[Update 1: Adds comment from Shapiro & Fishman] A investigative subpoena issued by the Florida Attorney General to the foreclosure law firm Shapiro & Fishman was blocked by a trial court in a ruling upheld last week by the state’s 4th District Court of Appeal. Last year, former Florida AG Bill McCollum alleged the firm manufactured affidavits to speed up foreclosures. In August, he issued a subpoena seeking information on whom the firm had dealings with, including which servicers it represented over the past five years. But two months later, a trial court judge ruled McCollum used the “wrong tool” by relying on the Florida Deceptive and Unfair Trade Practices as the basis for his investigation. Then, last week, Judge Spencer Levine of the 4th District Court of Appeal upheld the ruling. In his opinion, Levine said the subpoena “was issued to investigate actions of the appellee law firm not covered under the rubric of ‘trade or commerce’ as clearly required by this statute.” “Since we find the attorney general failed to establish that the object of the civil subpoena was connected to ‘trade or commerce,’ we need not address the other issues raised by the appellant, and we affirm,” Levine wrote. Two federal courts addressed similar issues in the state, including one case involving Mortgage Electronic Registration Systems. The judge in that case found MERS, too, did not “advertise, solicit, provide, offer or distribute” anything as required by state law to fit the definition of “trade or commerce.” However, Judge Levin said current Florida AG Pam Bondi, who succeeded McCollum at the start of 2011, could still pursue Shapiro & Fishman and similar firms under a criminal investigative subpoena if other criteria are satisfied. “Last week, the court explicitly outlined other avenues through which the attorney general’s office may investigate law firms involved in foreclosure misconduct,” said a spokeswoman in Bondi’s office. “We are currently reviewing our options.” A spokesperson for Shapiro & Fishman called the subpoena “overly broad,” maintained the firm acted appropriately and said it continues to voluntarily respond to complaints. “To date the firm has reviewed the relative handful of ‘complaints’ it has requested from the AG and not found any substance to any of them,” the spokesperson said. Write to Jon Prior. Follow him on Twitter @JonAPrior.
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