and said he
wanted to come in and discuss his case. It was then Respondent found out he
had been in contact with a "Chuck Wilson" whom Respondent had no idea
who that was as alleged in Paragraph 76 of Count V of the Complaint.
Respondent explained his entire process and informed him clearly that
regardless of what he may have heard or read that reality was reductions
would be sought through restructuring.
77. At no time after April 6, 2010, did Borushek personally meet or
speak with Respondent to discuss his case, review his records and/or discuss his
legal objectives, nor did Borushek receive any further correspondence from
Respondent.
36
ANSWER:
Respondent denies the allegations contained in Paragraph 77 of Count V of the
Complaint
78. On or about May 15, 2010, Borushek sent a check in the amount of
$500 to Respondent representing the payment of the "monthly classic retainer" for that
month.
ANSWER:
Respondent admits a payment was made but it was not a monthly retainer as
alleged in Paragraph 78 of Count V of the Complaint and further answering states
$3000 was the entire fee.
79. Beginning in mid-May 2010, Borushek began making telephone calls
to Respondent's office and leaving messages requesting that Respondent or
"Chuck" contact him regarding the status of his case. Respondent received
Borushek's messages, but at no time were Borushek's calls returned.
ANSWER:
Respondent denies the allegations contained in Paragraph 79 of Count V of the
Complaint
80. On or about June 10, 2010, Borushek sent an email to "Chuck"
complaining about what he considered to be Respondent's lack of communication,
and requesting that someone telephone him or he would request a refund of his legal
fees. At no time did Borushek receive a response to his June 10,2010 email.
37
ANSWER:
Respondent neither admits nor denies the allegations contained in Paragraph 80
of Count V of the Complaint due to insufficient knowledge, but demands strict
proof thereof.
81. On or about June 17, 2010, Borushek sent a letter to Respondent
complaining about what he considered to be Respondent's and "Chuck's" lack of
communication, and requesting that someone telephone him or he would request a
refund of his legal fees. Respondent received Borushek's letter shortly thereafter. At
no time did Respondent respond to Borushek's June 17,2010 letter.
ANSWER:
Respondent denies the allegations contained in Paragraph 81 of Count V of the
Complaint.
82. On or about September 8, 2010, Madeleine Podesta ("Podesta"), an
attorney in Respondent's law firm, sent an email to Borushek in which she attached
a forensic audit report, dated May 13, 2010, relating to Borushek's first and second
mortgage s. Podesta requested that Borushek review the report and contact her with
any questions, or, if he didn't have any questions, she would contact him in a few
weeks.
ANSWER:
Respondent admits the allegations contained in Paragraph 82 of Count V of the
Complaint.
38
83. After reviewing the forensic audit report, Borushek discovered that
much of the documentation which he had previously provided to Respondent was
listed as missing. Borushek telephoned Respondent's office and left messages
requesting that someone contact him to discuss the matter, but did not receive a
response to his messages.
ANSWER:
Respondent neither admits nor denies the allegations contained in the first
sentence of Paragraph 83 of Count V of the Complaint due to insufficient
knowledge. Respondent denies the allegations contained in the second
sentence of Paragraph 83 of Count V of the Complaint.
84. On or about January 10, 2011, Borushek sent an email to Podesta
requesting that she forward the email to Respondent. In his email, Borushek
complained that the forensic audit report provided to him indicated much of his
mortgage information was missing or incomplete, even though he had previously
provided Respondent with all requested documentation. Borushek offered to pay
$500 for the cost of the report, but requested a refund of the remaining $2,500 paid
to Respondent. Podesta responded to Borushek by stating that she had forwarded
his email to Respondent and the office manager , and that one of them would
contact Borushek. Respondent received Borushek's January 10, 2011 email as
forwarded from Podesta. At no time did Respondent, nor anyone on his behalf,
respond to Borushek's email.
ANSWER:
Respondent admits that an email was sent as alleged in Paragraph 84 of Count V
39
of the Complaint, but denies that no contact was made.
85. On or about January 14, 2011, Respondent, or someone acting at
his direction, sent a letter to ING Direct, one of Borushek's mortgage lenders,
requesting a modification of the terms of Borushek's current loan.
ANSWER:
Respondent admits the allegations contained in Paragraph 85 of Count V of the
Complaint.
86. On or about February 9, 2011, ING Direct responded to
Respondent's letter and informed him that no modification could be considered or
processed as no authorization from the mortgage holder (Borushek) had been
enclosed with the letter. Respondent received ING Direct's correspondence
shortly after it was sent.
ANSWER:
Respondent admits the allegations contained in Paragraph 86 of Count V of
the Complaint
87. At no time did Respondent contact Borushek and request that he
complete an authorization order for ING Direct to communicate directly with
Respondent.
ANSWER:
Respondent denies the allegations contained in Paragraph 87 of Count V of the
Complaint.
88. On or about February 23, 2011, Borushek sent an email to
40
Respondent stating that, due to Respondent's failure to respond to Borushek's
previous communications, he had begun to file complaints with different
agencies regarding Respondent's conduct and requested a refund of $2,500.
Respondent received Borushek's email shortly after it was sent. At no time did
Respondent respond to Borushek's email.
ANSWER:
Respondent neither admits nor denies the allegations contained in Paragraph
88 of Count V of the Complaint.
89. Respondent did not perform sufficient work or incur sufficient costs
which would entitle him to retain the $3,000 received from Borushek.
ANSWER:
Respondent denies the allegations contained in Paragraph 89 of Count V of the
Complaint.
90. As of April 8, 2013, the date on which the Inquiry Panel voted that a
complaint be filed in this matter, Respondent had not issued a refund of the
unearned legal fees or costs paid by Borushek.
ANSWER:
Respondent admits that refunds of payments were not made as alleged in
Paragraph 90 of Count V of the Complaint. Respondent denies that these fees
were unearned.
91. By reason of the conduct outlined above, Respondent has
engaged in the following misconduct:
41
a. failure to act with reasonable diligence andpromptness in representing a client, in violation ofRule 1.3 of the Illinois Rules of Professional Conduct;
b. failure to reasonably consult with the client aboutthe means by which the client's objectives are tobe accomplished, failure to keep the clientreasonably informed about the status of a matterand failure to promptly comply with reasonablerequests for information, in violation of Rule l.4(a)(2-4) of the Illinois Rules of Professional Conduct;
c. failure to explain a matter to the extent reasonablynecessary to permit the client to make informeddecisions regarding the representation, in violation ofRule I .4(b) of the Illinois Rules of ProfessionalConduct;
d. making an agreement for, charging and collecting anunreasonable fee, in violation of Rule I .5(a) of theIllinois Rules of Professional Conduct;
e. failing to hold property of clients in the lawyer 'spossession in connection with a representationseparate from the lawyer's own property , in violationof Rule I.I S(a) of the Illinois Rules of ProfessionalConduct;
f. failing to deposit in a client trust account fundsreceived to secure payment of legal fees and expenses,in violation of Rule 1.15(c) of the Illinois Rules ofProfessional Conduct;
g. upon termination of representation, failure to refund anyadvance payment of fee or expense that has not beenearned or incurred, in violation of Rule 1 .16(d) of theIllinois Rules of Professional Conduct;
h. conduct involving dishonesty, fraud, deceit ormisrepresentation, in violation of Rule 8.4(c) of theIllinois Rules of Professional Conduct;
42
i. conduct prejudicial to the administration of justice, inviolation of Rule 8.4(d) of the Illinois Rules ofProfessional Conduct; and
j. conduct which tends to defeat the administration ofjustice or bring the courts or legal profession intodisrepute.
ANSWER:
Respondent denies the allegations contained in Paragraph 91 (a)
through (j) of Count V of the Complaint.
COUNT VI
(Lack ofdiligence, failure to communicate and failure lo re/urn an unearnedfee - Franklin &
Carol Treacle)
92. On or about December 10, 2010, Carol Treace ("Treace"), an
Illinois licensed, real estate broker, consulted with Louis Brydges ("Brydges"),
Respondent's law partner at that time, regarding a foreclosure action then
pending against commercial property that Treace and her husband, Franklin,
owned and which housed their real estate office. The case was entitled MB
Financial Bank, N.A., as successor in interest to INBank, formerly known as Interstate
Bank v. Franklin and Carol Treace el al., case number 10 CH 18696
ANSWER:
Respondent admits the allegations contained in Paragraph 92 of Count VI of the
Complaint.
93. On or about December 10, 2010, Brydges and Respondent agreed to
represent the Treaces for an initial fee of $7,500, based upon an hourly rate of
43
$300, which was to be paid in installments and in full by March 28, 2011.
ANSWER:
Respondent denies the allegation in Paragraph 93 of Count VI of the Complaint
and further answering, states Respondent was not aware of the representation
agreement at the time it was made, prepared or agreed upon.
94. At the time Respondent agreed to represent the Treaces, the
Treaces explained that they wanted affirmative defenses and/or a counterclaim
to be filed on their behalf in case number 10CH 18696.
ANSWER:
Respondent neither admits nor denies the allegations in Paragraph 94 of
Count VI of the Complaint, due to insufficient knowledge and demands strict
proof, and further answering, states Respondent was not involved in the
case.
95. At no time after December 10, 2010 did Respondent, or anyone
acting at his behalf, contact the Treaces to discuss their case and/or their legal
objectives.
ANSWER:
Respondent neither admits nor denies the allegations contained in Paragraph
95 of Count VI of the Complaint.
96. At no time after December 10, 20I0, did Respondent, or anyone
acting on his behalf, file affirmative defenses or a counterclaim on behalf of the
44
Treaces in case number 10 CH 18696.
ANSWER:
Respondent admits the allegations contained in Paragraph 96 of Count VI of
the Complaint.
97. On or about January 6, 2011, Respondent caused to be filed his
appearance in case number 10 CH 18696. On January 27, 2011, Respondent
caused to be filed an answer to the complaint on behalf of the Treaces. The
answer Respondent filed did not contain any affirmative defenses or any
counterclaims as requested by the Treaces.
ANSWER:
Respondent neither admits nor denies the allegations due to insufficient
knowledge and further answering, states that he has no knowledge of the
Treaces discussion of wants and or desires made to Mr. Brydges as alleged
in Paragraph 97 of Count VI of the Complaint
98. As of March 24, 20 11, the Treaces had paid Respondent the entire
$7,500 he had requested to handle their case pursuant to their agreement.
ANSWER:
Respondent denies the allegations contained in Paragraph 98 of Count VI of the
Complaint and further answering, states that he has no firm records indicating
any payments other than those made in December 2010 and January 2011
totaling $3500.
45
99. On or about June 21, 2011 counsel for MB Financial Bank filed a
motion for summary judgment in case number 10 CH 18696. On or about June 29,
201 1, the Court set a briefing schedule on the motion. On July 27, 2011,
Respondent filed his response to the motion for summary judgment on behalf of the
Treaces in case number 10 CH 18696.
ANSWER:
Respondent admits that the firm filed a response to the Motion for Summary
Judgment and admits the balance of the allegations contained in Paragraph 99
of Count VI of the Complaint
100. On or about August 1, 2011, the Treaces terminated Respondent
services. On or about August 31, 2011, Respondent caused to be filed his motion
to withdraw from case number 10 CH 18696.
ANSWER:
Respondent admits the allegations contained in the first sentence of Paragraph
100 of Count VI of the Complaint and denies the allegations contained in the
second sentence of Paragraph 100 of Count VI of the Complaint.
101. On or about September 29, 2011, Treace sent a letter to
Respondent in which she requested an accounting of the time expended in relation
to the Treaces' foreclosure matter and a refund of the unearned portion of the fees
paid to his firm. Respondent received Treace's letter shortly thereafter. At no time
did Respondent respond to Treace's correspondence.
ANSWER:
46
Respondent neither admits nor denies the allegations contained in
Paragraph 101 of Count VI of the Complaint, and further answering,
states that the client was advised at some point that per her
direction that the file was transferred to Brydges and all fees would
need to be discussed with him.
102. On or about October 21, 2011, the Court entered an order
granting summary judgment in case number 10CH 18696.
ANSWER:
Respondent neither admits nor denies the allegations contained in
Paragraph 102 of Count VI of the Complaint due to insufficient knowledge,
and demands strict proof thereof..
103. Respondent did not perform sufficient work or incur sufficient costs
which would entitle him to retain the $7,500 received from the Treaces.
ANSWER:
Respondent neither admits nor denies the allegations contained in
Paragraph 102 of Count VI of the Complaint due to insufficient knowledge,
and demands strict proof thereof..
104. As of April 8, 2013, the date on which the Inquiry Panel voted that a
complaint be filed in this matter, Respondent had not issued a refund of the
unearned legal fees or costs paid by the Treaces.
ANSWER:
Respondent admits that he did not return "earned" fees, nor did Respondent
47
return fees he has no record of receiving as alleged in Paragraph 104 of
Count VI of the Complaint.
105. By the reason of the conduct outlined above, Respondent has
engaged in the following misconduct:
a. failure to act with reasonable diligence andpromptness in representing a client, in violation ofRule 1.3 of the Illinois Rules of Professional Conduct;
b. failure to reasonably consult with the client aboutthe means by which the client's objectives are to beaccomplished, failure to keep the client reasonablyinformed about the status of a matter and failure to
promptly comply with reasonable requests forinformation , in violation of Rule 1.4(a)(2-4) of theIllinois Rules of Professional Conduct;
c. failure to explain a matter to the extent reasonablynecessary to permit the client to make informeddecisions regarding the representation, in violation ofRule I .4(b) of the Illinois Rules of ProfessionalConduct;
d. upon termination of representation, failure to refundany advance payment of fee or expense that has notbeen earned or incurred, in violation of Rule 1.16(d)of the Illinois Rules of Professional Conduct;
e. failure to make reasonable efforts to expeditelitigation consistent with the interests of the client, inviolation of Rule 3.2 of the Illinois Rules of
Professional Conduct;
conduct prejudicial to the administration of justice, inviolation of Rule 8.4(d) of the 2010 Illinois Rules ofProfessional Conduct; and
48
g. conduct which tends to defeat the administration ofjustice or bring the courts or legal profession intodisrepute.
ANSWER:
Respondent denies the allegations contained in Paragraph 105 (a)
through (g) of Count VI of the Complaint.
COUNT VII
(Lack of diligence, improper and excessive fee, failure to communicate andfailure to return an unearned fee - Tracy Stiggle)
106. On or about April 21, 2011, Tracy Striggle ("Striggle") consulted with
Brydges regarding her options to reduce monthly payments on income property she
owed on West Fullerton Avenue in Chicago, Illinois ("the Fullerton property"). During
their conversation, Striggle explained to Brydges that she was seeking to reduce the
principal balance on the Fullerton property. Brydges also spoke with Striggle about
her and her husband's primary residence, located on West Medill Avenue in
Chicago, Illinois ("the Medill property").
ANSWER:
Respondent neither admits nor denies due to insufficient knowledge as alleged
in Paragraph 106 of Count VII of the Complaint.
107. On or about May 22, 2011, Respondent agreed to represent Striggle
in a mortgage foreclosure action in relation to the two properties. On that same
date, Striggle signed an attorney-client agreement and paid Respondent his
requested fee of $2,000 for the cost of a forensic loan audit to be performed on
49
both properties. Striggle also agreed to pay Respondent a purported "monthly
classic retainer" of $650 for each property. Finally, if Respondent obtained a
reduction in the principal amounts of either loan, Striggle agreed to pay
Respondent a contingency fee equaling up to 20% of the total amount of any
reduction. Striggle paid Respondent a total of $2,000 on May 22, 2011, and began
paying the purported "monthly classic retainer fee" of $650 for each property in
June 2011.
ANSWER:
Respondent denies the retainer fee was "purported", and admits the balance of
the allegations contained in Paragraph 107 of Count VII of the Complaint.
108. During the course of Striggle's representation by Respondent, her
files were assigned to at least three different associates in Respondent's law
firm. Respondent initially assigned Striggle's matters to Wendy Fawcett
("Fawcett").
ANSWER:
Respondent admits multiple attorneys were assigned to work on the cases,
once per her request, as alleged in Paragraph 108 of Count VII of the
Complaint.
109. On or prior to June 30, 2011, representatives from ING, Striggle's
mortgagor for the Fullerton property, attempted to contact Fawcett on at least
three occasions, but their calls were not returned. On or about June 30, 2011, a
representative from ING contacted Striggle to inform her of ING's attempts to
50
contact Fawcett without success. On or about that same date, Striggle's husband,
Brady Spangler ("Spangler"), emailed Fawcett and requested a status of the matter.
Fawcett responded with an email containing numerous questions previously
addressed by Striggle in her meetings with Brydges and Respondent, including but
not limited to the identity of mortgagors on each property, rental incomes
received, in which property they resided, and what services they were seeking from
the firm in relation to the properties.
ANSWER:
Respondent neither admits nor denies the allegations contained in Paragraph
109 of Count VII of the Complaint due to insufficient knowledge, and demands
strict proof thereof.
110. At no time did Respondent or anyone acting on his behalf
further Striggle's interests by negotiating with her mortgagors to reduce the principal
balances of her properties.
ANSWER:
Respondent denies the allegation contained in Paragraph 110 of Count VII of the
Complaint.
111. On or about September 27, 2011, attorneys on behalf of ING
caused to be filed a foreclosure action against Striggle in relation to the Fullerton
property in the matter ING Bank v. Tracy Striggle et ai, case number 2011 CH
33806.
ANSWER:
51
Respondent admits the allegations contained in Paragraph 111 of Count VII of
the Complaint
112. At no time did Respondent file an appearance in case number 201 1
CH 33806 or proceed in any other manner on behalf of Striggle.
ANSWER:
Respondent admits an appearance was not filed, as alleged in Paragraph 112 of
Count VII of the Complaint and further answering denies that Respondent did
not proceed on the matter.
113. In or about October 2011, due to her dissatisfaction with the
amount of communication received from Fawcett, Striggle requested that a
different attorney be assigned to her matters. Respondent assigned John Blatt
("Blatt"), another associate attorney employed by Respondent's law firm, to
Striggle's matters.
ANSWER:
Respondent admits the allegations contained in Paragraph 113 of Count VII
of the Complaint.
114. At no time between October 2011 and February 2012, did Blatt
further Striggle's interests by negotiating with her mortgagors to reduce the
principal balances on her properties.
ANSWER:
Respondent neither admits nor denies the allegation contained in Paragraph
114 of Count VII of the Complaint.
52
115. On or about February 8, 2012, counsel on behalf of Wells Fargo,
Striggle's mortgagor for the Medill property, caused to be filed a foreclosure
action against her in the Circuit Court of Cook County in the matter Wells Fargo,
N.A. v. Tracy L. Striggle, et al., case number 12 CH 4356. Striggle received
notice of the complaint shortly thereafter and advised Blatt. At that time, Striggle
and Spangler advised Blatt that they wished to proceed with a short sale on the
Medill property.
ANSWER:
Respondent admits the allegations contained in the first sentence of
Paragraph 115 of Count VII of the Complaint; Respondent neither admits nor
denies the allegations contained in the second and third sentences of
Paragraph 115 due to insufficient knowledge.
116. On or about February 24, 2012, Spangler sent an email to Blatt
requesting that he file a response in case number 12 CH 4356. Blatt, acting at
Respondent's direction, responded by stating, "The complaint itself may deserve
a response, but that time is not upon us yet. our litigation strategy is designed to
maximize your time in possession so we can dispense with the property on the
most favorable grounds to you both ..."
ANSWER:
Respondent denies that Blatt acted at his direction and admits the
balance of the allegations contained in Paragraph 116 of Count VII of the
Complaint.
53
117. At no time between February 24, 2012 and April 10, 2012 did
Respondent, or anyone acting at his direction, file a responsive pleading or
proceed in any manner on behalf of Striggle in case number 12 CH 4356.
ANSWER:
Respondent admits the firm did not file a responsive pleading, and denies that
he did not proceed on the matter, as alleged in Paragraph 117 of Count VII of the
Complaint.
118. In or about the beginning of April 2012, Striggle sent an email to
Blatt requesting the status of her cases and an explanation as to how the monthly
fees she was paying were being utilized. Striggle expressed her dissatisfaction with
lack of communication and hesitation to continue to pay $650 per month for each
property without knowing how the funds were being utilized . Blatt received
Striggle's email shortly after it was sent, but did not reply to her email.
ANSWER:
Respondent neither admits nor denies the allegations contained in Paragraph
118 of Count VII of the Complaint due to insufficient knowledge and demands
strict proof thereof.
119. On or about April 9, 2012, Spangler sent a copy of Striggle's April
2012 email to Adam Ackerman, a non-attorney employee at Respondent's office
. Later that day, Araceli Nevarez ("Nevarez"), a legal assistant in Respondent's
office, sent an email to Spangler advising him that Blatt was no longer with the
54
firm and that Respondent has reassigned Striggle's files to Lance Johnson, a
supervising attorney in Respondent's law firm.
ANSWER:
Respondent admits the allegation in Paragraph 119 of Count VII of the
Complaint..
120. On or about April 10, 2012, Respondent caused to be filed his
appearance in case number 12 CH 4356, and Stephanie Bowman , an associate
in Respondent's law firm, caused to be filed a motion for an extension of time
to answer or plead on behalf of Striggle in case number 12 CH 4356. At no
time did Respondent, or anyone acting on his behalf, advise Striggle or Spangler
of his or his firm " action s in case number 12 CH 4356.
ANSWER:
Respondent admits the allegation contained in the first sentence and denies the
allegations contained in the second sentence of Paragraph 120 of Count VII of
the Complaint
121. On or about April 13, 2012, Spangler sent a response to Nevarez
advising her that he and Striggle wanted to terminate Respondent's services and
requested that the firm cease all future debits of the monthly fee payment from
their checking account. Nevarez received Spangle's email shortly after it was
sent. As of that date, Striggle and Spangler had paid Respondent
approximately $13,000 in legal fees.
ANSWER;
55
Respondent admits the allegations contained in Paragraph 121 of Count VII
of the Complaint
122. At no time after receiving Spangler's April 13, 2012 email did
Respondent, or anyone on his behalf, advise Striggle or Spangler of the status
of case number 12 CH 4356 or how they should proceed in order to protect their
interests in that matter.
ANSWER:
Respondent denies the allegations contained in Paragraph 122 of Count VII of
the Complaint.
123. On or about May 14, 2012, the Court entered a judgment of
foreclosure against Striggle in case number 2011 CH 33806.
ANSWER;
Respondent admits the allegations contained in Paragraph 123 of Count VII
of the Complaint.
124. On or about July 3, 2012, Striggle filed a charge with the Illinois
Attorney Registration and Disciplinary Commission requesting an investigation of
Respondent's conduct and a refund of the unearned fees and costs paid to
Respondent.
ANSWER:
Respondent admits the allegations contained in Paragraph 124 of Count VII
of the Complaint.
125. On or about September 24, 2012, the Court entered a judgment of
56
foreclosure against Striggle in case number 12 CH 4356.
ANSWER:
Respondent admits the allegations contained in Paragraph 125 of Count VII of
the Complaint.
126. On or after September 24, 2012, Striggle learned from a friend that
judgments of foreclosure had been entered against her on the Fullerton and
Medill properties and that the properties were scheduled to be sold at a
sheriffs sale. Shortly thereafter, she retained new counsel to represent her in
case numbers 2011 CH 33806 and 12 CH 4356.
ANSWER:
Respondent neither admits nor denies the allegations contained in
Paragraph 126 of Count VII of the Complaint due to insufficient knowledge
and demands strict proof thereof.
127. Respondent did not perform sufficient work or incur sufficient costs
which would entitle him to retain the $15,000, including costs, received from Striggle
and Spangler.
ANSWER:
Respondent denies the allegations contained in Paragraph 127 of Count VII of the
Complaint.
128. As of April 8, 2013, the date on which the Inquiry Panel voted that
a complaint be filed in this matter, Respondent had not issued a refund of the
57
unearned legal fees or costs paid by Striggle and Spangler.
ANSWER:
Respondent admits that refunds of payments were not made as alleged in
Paragraph 128 of Count VII of the Complaint. Respondent denies that these fees
were unearned.
129. By the reason of the conduct outlined above, Respondent has
engaged in the following misconduct:
a. failure to act with reasonable diligence and promptnessin representing a client, in violation of Rule 1.3 of theIllinois Rules of Professional Conduct;
b. failure to reasonably consult with the client aboutthe means by which the client's objectives are to beaccomplished, failure to keep the client reasonablyinformed about the status of a matter and failure to
promptly comply with reasonable requests forinformation, in violation of Rule 1.4(a)(2-4) of theIllinois Rules of Professional Conduct;
c. failure to explain a matter to the extent reasonably ynecessary to permit the client to make informeddecisions regarding the representation, in violation ofRule 1.4(b) of the Illinois Rules of ProfessionalConduct;
d. making an agreement for, charging and collecting anunreasonable fee, in violation of Rule I .5(a) of theIllinois Rules of Professional Conduct;
e. failing to hold property of clients in the lawyer'spossession in connection with a representationseparate from the lawyer's own property, in violation ofRule 1.1S(a) of the Illinois Rules of ProfessionalConduct;
f. failing to deposit in a client trust account funds
58
of
bring
received to secure payment of legal fees andexpenses, in violation of Rule I.I 5(c) of the IllinoisRules of Professional Conduct;
g. upon termination of representation, failure to refund anyadvance payment of fee or expense that has not beenearned or incurred, in violation of Rule 1.16(d) of theIllinois Rules of Professional Conduct;
h. failure to make reasonable efforts to expedite litigationconsistent with the interests of the client, in violation ofRule 3.2 of the Illinois Rules of Professional Conduct;
i. conduct involving dishonesty, fraud, deceit ormisrepresentation, in violation of Rule 8.4(c) of theIllinois Rules of Professional Conduct;
j. conduct prejudicial to the administration of justice, in violation
Rule 8.4(d) of the Illinois Rules of Professional Conduct; and
k. conduct which tends to defeat the administration of justice or
the courts or legal profession into disrepute.
ANSWER:
Respondent denies the allegations contained in Paragraph 129 (a) through (k) of
Count VII of the Complaint.
COUNTVIII
(Lack ofdiligence, improper and excessive fee,/alUre to communicate and failurere to return an
Unearned fee - William and Mary Kulikowski)
130. On or about November 28, 2008, William Kulikowski ("Kulikowski") was
notified by his mortgagor, Countrywide Home Loans ("Countrywide"), that his
59
home loan was delinquent and had been referred to Countrywide's Foreclosure
Management Committee for review. Kulikowski had been unemployed since March
2007, and was using the proceeds from his 401k plan to pay his mortgage.
ANSWER:
Respondent neither admits nor denies the allegations contained in Paragraph
130 of Count VIII of the Complaint due to insufficient knowledge.
131. On or about December 4, 2008, attorneys on behalf of Countrywide
caused to be filed a foreclosure action in McHenry County against Kulikowski
and his wife, Mary, in the matter Countrywide Home Loans Servicing LP v. William
Kulikowski et ai, case number 08 CH2255.
ANSWER:
Respondent neither admits nor denies the allegations contained in Paragraph
131 of Count VIII of the Complaint due to insufficient knowledge.
132. Over the next several months, Kulikowski pursued various options
to attempt to prevent the foreclosure and sale of their home, including working with
a mortgage insurance company and applying for a loan modification through the
Home Affordable Modification Program ("HAMP").
ANSWER:
Respondent neither admits nor denies the allegations contained in Paragraph
132 of Count VIII of the Complaint due to insufficient knowledge.
133. On or about March 5, 2009, pursuant to Countrywide's motion, the
Court entered a default judgment against Kulikowski in case number 08 CH 2255.
60
ANSWER:
Respondent neither admits nor denies the allegations contained in Paragraph
133 of Count VIII of the Complaint due to insufficient knowledge.
134. On or about July 14, 2009, Bank of America, the banking institution
that purchased Countrywide and acquired its home loans, sent a letter to
Kulikowski advising him that his loan modification had been approved by their
institution and provided him with a new payment schedule.
ANSWER:
Respondent neither admits nor denies the allegations contained in Paragraph
134 of Count VIII of the Complaint due to insufficient knowledge.
135. On or about October 9, 2009, Bank of America sent a letter to
Kulikowski advising him that they would provide him with a more affordable monthly
mortgage payment amount of $644.80 under HAMP and offered a three-month trial
period. After Kulikowski received the October 9, 2009 letter from Bank of America,
he made the first reduced monthly mortgage payment and continued to make the
reduced payments.
ANSWER:
Respondent neither admits nor denies the allegations contained in Paragraph
135 of Count VIII of the Complaint due to insufficient knowledge.
136. On or about November 12, 2009, Countrywide caused the default
order in case number 08 CH 2255 to be vacated and the case to be dismissed.
ANSWER:
61
Respondent neither admits nor denies the allegations contained in Paragraph
136 of Count VIII of the Complaint due to insufficient knowledge.
137. On March 31, 2010, Bank of America sent a letter to Kulikowski
advising that he had qualified for a permanent modification of his home loan
under HAMP and further advising him to continue making the reduced monthly
mortgage payments.
ANSWER:
Respondent neither admits nor denies the allegations contained in Paragraph
137 of Count VIII of the Complaint due to insufficient knowledge.
138. After this point, Kulikowski continued to have questions and
concerns regarding the terms of the modified mortgage. After hearing several
radio commercials advertising Respondent's ability to successfully represent
individuals m home loan modifications, Kulikowski contacted Respondent.
ANSWER:
Respondent neither admits nor denies the allegations contained in Paragraph
138 of Count VIII of the Complaint due to insufficient knowledge.
139. On or about November 10, 2010, Respondent agreed to
represent Kulikowski in defending against any mortgage foreclosure and potential
loan modification. Kulikowski signed an attorney-client agreement and paid
Respondent his requested fee of $1,750 for the cost of a forensic loan audit and
the first month's fee for representation , less a $100 discount. Kulikowski also
62
agreed to pay Respondent a purported "monthly classic retainer" of $850.
Finally, if Respondent obtained a reduction in the principal amount of the
Kulikowski's loan, he agreed to pay Respondent a contingency fee equaling up to
20% of the total amount of any reduction.
ANSWER:
Respondent denies the retainer was "purported" and admits the balance of the
allegations contained in Paragraph 139 of Paragraph VIM of the Complaint.
140 Kulikowski paid Respondent's purported 'Vnonthly classic retainer" by
check until April 2011. From that time until October 2012, the monthly payment was
automatically deducted from Kulikowski's bank account held at Harris Bank.
ANSWER:
Respondent denies the allegations contained in Paragraph 140 of Count VIM of
the Complaint.
141. On or about November 29, 2010, Bank of America sent Kulikowski
a letter advising him that his loan was no longer eligible for HAMP.
ANSWER:
Respondent admits the allegation contained in Paragraph 141 of Count VIM of the
Complaint.
142. On or about December 7, 2010, Respondent assigned Kulikowski's
matter to Jack Levin ("Levin"), an attorney at Respondent's law firm. On or about
that same date, Levin sent a letter to Kulikowski advising him that he would be
representing Kulikowski in relation to the mortgage restructuring.
ANSWER:
63
Respondent admits the allegation contained in Paragraph 142 of Count VIM of the
Complaint.
143. On or about January 4, 2011, Respondent, or someone acting at
his direction, caused a forensic loan audit to be prepared in relation to Kulikowski's
mortgage.
ANSWER:
Respondent admits the allegations contained in Paragraph 143 of Count VIII of
the Complaint
144. On or about January 6, 2011, Levin sent a letter to Bank of America
and Countrywide advising that he was representing Kulikowski in efforts to
negotiate a restructuring of the loan. Levin stated in his correspondence that
Kulikowski would suspend all mortgage payments until the bank agreed to
discuss restructuring and, if restructuring wasn't agreeable, then the results of the
forensic loan audit would be used to file a counterclaim alleging violations of the
Truth in Lending Act in the original terms of the mortgage.
ANSWER:
Respondent admits the allegations contained in Paragraph 144 of Count VIM of
the Complaint.
145. On or about March 31, 2011, Bank of America sent a letter to
Kulikowski stating that his loan was not eligible for modification. On or about April 13,
2011, Kulikowski faxed the March 31, 2011 letter to Levin. Levin received the letter
shortly thereafter.
ANSWER:
64
Respondent admits the allegations contained in Paragraph 145 of Count VIII of
the Complaint.
146. On or about April 18, 2011, Bank of America sent a letter to
Kulikowski advising that the last installment due under the special forbearance
agreement had been credited to his account and that he was current on his home
loan payments. Kulikowski had concerns regarding the content of the letter and
sent a copy of the letter to Levin. Levin received the letter shortly thereafter and
advised Kulikowski that he would take care of the matter.
ANSWER:
Respondent admits the allegations contained in Paragraph 146 of Count VIM of
the Complaint.
147. At no time did Respondent, or anyone acting on his behalf,
correspond with Bank of America after receiving copies of its letters to Kulikowski
dated March 31, 2011 and April 18, 2011.
ANSWER:
Respondent neither admits nor denies the allegations contained in Paragraph 147
of Count VIII due to insufficient knowledge.
148. At no time did Respondent, or anyone acting on his behalf, pursue
any further action on behalf of Kulikowski.
ANSWER:
Respondent denies the allegations contained in Paragraph 148 of Count VIM of
65
the Complaint.
149. On or about July 9, 2012, Kulikowski sent an email to Levin
asking if Bank of America would work with the Kulikowskis on modifying their
loan. Levin suggested that Kulikowski submit a loan modification package to
their lender. On or about July 17, 2012, Kulikowski advised Levin of the name
and contact information of his representative at Bank of America, and requested
that Levin contact Bank of America on his behalf.
ANSWER:
Respondent admits the allegations contained in Paragraph 149 of Count VIM of
the Complaint.
150. On or about July 19, 2012, Levin sent an email to Kulikowski
requesting that he contact Levin after receiving the loan modification package from
Bank of America.
ANSWER:
Respondent admits the allegations contained in Paragraph 150 of Count VIM of
the Complaint.
151. Shortly after receiving the loan modification package from Levin,
Kulikowski completed documentation and returned the executed forms to
Respondent's office. Respondent received the information from Kulikowski shortly
after it was sent.
ANSWER:
Respondent neither admits nor denies the allegations contained in Paragraph 151
66
of Count VIM of the Complaint due to insufficient knowledge.
152. At no time after receiving the loan modification documents from
Kulikowski did Respondent, or anyone acting on his behalf, contact Bank of
America or Kulikowski.
ANSWER:
Respondent neither admits nor denies the allegations contained in Paragraph 152
of Count VIM of the Complaint due to insufficient knowledge.
153. Between approximately July 26, 2012 and October 16, 20 12,
Kulikowski telephoned Respondent's office weekly to obtain the status on his
loan modification. Respondent received Kulikowski's messages, but neither
Respondent, nor anyone acting on his behalf, returned Kulikowski's calls.
ANSWER:
Respondent neither admits nor denies the allegations contained in Paragraph 153
of Count VIII of the Complaint due to insufficient knowledge, and further
answering, Respondent states that he never received any such messages.
154. On or about October 16, 2012, Kulikowski's wife sent an email to
Lucina Reyes, an employee of Respondent's law firm, and requested that the
automatic debits to their bank account cease and terminated Respondent's
representation.
ANSWER:
Respondent admits the allegations contained in Paragraph 154 of Count VIII of
the Complaint.
155. As of October 16, 2012, Respondent had collected $21,300 in
67
• i
fees from Kulikowski.
ANSWER:
Respondent admits the allegations contained in Paragraph 155 of Count VIII of
the Complaint
156. On or about October 17, 2012, Kulikowski filed a charge with the
Consumer Protection Division of the Illinois Attorney General requesting a refund
of the unearned fees and costs paid to Respondent. On or about January 4,
2012, a Citizen's Advocate of the Consumer Protection Division forwarded
Kulikowski's charge to the Illinois Attorney Registration and Disciplinary
Commission.
ANSWER:
Respondent neither admits nor denies the allegations contained in Paragraph 156
of Count VIM of the Complaint due to insufficient knowledge.
157. At no time did Respondent or his firm perform sufficient work or incur
sufficient costs which would entitle him to collect and retain $21,300 in fees and
costs from Kulikowski.
ANSWER:
Respondent admits the allegations contained in Paragraph 157 of Count VIII of
the Complaint, and further answering, Respondent states that he refunded
$14,000 as a result of the accounting error.
158. By reason of the conduct outlined above, Respondent has engaged in the
following misconduct:
68
a. failure to act with reasonable diligence and promptness inrepresenting a client, in violation of Rule 1.3 of the Illinois Rules ofProfessional Conduct;
b. failure to reasonably consult with the client about the means bywhich the client's objectives are to be accomplished, failure to keepthe client reasonably informed about the status of a matter andfailure to promptly comply with reasonable requests for information,in violation of Rule 1.4(a)(2-4) of the Illinois Rules of ProfessionalConduct;
c. failure to explain a matter to the extent reasonably necessary topermit the client to make informed decisions regarding therepresentation, in violation of Rule 1.4(b) of the Illinois Rules ofProfessional Conduct;
d. making an agreement for, charging and collecting an unreasonablefee, in violation of Rule 1.5(a) of the Illinois Rules of ProfessionalConduct;
e. failing to hold property of clients in the lawyer's possession inconnection with a representation separate from the lawyer's ownproperty, in violation of Rule 1.15(a) of the Illinois Rules ofProfessional Conduct;
f. failing to deposit in a client trust account funds received to securepayment of legal fees and expenses, in violation of Rule 1.15(c) ofthe Illinois Rules of Professional Conduct;
g. upon termination of representation, failure to refund any advancepayment of fee or expense that has not been earned or incurred, inviolation of Rule 1.16(d) of the Illinois Rules of ProfessionalConduct;
h. conduct involving dishonesty, fraud, deceit or misrepresentation, inviolation of Rule 8.4(c) of the Illinois Rules of Professional Conduct;
i. conduct prejudicial to the administration of justice, in violation ofRule 8.4(d) of the Illinois Rules of Professional Conduct; and
j. conduct which tends to defeat the administration of justice or bringthe courts or legal profession into disrepute.
ANSWER:
Respondent denies the allegations contained in Paragraph 158 (a) through (j) of
Count VIM of the Complaint.
69