I. Introduction
Jason Cerbone moves this Court to disqualify attorney Colby E. Longley and attorney Robert L. McCorkle III, and McCorkle, Johnson, & McCoy, LLP, from any further participation in this case under Georgia Rules of Professional Conduct Rules 3.7, 1.7, 1.9, 1.10, and any other relevant law.
Exhibits Index
- Exhibit 1: Strict Compliance Foreclosure letter written by Colby Longley stating that the only person with authority to speak to me is Tom Watson. This shows Longley’s total involvement in the case and his unique knowledge of the facts.
- Exhibit 2: Text messages between Josh Walker, Robert McCorkle, and Colby Longley on the day they foreclosed my house, January 5, 2021. This shows improper negotiations with an unauthorized third party.
- Exhibit 3: CFPB Borrower Authorization Form to speak to a third party. This is the industry standard form to use to gain authorization to speak to a third party. However, this federally mandated form was not used or followed.
- Exhibit 4: Affidavit of Colby Longley stating that Longley was communicating with Ryan Murphy and Josh Walker about my confidential mortgage loan and the Forbearance agreement.
- Exhibit 5 and 6: Affidavits of attorney, Robert McCorkle, who also states that he was text messaging Josh Walker about my loan the day they foreclosed my house.
II. Facts
On November 14, 2020, I received a foreclosure letter (Exhibit 1) from Colby E. Longley, whom I had never met or spoken to. Longley was working for McCorkle, Johnson, & McCoy, LLP, the law firm hired by Queensborough National Bank & Trust Co. In the letter, Longley wrote that they were accelerating my mortgage. I was shocked because my loan had no acceleration option, according to the six different loan disclosures I received from Carol Brooks, my only contact at the bank. These included the last one, which was mailed to me unsigned by Queensborough on April 17, 2017, three months after the closing. The Closing Disclosure form is required at least three days before the closing. Queensborough violated Federal rules when they sent me disclosures after the closing.
Longley wrote that the only person I could speak to about my mortgage was a man named Tom Watson (whom I had never heard of and whom I have never spoken to).
On December 8, 2020, I received a phone call from a client and an old family friend, Ryan Murphy. He said he had been talking with my father, Adam Cerbone. Ryan asked for my permission to speak to the President of Queensborough, Mike English. He asked me to email Mike English, authorizing him to speak to Ryan. So I did.
On December 10, 2020, Mike English sent me an email and wrote, “I think the best way to handle this is for you or your representative to make an offer directly to our attorney, Robert McCorkle, who is cc’d here and can be reached at 9122326000. We’ve engaged Robert to assist us with this.”
At 12:47 p.m. on January 5, 2021, a lawyer named Josh Walker, whom I have never met or spoken to, sent two text messages (Exhibit 2) to Colby Longley about my loan. Josh Walker was not my agent. He was not my lawyer. I had never even spoken to Mr. Walker until after my house was foreclosed. Mr. Walker was asked by my father, Adam Cerbone, to hold $35,000 in his trust account to pay Queensborough the amount I owed them, which was less than $35,000.
At 12:59 p.m. on January 5, 2021, one of Queensborough’s lawyers sent a text message to Walker that said:
“I will ask the bank but you know how far this has to have already gone to get to today. And we have been discussing with Borrower reps for a month. Obviously they can bring it current per the amount provided and keep paying the payment if they need time but I will ask.”
At 2:35 p.m. on January 5, 2021 a Deed Under Power was signed by Michael English, knocking my house down at auction for $332,415 to Jody Lanier. The Deed states, “When Recorded Return to Colby E. Longley.”
Exhibit 3 is a Third Party Authorization Form created in 2014 by the CFPB. According to the Office of the Comptroller of the Currency (OCC), the Federal Reserve Board (FRB) and the Consumer Financial Protection Bureau (CFPB), there are Federal laws that require mortgage lenders to comply with regulations, such as having me fill out a third party authorization form for the lender to have permission to speak to someone on my behalf. Queensborough never required me to fill out any forms or obtain my authorization to speak with Colby E. Longley, Joshua Walker, or Robert McCorkle. However, they continued to talk, thereby violating their own strict compliance foreclosure letter.
Queensborough never contacted me by cell phone, text, or even a phone call from April 2020 to the present. However, Queensborough had other people (not Tom Watson, who they named as the only communicator for Queensborough), strangers to me, talk to other strangers to me (Joshua Walker) about my mortgage and negotiated my house and mortgage with those strangers, which caused my house to be foreclosed behind my back.
Exhibit 4 is an Affidavit of Colby E. Longley showing that Longley was communicating with Ryan Murphy, and Josh Walker, about my confidential mortgage loan and the Forbearance agreement. It shows that Longley sent a Forbearance agreement to Ryan Murphy so Ryan could send it to me. It also shows that Longley was negotiating with Walker hours before they sold my house.
Exhibits 5 and 6 are Affidavits of attorney, Robert McCorkle, who also states that he was text messaging Josh Walker about my loan the day they foreclosed my house.
On August 16, 2021, Longley filed Defendant’s Queensborough National Bank & Trust Co. Pre-Hearing Report. Under Analysis and Citation to Authority Colby Longley wrote “The plaintiff does not argue that QNBT failed to follow any requirement or prerequisite to foreclosing as required under Georgia law.” This is incorrect. The plaintiff has proven that Queensborough violated numerous requirements before wrongfully foreclosing on my house.
Further down the page, Colby Longley wrote:
“…the undisputed facts show that QNBT, by and through its counsel, forwarded a forbearance agreement to the plaintiff’s representatives. The plaintiff did not accept this offer of forbearance, but rather, asked if there was some lesser amount QNBT would take in exchange for a period of forbearance.”
This is not true because I had no representative. I accepted the offer of forbearance on December 31, 2020, the night it was sent to me by calling and mailing a written letter that evening. I believe Longley is referring to his conversations about my confidential loan with Josh Walker. Walker was neither my agent nor my representative. Also, when Colby Longley, and Robert McCorkle III communicated with Josh Walker they violated Rule 1.6 Confidentiality. They had no authority to talk to Walker. Why didn’t they call me? Why didn’t they talk to me? Ever.
III. Authority
Rule 3.7 Lawyer as Witness
A lawyer shall not act as advocate at a trial where the lawyer is likely to be a necessary witness, except where:
- The testimony relates to an uncontested issue, or
- The value of services, or
- Disqualification would cause a substantial hardship on the client.
“…It is relevant that one or both parties could reasonably foresee that the lawyer would probably be a witness.” GA. R. & REGS. ST. BAR 3.7 Comment 4.
“If a lawyer who is a member of a firm may not act as both advocate and witness because of a conflict of interest, Rule 1.10: Imputed Disqualification disqualifies the firm also.” GA. R. & REGS. ST. BAR 3.7 Comment 5.
Longley and McCorkle are necessary witnesses. No other witnesses can provide the same testimony. Their testimony is uniquely necessary to material facts: (their negotiations and representations to unauthorized third parties). No one else, such as clerical staff or bank employees, can provide equal testimony. Their involvement with my mortgage, from the initiation of the foreclosure to its completion, will require cross-examination at the jury trial. This creates a conflict of interest if they remain as advocates.
Rule 1.6 Confidentiality
(a) A lawyer shall maintain in confidence all information gained in the professional relationship with a client, including information which the client has requested to be held inviolate or the disclosure of which would be embarrassing or would likely be detrimental to the client, unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation, or are required by these rules or other law, or by order of the court.
Longley and McCorkle had unauthorized communications with Josh Walker and Ryan Murphy when they communicated by email and all other forms of communication about my loan. I never gave informed consent as required by Rule 1.6 to disclose my confidential information to anyone. The information exchanged was for forbearance negotiations, and payment figures that were confidential. I never gave written authorization, such as a Third-Party Authorization form. The disclosure of my confidential information was improper.
Rule 1.7 Conflict of Interest
(a) A lawyer shall not represent or continue to represent a client if there is a
significant risk that the lawyer’s own interests or the lawyer’s duties to another client, a former client, or a third person will materially and adversely affect the representation of the client,…
“If the propriety of a lawyer’s own conduct in a transaction is in serious question, it may be difficult or impossible for the lawyer to give a client objective advice.” GA. R. & REGS. ST. BAR 1.7 Comment [6]
“Where the conflict is such as clearly to call into question the fair or efficient administration of justice, opposing counsel may properly raise the question.”GA. R. & REGS. ST. BAR 1.7 Comment [15]
Rule 1.9 Conflict of Interest: Former Client
(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.
(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client:
(1) whose interests are materially adverse to that person; and
(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9 (c), that is material to the matter; unless the former client gives informed consent, confirmed in writing.
(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the
former client except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client, or when the information has become generally known; or
(2) reveal information relating to the representation except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client.
Rule 1.10 Imputed Disqualification
(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7: Conflict of Interest: General Rule, 1.8 (c): Conflict of Interest: Prohibited Transactions, 1.9: Former Client or 2.2: Intermediary.
Lack of Prejudice
Disqualification of Colby Longley and Robert McCorkle, and the law firm McCorkle, Johnson, & McCoy, LLP, is not unduly prejudicial nor will it cause undue delay to the Defendants. They are a large Bank, and there is no pre-trial order yet. There is no trial date, so Defendants may easily retain substitute counsel. Lastly, and most importantly, the integrity of the judicial process outweighs any inconvenience to Defendants.
Therefore, Jason Cerbone moves this Court to disqualify attorney Colby E. Longley and attorney Robert L. McCorkle III, and McCorkle, Johnson, & McCoy, LLP, from any further participation in this case under Georgia Rules of Professional Conduct Rules 3.7, 1.7, 1.9, 1.10, and any other relevant law.
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