Lawyer accuses judge of bias in foreclosure mediation cases

Claiming bias in favor of mortgage lenders, the attorney for a judicial candidate who will lose his home to foreclosure accused the judge hearing the dispute of violating judicial ethics. On Friday, Jacob Hafter sent Judge Donald Mosley a six-page letter requesting the judge disqualify himself from presiding over all foreclosure disputes as the sole judge in Southern Nevada assigned to hear them.

Hafter said he believes the judge favors lenders and in doing so Mosley undermines the goal of the Foreclosure Mediation Program, which is to help troubled Nevada homeowners stay in homes.

“He (Mosley) is biased against the homeowner,” said Hafter following the hearing. “What you saw today is the failure of the Foreclosure Mediation Program.”

Mosley, in a Friday interview, said that “if a judge rules against you, you’re supposed to appeal it, not accuse him of violating judicial ethics.”

Hafter and his client, longtime attorney and Family Court candidate Carl Piazza, will appeal Mosley’s decision. Hafter said he will ask the Nevada Supreme Court to stop the foreclosure until the case is decided.

Hafter and attorney Gregg Hubley, who represents CityMortgage, engaged in heated exchanges throughout the hearing. Hafter alleges the lender acted in bad faith. Hubley said mediation was destined to fail.

From Hafter’s perspective, the most egregious complaint against Mosley is the judge’s decision never to modify a home loan from the bench, even though the Legislature gave courts that power when they created the foreclosure mediation program and gave it to the Nevada Supreme Court to manage.

Mosley said that shortly after he and Washoe County District Judge Patrick Flanagan were chosen to hear foreclosure matters they determined the Legislature’s approach was unconstitutional.

“You can’t take people’s property without due process,” he said. “The Legislature gave us authority, but we judges determined it was not constitutional. You can’t just wave a magic wand and start taking money from people.”

In court, Mosley indicated modifying loans would be burdensome as well.

“It would be a nightmare,” he said. “We’d be here until late at night and I’m not doing it.”

The judge’s admission prompted Hafter to suggest the judge was in violation of “numerous” judicial rules of conduct.

“If we look at everything the banks have done to Mr. Piazza, why not make them negotiate in good faith?” Hafter said.

“What makes you think I’m going to give them the (foreclosure) certificate,” Mosley responded. Hafter apologized for his earlier comments.

A few minutes later, the judge declared the lender could go forward with the foreclosure even though Hafter, Piazza, and Hubley agreed to a second attempt at mediation.

At the heart of the matter is Piazza’s $800,000 mortgage on a home now valued at $350,000. Piazza did not speak during the hearing, but afterward said he had trouble making the roughly $5,000 monthly payments after he underwent five-way bypass surgery in February 2009. A sole practitioner, Piazza said he had no income and had virtually depleted his savings while recovering .

“The mortgage went unpaid,” he said, adding that his lender told him he had to stop making payments before they could help modify the loan. “They didn’t do that, Your Honor,” said Hafter. “They didn’t help him. They hurt him.”

Hubley argued that mediation failed not because the lender acted in bad faith as Hafter alleged.

Hafter has made inflammatory comments in the past and is currently subject to Nevada State Bar discipline for statements attributed to him during last spring’s primary campaign. He said he fervently believes the judge is openly unwilling to remain impartial.

“Your repeated and open remarks about how you … have predetermined your rulings in these judicial review cases may have violated the rights of all of those who came before your court in the past and significantly jeopardizes the judicial process of all the people whose cases are pending,” he wrote in his request that Mosley step away from the case.

Contact Doug McMurdo at dmcmurdo@reviewjournal.com or 702-224-5512 or read more courts coverage at lvlegalnews.com.

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