New York Law Journal
February 01, 2010

  • A Brooklyn judge has allowed an action to go forward against two attorneys and others who are accused of facilitating a $629,000 mortgage for a waitress who earned less than $25,000 a year.
  • Plaintiff Portia Joseph alleged Brooklyn attorney Adrian A. Ellis, who represented her in connection with the purchase of a house in Bedford-Stuyvesant in New York City, and Rockland County, N.Y., attorney Joseph Kunstlinger, who appeared on behalf of mortgagor Bank of America, encouraged and directed her to execute fraudulent loan documents.
  • Faced with a substantial lien and potential foreclosure, Joseph and her mother, Angil Jones, filed claims against Ellis and Kunstlinger, as well as Bank of America, real estate broker Ora Tvilli and Tvilli’s company OTN Enterprise, among others.

Judge Schmidt writes…

  • “Deception and misrepresentation in home buying, appraising and financing services adversely effect the public at large insofar as the acts inevitably lead to mortgage loans which are doomed to failure and which adversely effect the housing market.”
  • “Practices such as those alleged by plaintiffs herein are particularly troubling as they are calculated to take advantage of lower income potential first time home buyers who are unfamiliar with the process and are more apt to rely on defendants’ sophistication.”

Attorney statements:

  • Kunstlinger, the principal of the Joseph Kunstlinger Law Firm claims that he and Bank of America are the victims of the alleged fraud.
  • “Our position is that the fraud was pulled on us, not them. It seems pretty funny that we [could be] liable for the fraud they committed,”
  • “We have almost nothing to do with anything other than the fact that the documents get signed correctly. If there is a trial, we will be completely exonerated.”
  • Ellis, who represented the plaintiffs at the closing, said his responsibility was to manage the legal issues, not the financial one
  • “I never inquire into my client’s income,”
  • “If someone is buying a house for $700,000 there’s an assumption they can afford the property.”
  • “Generally speaking, I don’t know how many attorneys ask their clients how much they earn, then do a financial analysis of whether or not they can afford the property.”

Spokeswoman for the bank:

  • “We don’t comment on specific facts in litigation. … However, in general, not specific to this case, when a lender provides funds for a fraudulent loan, the lender is the victim and the lender loses the money.”

Joseph and Jones are represented by David J. Hernandez of Brooklyn
In response to the defendants’ comments, Hernandez said;

  • “They’re all the victims? What frightens me about those kinds of statements is it shows how big business is doing business as usual. People are being seduced to borrow money, no matter what the price, no matter what the ramifications. This is a scam from top to bottom.”

Read entire article here…

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