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Kate Gorbaty v. Cv- Wells Fargo Bank

February 1, 2011


The opinion of the court was delivered by: Gold, S., U.S.M.J.


Kate Gorbaty originally filed her complaint pro se on July 16, 2010, bringing claims arising from two loans made with defendants Wells Fargo.*fn1 I held an initial conference on November 5, 2010. Plaintiff's husband, an attorney named Dmitry Gorbaty, appeared at the conference and indicated that he intended to represent his wife in this action. The minute entry for the conference states that "Mr. Gorbaty is encouraged to review Rule 3.7 of the New York Rules of Professional Conduct before deciding whether to enter a notice of appearance in this case." On November 19, 2010, Mr. Gorbaty filed a notice of appearance as counsel for plaintiff.

Docket Entry 23. Defendants now move to disqualify Mr. Gorbaty from representing plaintiff in this action, arguing that he is a critical fact witness.*fn2


Plaintiff alleges that she is a victim of defendants' "abusive and predatory" loan practices. Compl. ¶ 5. Plaintiff applied for and obtained a mortgage loan for $276,000 and a home equity loan for $69,000, both from Wells Fargo, in connection with her purchase of a home in New Jersey in 2007. Among other claims, plaintiff asserts that defendants violated the Real Estate Settlement Procedures Act, 12 U.S.C. §§ 2601 et seq., and the Truth in Lending Act, 15 U.S.C. §§ 1601 et seq., by failing to make certain disclosures in connection with the processing of her applications and the closing on her loans on July 23, 2007. Compl. ¶¶ 7-16. In late 2009 and early 2010, plaintiff repeatedly applied to Wells Fargo for a loan modification pursuant to the Home Affordable Modification Program, but Wells Fargo rejected each of her applications. Compl. ¶¶ 21-26. Plaintiff then filed the instant action.

Defendants contend that plaintiff's husband, Dmitry Gorbaty, was a co-borrower on both the mortgage and home equity loans, that he will as a result be an important witness in this case, and that he therefore should not be permitted to serve as counsel. Plaintiff responds that she is the sole borrower and that she will suffer substantial hardship if she is not permitted to have her husband serve as her attorney in this lawsuit.

DISCUSSION "Disqualification is viewed 'with disfavor in this Circuit,'" and courts thus require a "'high standard of proof'" before granting a disqualification motion. Finkel v. Frattarelli Bros., Inc., __ F. Supp. 2d __, 2010 WL 3724373, at *1 (E.D.N.Y. Sept. 15, 2010) (citations omitted). Nonetheless, disqualification of a party's counsel is "appropriate where allowing the representation to continue would pose a 'significant risk of trial taint.'" Id. at *2 (quoting Glueck v. Jonathan Logan, Inc., 653 F.2d 746, 748 (2d Cir. 1981)).

In determining whether disqualification is proper, the Second Circuit looks to the standards for attorneys set forth in New York's Rules of Professional Conduct, N.Y. COMP.

CODES R. & REGS. tit. 22, § 1200.0. Murray v. Metro. Life Ins. Co., 583 F.3d 173, 178 (2d Cir. 2009). Defendants here contend that disqualification is proper under New York's witness-advocate rule, Rule 3.7(a) of the New York Rules of Professional Conduct. This Rule provides that a lawyer "shall not act as advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact," unless one of five exceptions is met.*fn3 N.Y. COMP. CODES R. & REGS. tit. 22, § 1200.0. When deciding a disqualification motion, a court should consider the necessity and weight of the attorney's purported testimony, taking into account the significance of the issue with respect to which the attorney is a witness and the availability of other evidence of the same facts. S&S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 N.Y.2d 437, 446 (1987).

The Second Circuit has identified the risks to the integrity of the judicial system posed when an attorney is likely to be a witness:

(1) the lawyer might appear to vouch for his own credibility; (2) the lawyer's testimony might place opposing counsel in a difficult position when she has to cross-examine her lawyer-adversary and attempt to impeach his credibility; (3) some may fear that the testifying attorney is distorting the truth as a result of bias in favor of his client; and (4) when an individual assumes the role of advocate and witness both, the line between argument and evidence may be blurred, and the jury confused.

Murray, 583 at 178. Despite these risks, motions under the witness-advocate rule are subject to strict scrutiny so as to guard against their tactical use. Id. Any doubts, though, should be resolved in favor of disqualification. Gabayzadeh v. Taylor, 639 F. Supp. 2d 298, 301 (E.D.N.Y. 2009).

Defendants' motion is based on their contention that Mr. Gorbaty is an important witness because he is a co-borrower on the loans in dispute and was present at the closing on the loans. Defendants argue that Mr. Gorbaty, who owns the house securing the loans with his wife, may even be a necessary party pursuant to Federal Rule of Civil Procedure 19(a).

Plaintiff contends that she is the sole borrower and that Mr. Gorbaty is therefore not a necessary party or critical witness. The documents submitted by the parties, however, indicate otherwise. First, the mortgage documents identify both Kate and Dmitry Gorbaty as borrowers. Docket Entry 26-2 at 1-17, 20, 32, 33.*fn4 Moreover, it appears from documents submitted by the defendants that both Dmitry and Kate Gorbaty signed the applications for the loans at issue. Docket Entry 26-1. It further appears that both plaintiff and her husband, on the closing date, signed the mortgages ...

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