Did I Really Sign That? When Signed Affidavits Are Altered Before Filing

Most law firm clients would assume that an affidavit, once signed, would remain unchanged when it is filed in court. Recently, however, certain affiants in Cook County would have been perfectly justified in asking, "Did I really sign that?"

This issue was brought to light by General Administrative Order No. 2011-01 (GAO 2011-01), entered in March 2011 by Judge Moshe Jacobius in the Chancery Division of the Circuit Court of Cook County. GAO 2011-01 illustrates the importance of a close working relationship between law firms and their clients. In particular, clients must know and understand the content of any affidavit they sign. Similarly, if an affidavit that was previously executed is changed, a law firm must make its client aware of the alteration, have the client approve it and execute the affidavit after the alteration is made. As can be seen from the synopsis that follows, failure to follow this protocol can have dire results for both the client and the attorney.

The entry of GAO 2011-01 came about because a well-known Chicago law firm that specializes in mortgage foreclosures informed Judge Jacobius that in certain instances it had filed affidavits that varied from what the affiant actually signed. According to GAO 2011-01, employees of the law firm would remove the signature page from the affidavit as executed by the affiant. They would then make changes to the document—by adding attorneys' fees, insurance costs and preservation costs, among other things—and reaffix the original signature page to the altered affidavit. Upon receiving this information, Judge Jacobius felt he had to take steps to protect the integrity of the court, the Illinois Mortgage Foreclosure Law, the Illinois Code of Civil Procedure and the Illinois Supreme Court Rules. Because there were approximately 1,700 cases with questionable affidavits, he ordered specific procedures designed to ensure that the affidavits were true and correct when signed.

First, the court mandated a stay of all the cases in which the offending law firm was involved. After that, the court required the firm to file the following motions, at a minimum, in each of the cases:

1. A motion to vacate judgment of foreclosure and sale;
2. A motion for leave to file an amended affidavit;
3. A motion to vacate judicial sale (if the sale had occurred);
4. A motion to lift the stay, which at a minimum must verify that the most recent affidavit filed with the court was true and correct and based on the personal knowledge of the affiant;
5. A motion to vacate confirmation of sale, if applicable.

Needless to say, the procedures mandated by GAO 2011-01 were time consuming and created a significant hardship for the law firm and its clients. GAO 2011-01 also sent a clear message to other law firms in Cook County: in addition to damaging a law firm's reputation with its peers and the court, failure to properly prepare and execute affidavits can negatively affect an affiant's credibility and give the court a basis to void or vacate a judgment. While it may seem like a needless and ministerial task, a client/affiant and its law firm should always review and re-sign an affidavit that has been modified since it was originally executed.