County bureaucrats make mistakes. That's why lenders and servicers, including credit unions, find themselves receiving e-mails and other messages from local counsel explaining why documents were not filed and/or why there were delays in completing milestones. Some explanations may seem far-fetched. More likely than not, they are truthful.
Once documents leave your local counsel's hands, control is lost. Murphy's Law applies. They can get lost in the mail (which is an agency of the federal government) on the way to courthouses or adverse events can happen inside courthouses. As a general rule bureaucrats do not much care about your timelines, your upcoming sheriff's sale, or your upcoming REO sale. They do not care about perfection. And they may even have a personal animus against lenders.
For instance, in our state, Pennsylvania, the following have occurred:
* Sheriffs' deputies posting notice of sheriff's sale on wrong properties.
* Sheriffs' deputies serving legal documents on minors (not permitted in Pennsylvania) or outright forgetting to serve them.
* Sheriffs' deputies preparing and recording incorrect sheriff's deeds (e.g. incorrect legal description, incorrect grantee).
* County clerks time-stamping documents for the wrong dates (e.g. Oct. 32).
* County clerks recording real estate documents in the wrong sequence (not following cover letters containing specific instructions as to which document to record first, second, etc.).
* County clerks rejecting documents for incomprehensible/bizarre reasons.
* County clerks returning documents to wrong firms.
* Post offices stamping proofs of mailing for wrong years.
* Mail delivery trucks breaking down on the way to the courthouse.
While mistakes are inevitable, and while there certainly are bureaucrats who are extremely conscientious and perform their job duties in an exemplary manner, the foregoing examples reflect lack of attention to detail, lack of care, and plain sloppiness-which adversely affect your timelines.
What Won't Help
County governments are protected by sovereign immunity laws so entertaining a lawsuit against a county for negligence is not a valuable use of time. Further, it is not recommended that local counsel be instructed to call these individuals and "read them the riot act," as a lecture from an attorney will not likely aid your cause.
Consequently, lenders/servicers may need to re-think their positions against courier service and hand-deliveries, as the use and presence of couriers or process servers may help ensure that documents are filed and/or recorded properly. Also, lenders/servicers can authorize fees for motions/petitions to address such mistakes (for instance, Pennsylvania has a specific rule that authorizes motions compelling corrective sheriff's deeds in the event of mistakes therein).
Finally, some tolerance may need to be built into existing timelines to account for "bureaucratic mistakes" or, at minimum, "judicial" or "court delay" holds should be routinely approved on foreclosures when there is evidence of such mistakes.
M. Troy Freedman is an attorney with Richard M. Squire & Associates, LLC, Jenkintown, Penn.