Wednesday, December 15, 2010

Memo to Tom Miller-Keep It Simple.

It looks like Tom Miller is heading up a fifty state charge that seeks to address the number of bogus residential foreclosures that have become notable lately. Most notable have been the number of affidavits that were signed in bulk by people recruited from homeless missions and fast food outlets.

There's a very simple solution and I know exactly what it is.

Iowa R. Civ. P. 1.413(1) states in part "Counsel's signature to every motion, pleading or paper shall be deemed a certificate that counsel has read the motion, pleading or paper; to the best of counsel's knowledge, information and belief, formed after reasonable inquiry it is well grounded in fact and law and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law..." 1.413(3) states that any motion asserting facts as the order it seeks and any pleading seeking interlocutory relief shall contain or be accompanied by an affidavit of the person or persons knowing the facts requisite to such relief...

An affidavit, of course, is executed under penalty of perjury.

This places the responsibility for assessing the accuracy of the pleadings squarely on two people-the plaintiff's bar, and the affiants.

It seems clear-discipline the lawyers up to and including disbarment and send the perjurers to prison.

It also places responsibility on the defense bar-put the plaintiffs to their proof. They're the ones with the burden here.

It also places the ultimate responsibility on the judiciary to enforce these precepts and impose sanctions, which are mandatory under Iowa Code Section 619.19. In addition, if a party has filed three lawsuits in the past five years that were unsuccessful, the court may deem these to be frivolous and require the plaintiff to post a bond before proceeding sufficient to pay all costs accruing to opposing parties.


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