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In re Dilk

Supreme Court of Indiana

February 10, 2014

In the Matter of: Gary L. DILK, Respondent

Brent E. Dickson, Chief Justice of Indiana. All Justices concur.

OPINION

Brent E. Dickson Chief Justice.

PUBLISHED ORDER FINDING MISCONDUCT AND IMPOSING DISCIPLINE

Upon review of the report of the hearing officer, the Honorable Dan E. Marshall, who was appointed by this Court to hear evidence on the Indiana Supreme Court Disciplinary Commission's " Verified Complaint for Disciplinary Action," and the briefs of the parties, the Court finds that Respondent engaged in professional misconduct and imposes discipline on Respondent.

Procedural background:

The Commission filed its " Verified Complaint for Disciplinary Action" on November 23, 2009. As later amended, it charges nine counts of misconduct. Counts 1-3 concern Respondent's representation of clients referred to him by Foreclosure Solutions, LLC

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(" Foreclosure Solutions" ). Counts 4-8 concern his representation of clients referred to him by other organizations. All of these organizations (" Foreclosure Assistance Entities" ) were for-profit entities offering assistance to homeowners in negotiations to avoid foreclosure in actions brought in Indiana. Count 9 involves Respondent's serving as " of counsel" in Indiana foreclosure actions for an Ohio law firm.

On October 25, 2013, the hearing officer filed his report entitled " Findings of Fact and Conclusions of Law" (" Report" ). In briefing to this Court, neither party argues that the hearing officer's findings of fact should be disturbed, and thus we adopt them as the Court's. Respondent does not deny at this point that he violated the rules charged. The major issue is what discipline the Court should impose.

Facts:

Between 2005 and 2008, Respondent accepted approximately 2,675 referrals from Foreclosure Solutions, a for-profit Ohio LLC, at a standard rate of compensation of $125 to $150 per case, receiving approximately $380,100 during those years. In these actions, pursuant to instructions from Foreclosure Solutions, Respondent would typically enter an appearance, request an extension of time, file a general answer, provide updates and forward documents to Foreclosure Solutions or the clients by use of form letters, and refer any inquiries from the clients back to Foreclosure Solutions. His typical practice was to allow judgment to be entered without opposition or hearing. He would often advise the courts that he would not be attending the hearing and did not object to entry of judgment.

Respondent had no direct contact with many of his clients. If contacted by a client, he would advise them that his role was limited to monitoring and delaying the legal proceedings and keeping the parties and Foreclosure Solutions advised about what was occurring in the case. If not contacted by a client, he would not advise the client about his limited role. If a client contacted him about potential defenses, he would not accept the case or would take steps to withdraw his appearance. He followed the course of action decided upon by Foreclosure Solutions and rejected any clients who wished to divert from that course.

In one case that differed from the typical, the clients told Foreclosure Solutions that they were not behind in their mortgage payments and believed that their payments had been misapplied to another account, providing a detailed list of the payments. Foreclosure Solutions provided this information to Respondent, who requested documentation from the clients. After the clients provided partial documentation, Respondent made no attempt to conduct formal discovery to obtain further documentation. In response to the mortgage holder's summary judgment motion, he did not attempt to present the clients' testimony regarding their payments via affidavit. He testified that he did not believe his clients' statements and thought it would be improper to file an " unsubstantiated statement" in response to the summary judgment motion. On May 1, 2006, he sent a form letter to the clients informing them that summary judgment had been entered and that a sheriff's sale would be scheduled. His file contained bank statements and Western Union receipts substantiating the clients' list of payments, which he received and faxed to Foreclosure Solutions on May 17, 2006.

In representing clients referred to him by other Foreclosure Assistance Entities and in serving as " of counsel" in foreclosure actions for the Ohio law firm, Respondent ...


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