Disbarment Recommended for Florida Foreclosure King David Stern

This from the Florida State Bar referee report:

This type of misconduct persisted and was again discovered in the spring of 2009. Assignments of mortgages were filed throughout the state which contained fraudulent notarizations. The Bar submitted 40 assignments into evidence which on their face were notarized by 11 different notaries and revealed that they were not notarized on the date reflected. Not only were the dates false, but the evidence established through the testimony of Kelly Scott that Cheryl Samons executed approximately 1,000 assignments per day, moving from floor to floor in the Stern firm. Kelly Scott testified that there was never any witness or notary present when Ms. Samons executed the document. Tammie Kapusta testified to the same procedure. (The Florida Bar Exhibit 41, page 24). Also, notaries’ stamps were freely exchanged between the notaries, according to Tammie Kapusta. (The Florida Bar Exhibit 41, page 23). Several paralegals actually signed Cheryl Samons’ name, according to Kelly Scott on assignments, without any indication of the true signatory. Mr. Stern failed to present any evidence upon which I should disregard this sworn testimony.

I find that the circumstances establish Mr. Stern was aware of these procedures as a result of his regular presence at the firm, his direct and imperviable relationship with Cheryl Samons, as well as the fact, as testified to by several witnesses, that he knew everything that occurred at his firm. His corrective action of additional instructions to the notary with the threat of termination did not resolve the problem as indicated by the Toledo and Suarez affidavits.

Mr. Stern testified about one notary, Terry Rice, who executed an assignment with a notary stamp that could not have been in existence on the date the document existed. He recounted Ms. Rice’s explanation that although she was actually present when the document was signed and mistakenly notarized months later with her new notary stamp. Although plausible, the existence of the 40 assignments by 11 different notaries with the same defect reflects otherwise.

Further, these false notarizations, witnessing, and backdating are not innocuous. Attorney Michael Wasylik testified to the submission of a corrected assignment prepared by David Stern reflecting that it was filed “to correct the effective date”. In fact, the date was not in error. (The Florida Bar Exhibits 16, 17). Rather, the corrected assignment was filed to cover the improper notarization of the original assignment. The “corrected” assignment was a subterfuge and/or fraud.

They reject Stern’s attempt to shift the blame onto his employees:

Mr. Stern’s response to each transgression is a claim of delegation to two senior attorneys, their two subordinates, and his office manager. Mr. Stern misinterpreted his obligation. He was the only partner. As the only partner and sole managing attorney, he has the ultimate responsibility for his firm. Rule 4-5.3(c) of the Rules Regulating The Florida Bar. There is no evidence that Mr. Stern reviewed or took any responsibility for the work product of the non attorneys or the process by which it was produced to ensure compliance with the Bar Rules. There is likewise no evidence that Mr. Stern, pursuant to his obligation of Rule 4-5.1(a) of the Rules Regulating The Florida Bar, made any efforts to ensure that his firm had any measures in place to assure that his attorney staff was in compliance with the Rules Regulating The Florida Bar. In fact, to the contrary, it was Mr. Stern himself, with his desire to bring in more business and to ensure the sale of his back office, which served to push his staff to performing in a substandard manner in contravention of the Rules Regulating The Florida Bar.

Some of the aggravating factors:

Mr. Stern has not expressed any remorse in these proceedings. He has taken no responsibility. The mistake or difficulties are the actions of others.
Lastly, Mr. Stern has not presented me with any evidence of mitigation. As such, I have no basis to recede from the Bar’s recommendation of disbarment. It is the appropriate result.