illinois attorney registration aup disciplinary …agreement and paid respondent his requested fee...

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:



4 Mark Laskowski ("Laskowski"), a non-attorney, signed the Database

Services Agreement on behalf of FDG on February 3,2010.

ANSWER:



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:



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:



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:


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:


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:


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:


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

10

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;

11

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.

12

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:


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:


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;


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:


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;


Complaint


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:


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.


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:


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:




d. making an agreement for, charging and collecting an unreasonablefee in violation of Rule 1.5(a) 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:


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:


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:


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:


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:


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:


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:


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:


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:


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:


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:


Paragraph 71 of Count IV of the Complaint. Respondent denies that these fees

were unearned.



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:


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:


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:


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:


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.


which would entitle him to retain the $3,000 received from Borushek.

ANSWER:


Complaint.



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


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:


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:


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


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:


Paragraph 102 of Count VI of the Complaint due to insufficient knowledge,

and demands strict proof thereof..


which would entitle him to retain the $7,500 received from the Treaces.

ANSWER:


Paragraph 102 of Count VI of the Complaint due to insufficient knowledge,

and demands strict proof thereof..



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.



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:


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:


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


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;


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:


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:


Paragraph 126 of Count VII of the Complaint due to insufficient knowledge

and demands strict proof thereof.


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.



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:


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:



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:



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:



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:



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:



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



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:



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:



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


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:


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:


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:


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:


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:


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:



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:


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:


the Complaint.

155. As of October 16, 2012, Respondent had collected $21,300 in

67

• i

fees from Kulikowski.

ANSWER:


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:



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:


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




d. making an agreement for, charging and collecting an unreasonablefee, in violation of Rule 1.5(a) 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

i • •

WHEREFORE, Respondent prays that the Administrator's Complaint bedismissed.

Respectfully Submitted,

SAMUEL J. MANELL)

ATTORNEY FOR RESPONDENT

SAMUEL J. MANELLA #06190368ATTORNEY FOR RESPONDENT20 NORTH CLARK STREETSUITE 1100

CHICAGO, ILLINOIS 60602(708) 687-6300

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illinois attorney registration aup disciplinary …agreement and paid respondent his requested fee...

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