CPR 94
Adopted: October 21, 1976
Inquiry: A lawyer is trustee in a deed of trust conveying real estate as security for a loan made to a borrower by bank. The bank advises the trustee that the loan is in default and requests that the trustee institute foreclosure proceedings. The trustee gives notice in accordance with the statute and the hearing is held before the clerk. The trustee placed the original note and recorded deed of trust in evidence and an officer of the bank testified that the loan was in default. The borrower appeared through an attorney and denied the validity of the deed of trust and denied that a default had occurred but offered no evidence. The clerk found the facts required by statute and entered an order authorizing foreclosure and sale. The borrower gave notice of appeal to the Judge.
1. May the lawyer/trustee or a member of his firm ethically represent the bank at the hearing before the Judge on appeal?
Opinion: No.
May the lawyer/trustee or a member of his firm ethically represent the trustee on appeal?
Opinion: Yes.
2. If the Judge sustains the order of the clerk and there is an appeal to the Court of Appeals, may the lawyer/trustee or a member of his firm ethically represent the bank on appeal?
Opinion: No.
3. If a civil suit (as distinguished from these special foreclosure proceedings) is brought against the bank and the lawyer/trustee seeking to enjoin foreclosure and sale, can the lawyer/trustee or a member of his firm ethically act as lawyer for the bank in such litigation?
Opinion: No.
May the lawyer/trustee or a member of his firm ethically represent the lawyer/trustee in such litigation?
Opinion: Yes.
4. If the notice of sale and foreclosure proceedings is withdrawn and there is a voluntary dismissal of the special proceeding to foreclose, may the lawyer/trustee or a member of his firm ethically represent the bank in the suit seeking to enjoin foreclosure?
Opinion: No.
May the lawyer/trustee or a member of his firm ethically represent the trustee in such suit?
Opinion: Yes.
5. If the lawyer/trustee resigns as trustee, may he or a member of his firm ethically represent the bank in the suit seeking to enjoin if the borrower and all endorsers or guarantors on the note consent for him to do so?
Opinion: Yes.