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Indiana attorney with failed Florida firm calls ethics complaint against her a ‘witch hunt’

November 2, 2016

By outward appearances, Divina K. Westerfield is an attorney practicing in Indianapolis. The Indiana Roll of Attorneys lists her address downtown on Market Street. A website promoting Westerfield & Associates — www.suethebanker.com — says “Indiana law for Indiana residents.”

But looks can be deceiving. Westerfield said in a phone conversation she hasn’t practiced in Indiana for years. Her address on the Roll of Attorneys is a UPS Store. She’s in the real estate business in Florida, though not long ago, she was also in the legal business in the Sunshine State. Trouble is, she was never admitted to the Florida bar, and multiple Floridians claim they were scammed by a firm there bearing her name.

Westerfield & Associates LLC signed up clients with promises it could obtain “free and clear title” to their homes, loan reductions, or quick cash settlements from lenders. Three alleged victims said Westerfield’s firm collected from them flat fees of $5,500 to $9,000 for legal actions that the firm never filed and on which little work was done. The Indiana Supreme Court Disciplinary Commission suspects there are likely more victims who didn’t lodge complaints.

Westerfield, who’s representing herself in her attorney discipline proceeding, insists she’s done nothing wrong, even after a hearing officer recommended in October that she be suspended from the practice of law for 18 months without automatic reinstatement.

“My position was and will always be that my actions did not constitute the practice of law in the State of Florida,” she wrote in an email.

Checks, please

Westerfield’s website boasts about teaching over 600 attorneys nationwide in a seven-hour long continuing education course how to fight the banks using mortgage securitization and quiet title. After talking with Indiana Lawyer for this story, she made the website password protected.

Her disciplinary case alleges her trouble stemmed from another type of seminar. Starting around fall 2011, a non-lawyer named Wayne Tope gathered distressed Florida homeowners with promises that he could obtain titles to their homes or slash their mortgage payments. He gained the trust of one woman, the complaint says, “by saying he was a pastor and appealed to her Christian beliefs. … He told her when there are errors, the mortgage could be paid off.”

Tope signed up clients for legal representation by Westerfield & Associates based a flat fee, the complaint says, noting he handed out his business card and a flier advertising Westerfield’s suethebanker.com website. “Homeowners who signed up for legal representation through Tope gave Tope several post-dated checks, for [as many as 12] monthly installments, which in total equaled the agreed flat fee,” according to the complaint. Westerfield admits she deposited checks from Tope in her Indiana Interest on Lawyer Trust Account, but she said she approved no fliers or marketing material.

One client grew suspicious and told investigators that when she Googled Tope, she found no record of his business. When she called the number on his business card, it had been disconnected. Another client said at one point he was offered a loan modification directly from his bank, but he was advised by the law firm not to take it.

The disciplinary commission accused Westerfield of violating the Florida Rules of Professional Conduct after the case was referred to Indiana. Florida could not bring a disciplinary action because Westerfield was not admitted to practice there, and Indiana rules require charging under the rules of the state where the alleged violations occurred.

Westerfield is accused of several ethical violations of Florida rules, including unauthorized practice of law; charging inappropriate fees; failing to refund fees that had not been earned; and charging and collecting a fee obtained through prohibited solicitation.

Just business?

Westerfield says she registered Westerfield & Associates LLC with the Florida Secretary of State’s Office and allegations concerning Tope are based on hearsay, though she acknowledges she hired him to promote other businesses.

“Do I regret Tope meeting with law clients? Of course, in hindsight I should have just had a conference call with these people who wanted my assistance and emailed the same documents. These people sought Wayne out through the grapevine, not the other way around,” she wrote in an email.

Westerfield signed managing partner agreements with a series of Florida lawyers who were responsible for doing the legal work. According to the disciplinary commission, the agreements said Westerfield “would be ‘partner Alpha’ and would obtain 90 percent of the net profits from the fees billed to Florida clients” and the Florida managing partner “would be ‘partner Beta’ and would obtain 10 percent of the net profits.”

The managing partners each left after just a few months. Because of the nature of these arrangements, Westerville also is accused under Florida rules that forbid operating an interstate law firm without a bona fide partner who is a member of the Florida bar. She blames the managing partners for the ultimate failure of the firm that closed in November 2012.

“I relied on Florida attorneys to assure me that it was being operated pursuant to Florida law,” she said in the email. “These attorneys had every ability and even the obligation to say that something needed to be changed. Did any of them do that? No. They signed the partnership agreements. Regardless of the partnership financial division of 50:50 or 90:10, or any division in between, they were still managing partners and licensed Florida attorneys. … Did I not have the right to rely on them as managing partners of the Florida Interstate Law Office that it was being run as it should be?”

One partner, she wrote in her disciplinary reply, “pillaged the office of as many cases as he could take with him” and “had not been able to establish a sustainable solo practice prior to that time and he took the opportunity of taking clients of Westerfield & Associates to start his own law firm.”

‘I love my life in Florida’

Hearing officer and Marion Superior Judge Gary Miller found no mitigating factors in Westerfield’s case and wrote that her prior discipline — an administrative admonition and four-year suspension from the practice of law from 2005-2009 — were aggravators. His recommendation of an 18-month suspension is before the Indiana Supreme Court, which ultimately will decide the sanction against her, if any.

Westerfield said in an email she was reinstated in 2009 after being suspended when she had moved to Florida and didn’t receive notice of a grievance sent to the wrong address. The Supreme Court reinstatement order found her reply satisfactorily answered the grievance against her. “The Commission found that after four years of struggling to regain my license I had done nothing wrong,” she said.

Miller wrote that in this case, Westerfield had represented Florida clients before she registered the firm and said she was “disingenuous and evasive about her relationship with Tope. There is ample evidence that Tope was acting on her behalf to solicit and sign up clients for legal representation.”

Miller noted Westerfield also manufactured numerous after-the-fact billing entries in an attempt to justify time spent on matters where no actions were filed. He said they were questionable but more importantly irrelevant: Her agreements weren’t based on hourly billing, but flat fees. He also cited her lack of remorse: “She referred to the disciplinary process against her as a ‘witch hunt,’” Miller wrote.

While Westerfield said she doesn’t want to be suspended without automatic reinstatement, she described her life as somewhat removed from the practice of law.

“My husband and I build homes, buy, renovate and sell homes, broker homes, and buy and sell mortgage notes or buy and foreclose on mortgage notes and then renovate and sell the property,” she wrote in an email. “I also have a non-profit that I started in 2012 and hope to teach again through the non-profit. I live close to the beach. I love my life in Florida. And how many people that attended law school can say that?”•

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