Max Gardner's Consumer Defense Academy
January 18th, 2013
New York attorney Linda Tirelli is definitely a ranking officer in Max’s army. Since she first attended Boot Camp in 2008, she’s been putting the BLM to very effective use, scoring some significant victories on behalf of bankruptcy clients. Recently, she scored a victory on behalf of consumer bankruptcy attorneys when she was awarded more than $125,000 in fees. She agreed to talk with us about how she built her BLM-based practice, how Boot Campers around the country support her work and what the fee award means for the profession.
How did your current focus on bankruptcy litigation develop?
I’ve been licensed to practice law since 1995, but spent some years in the corporate world. When I went into private practice in 2008, I knew that I wanted to do bankruptcy litigation. I attended Boot Camp for the first time that year, and set up my practice according to the BLM.
In addition to your own bankruptcy caseload, you handle litigation issues for other consumer bankruptcy firms. How do you develop those relationships?
First, of course, I had to establish myself and build a track record litigating my own cases. At this point, I’m receiving 5-10 cases per week from other firms, but I have to be careful about whom I partner with. Not all bankruptcy firms are created equal so I chose my affiliations carefully looking for reputable firms which I feel can keep the base bankruptcy case in good standing while I handle the litigation aspects. If the foundation of a solid base case isn’t there, the case will fall apart and litigation will be for naught, so I have to be able to rely on the primary firm to build and maintain that foundation.
Beyond the quality of the firm, what do you look for in an outside case?
I look for the most messed up cases that most debtors’ attorneys don’t want to touch. The more crazy and absurd they are, the more likely it is that we’ll be able to show the judge that there’s something wrong with the creditor’s claim.
How do you manage working with clients on these limited scope cases in which another firm is handling the base case?
I have separate retainer agreement that clearly states that their base case is being handled by the other attorney and defines the scope of representation. Then, I read them the riot act: if their base case falls apart, their claim will, too, so they have to pay the trustee and do whatever else is necessary to keep that base case moving forward. Like any good attorney, I copy the clients on everything and invite and encourage them to attend as many of the hearing and status appearances as possible. I also ask that every client email me with their questions so that they have a record of my responses. Communication is key, so I provide my cell phone number to every client as well.
You’ve had some significant victories working the BLM—is there a secret to your success?
Once you start fighting the bank, you can’t do it half-assed. It’s all or nothing. The BLM does work, but you have to be committed. And it doesn’t lend itself to volume practice. The banks are not going to roll over. They’re going to object to your discovery, so you’d better be sure you have a basis. You can’t wave a magic wand, and you can’t hand it off to a new associate and expect him to run with it. It’s not a get rich quick scheme in a box, and it’s not for the faint of heart. It’s going to be a lot of work. When fighting a bank, persistence pays off.
The Kercado case, in which you were awarded more than $125,000 in fees, involved a mortgage claim. Before we get into the specifics of that case, tell us a little bit about how you handle that type of case.
I start off with a TILA letter, a RESPA letter and what I call a “WTF? letter”. The big difference between a case I file and a case I’m litigating for another firm is that if it’s my case, I’m sending the TILA and RESPA letters before filing. The bankruptcy and foreclosure departments at any major servicer don’t communicate, so chances are that you’re going to get conflicting information. If the case is already in progress, you miss that opportunity for pre-petition document gathering, but the copies of documents you receive in response to RESPA and TILA may still not match the documents attached to the Proof of Claim. I establish a pattern of inconsistencies.
The “WTF letter” is based on my examination of the proof of claim and any correspondence between the base firm and OC. A good “WTF? letter” says the claim is deficient and that there’s no apparent connection between the loan documents and the claim, then references Rule 3001(c) and gives them ten days to fix it. No one ever has.
When they don’t fix it, I file an AP objecting to the Proof of Claim. I give them about two weeks to respond, which they almost never do, and then start serving up discovery requests. Go at them like a machine gun, asking for everything. You have to find a way to outlast them, and the way to do that is to be very organized, understand your case history and cost them money.
Some attorneys are uneasy about giving that kind of notice because they think they’re giving the opposition time to clean up after themselves. Is that an issue?
Never an issue because the servicers can make a decision and make corrections in 10 days. I will take that bet any day of the week. Once they’ve submitted false documents, it’s very hard to go back and correct that. Amending the claim to not include the fake assignment of mortgage doesn’t unring the bell. Beyond that, I have to tell you that no servicer ever fixes its incorrect Proof of Claim because they simply cannot help themselves. Proofs of Claim are prepared by the lowest-level paralegals at the foreclosure mill law firms, and they need permission and instructions from corporate counsel in order to act on that letter. It’s just not going to happen in ten days. They’re just not that limber.