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DCBA Brief's President's Message REAL ESTATE LAWYERS UNITE Real estate and other transactional attorneys
are the "silent majority" of our association. We know you’re
out there even when we don’t often hear from you. Even those real
estate lawyers who do grace the Judicial Center escalator (whether
working or not) rarely speak out. It is time for the silent majority
to be heard. "We" real estate lawyers cannot fiddle away
in our own transactional world while the real estate law business
as we know it is about to burn. Buy a piece of real estate west of
the Mississippi or now even south of I-88 if you want to know what
I mean. In many, if not most, of those real estate transactions, the
only lawyers involved are the ones who own or manage the escrow company.
It’s time to sound the horn, circle the wagons or such other cliché.
The battle front for real estate lawyers is now at our doorstep.
IRELA Leads the Charge The Illinois Real Estate
Lawyers Association (IRELA) is at the forefront of the battle lines.
For example, litigation is now pending in the Circuit Court of McHenry
County. IRELA has filed suit against One World Title Corp. asserting
that the title company is engaged in the unauthorized practice of
law (UPL). Our member and ISBA Third Vice President, John G. O’Brien,
is the plaintiff in the litigation, along with IRELA. Joseph Fortunato,
long standing DCBA member and our former Real Estate Law Chairperson,
is an expert witness for IRELA. At issue in the IRELA
litigation is a document titled "Sellers Binding Agreement for
the Purchase of Title Insurance." The Defendant real estate broker
submitted this "Binding Agreement" at the time the real
estate sellers executed a listing agreement. The agreement purports
to restrict the sellers’ right to subsequently obtain title insurance
from anyone other than "One World Title." Although the sellers
are given a three-day right of cancellation, IRELA has convincing
evidence that a seller of real estate does not even consult with an
attorney until there is a contractual offer which is long after the
three-day right of recision has expired. In the event the seller fails
to consummate the Agreement, One World files suit for its lost revenue.
One World Title has previously filed suit against an attorney (One
World Title Corp. v. Bolger) asserting that the attorney intentionally
interfered with its contractual right to perform title services because
the attorney used a title company of her own choosing. IRELA asserts in the
pending litigation that it is the role of the attorney to discern
which title company is best suited for the client to clear title exceptions.
IRELA has a line of real estate practitioners who have testified at
deposition and who will testify at trial that the choice of a title
company is dependent upon multiple factors and it is through the experience
of a knowledgeable real estate attorney that the ultimate decision
should be made on behalf of the client. Factors that real estate lawyers
use in determining the appropriate title company include the insurers
underwriting capability, claims history, expertise in potential survey
issues, previous underwriting experience for the same property, financial
stability, experience of the legal department, and competency in resolving
title issues and claims. One World Title defends
with arguments to the effect that the choice of a title company does
not import "legal advice" and further asserts that when
it uses a contract with its own customers, the "pro se exception
to the unauthorized practice of law applies." Let’s Pay Attention We all need to pay attention
to the outcome of the IRELA litigation and other inroads to our practice
areas. Support the IRELA litigation as the DCBA has chosen to do so.
Attend DCBA Real Estate Law Committee meetings and become a leader.
Pound your shoe on the table. Demand action from the ISBA UPL Committee,
CBA, KCBA and our own DCBA. Be the "silent majority" no
more. Your livelihood is at issue. Finally, to all lawyers who don’t
do real estate closings, please consider what will become of all the
lawyers who do, if their ability to support their families dissipates.
Your "space" may get crowded. You’re in this too! I 2 F …IT’S FREE! Recently, Chris Kachiroubas,
Dewey Hartman and the staff of the Circuit Court Clerk of DuPage County
unveiled its new free e-filing system. By the time you read this President’s
Page, you should be able to access the Clerk’s program at "I2file.net."
Payments for new filings, appearance fees, etc., are accepted via
credit card (with a small service fee). All motions and other non-fee
filings are FREE. The Clerk’s system does not yet effectuate
service to your opponent which may become a future added feature.
Also, any document filed electronically by 4:30 p.m. is deemed filed
on that day, regardless of when the Clerk’s office subsequently opens
and posts your document. Any document which you file after 4:30 p.m.
is deemed filed on the next Court business day. WORTH REPEATING Based upon popular demand,
the following portion of my last President’s Page has been requested
again, so here it is: Sshhh! Don’t tell anyone
else. This is between just you and me. Have you ever seen Judge Abraham
pull up your case file on his computer and show you the content of
a prior Court Order or some document you filed? Haven’t you said,
"Damn ….. I’d sure like to do that." Because YOU are a loyal
DCBA member and read my President’s Page, here’s how you can do the
same thing from the privacy of your own office or home. Step 1 – Go to www.dupagecase.org/
(Circuit Clerk Kachiroubas restricted information system) Step 2 – Click on the
words "submit request here" Step 3 – When the web
browser certificate screen pops up, type in your name and email address.
Click on "submit." Step 4 – The system will
provide you with a certificate request number. Write it down. Step 5 – Send an email
to Dewey Hartman, administrator. His email address is dhartman@dupageco.org.
Tell him that you are a DCBA member and that President Gaffney requests
that he approve your request for a certificate. Alternatively, call
Dewey’s office at (630) 407-8581 and communicate verbally the same
information. Don’t forget to give Dewey your certificate request number
which you have written down. Also contact Mary Louise Heaton, (630)
407-8579; email mary.heaton@ dupageco.org. Step 6 – Obtain your
password number with your certificate approval. Step 7 – You’re in. Send
me an email describing how you like the system and what you’re using
it for. If it’s not working, call Fred Spitizzeri. Glenn R. Gaffney is the principal of Gaffney & Gaffney aka Gaffney and Son in Glendale Heights, concentrating his practice on employment law litigation. He received a Bachelor of Science in Business Administration and Marketing from the University of Illinois Champaign/Urbana and a J.D., cum laude, from Southern Illinois University School of Law. |
