I have an oral argument before Florida’s Second District Court of Appeal tomorrow morning. The issue before the appellate court is whether the lower court was correct in dismissing a bank’s foreclosure lawsuit where the requisite pre-suit notice did not comply (or, to use the bank’s proffered term, “substantially comply”) with the terms of paragraph 22 of the subject mortgage.
Paragraph 22 is something I’ve been discussing for a long time on this blog. While I’ve argued it hundreds of times before Florida’s circuit court judges, this argument is the first of its kind in a Florida appellate court … at least in the context of a homeowner getting a case dismissed at summary judgment for paragraph 22 noncompliance. Yes, there are published decisions which have reversed a Final Judgment of Foreclosure where the bank did not comply with paragraph 22, but none which expressly authorize an outright dismissal of the bank’s lawsuit for failure to comply. For me, that’s the logical next step in the argument – one on which I’ve prevailed in many dozens of Florida foreclosure cases and one I which I hope to succeed in tomorrow’s case.
The interesting thing about this argument is that, even though it appears new and novel, it’s actually not. In fact, this argument has been around since before I was born.
Just a few days ago, a homeowner came to me to defend a foreclosure lawsuit on a mortgage that was entered and recorded in 1982. Yes, 1982. The mortgage was a “short form” mortgage created by Federal Home Loan Mortgage Corp., and that “short form” mortgage incorporated by reference a “Master Form” Mortgage recorded in the Official Records of Hillsborough County on February 29, 1976 at OR Book 3093, Page 1749. If that sounds complicated, it’s not. All it means is that each specific “short form” mortgage, i.e. each homeowner’s particular mortgage, includes as a part of that mortgage the terms and provisions set forth on the Master Form.
As I perused the Master Form Mortgage, I quickly noticed the bolded paragraph contained in paragraph 18. Do you recognize it? You should. It’s virtually identical to the standard “paragraph 22” that we see in so many Fannie Mae mortgages nowadays.
Yes, what we now know as paragraph 22 has existed in countless mortgages in Florida since at least February of 1976. Hence, the argument may seem novel, but this issue has been around for 35(+) years.
As I see it, 35(+) years is enough time for binding precedent from an appellate court to be created that says “The bank’s obligations under a contract mean something. We agree a foreclosure lawsuit must be dismissed where the bank’s paragraph 22 notice did not say what it was required to say.”
I’ll post the videos of the oral argument if I can get my hands on them. Wish me luck.
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I’m a big believer in the justice system. In fact, that’s part of why I became a lawyer. I believe in every litigant’s right to obtain a fair hearing and trial before a neutral judge and/or impartial jury. It sounds cliché, but that’s what I do – help people navigate the judicial system in their time of need.
In recent months, though, the judiciary in many parts of Florida (not all, but many) has turned into something I don’t recognize. The change has been so sudden and so extreme that it’s altering the face of the judiciary and hindering that which I hold so dear – the right to fair hearings and due process. Yes, what I consider the “core” of a fully-functioning judicial system is eroding.
If you’re a Florida lawyer but you don’t handle foreclosure cases, you likely have no idea what I’m talking about. After all, outside of foreclosure-world, Florida’s courts are operating like normal, business as usual. Sure, the down economy has brought some minor changes, but all in all, our courts are functioning in a normal way.
Foreclosure cases, though, are a totally different animal.
I was chatting with a colleague the other day, an attorney who doesn’t handle foreclosure lawsuits, and he was shocked as I described the things I see in foreclosure court on a daily basis. This is a seasoned attorney who was SHOCKED at what I see every day. That made me realize … I’m not doing a good enough job of explaining the travesties I see every day in foreclosure-world.
It’s a tough line to toe, frankly. Bar rules prohibit me from disparaging any particular judge, so it’s sometimes difficult to explain what’s happening in foreclosure court without crossing that line. In this blog, though, I’m going to toe that line. Don’t misunderstand – I’m not criticizing anyone in particular. Rather, my critique – and that’s what I see this as, a constructive critique, coupled with a hope that everyone will realize just how flawed our system has become – is aimed at the entire institution. My concerns aren’t with any particular judge or any one ruling – they lie with the entire judicial system, the way the entire judiciary is operating right now, at least as it pertains to foreclosure cases.
I know what you’re thinking. I’m just a self-interested, foreclosure defense attorney who’s trying to delay foreclosures and let people live for free. I’m upset because the courts are making that more difficult. Right?
Before you blow off my concerns in that manner, you tell me. Are my concerns legitimate? Is this how a judicial system should operate? You tell me …
As a foreclosure defense lawyer, I’ve seen pro se homeowners attend hearings in their cases and not be allowed to speak. Not one word. It wasn’t that the judge didn’t hear the homeowner or didn’t realize he/she was present, either – the homeowner asked the judge to speak at a duly-noticed hearing and was not permitted to do so. Homeowner loses, yet couldn’t say one word. Isolated incident, you say? I’ve personally seen it more than once.
Not being permitted to speak has not been limited to pro se homeowners. I have personally been threatened with criminal contempt – criminal contempt – for moving to disqualify a judge after striking my defenses without letting me say one word about those defenses. Your defenses are stricken, you can’t talk, and if you complain about it, I’ll throw you in jail.
In many parts of Florida, attorneys are not permitted to attend foreclosure hearings by phone – regardless of how insignificant or short the hearing may be. Never mind that the Florida Supreme Court created a rule of judicial administration which requires phone appearances be permitted for hearings that are 15 minutes or less absent “good cause” – in many parts of Florida, attendance by phone is simply not permitted.
I’ve heard some justify this procedure by explaining how it’s difficult to deal with phone appearances in foreclosure cases. Really? How is it any more difficult than in other types of cases? Frankly, I can’t help but wonder if the prohibition on phone appearances is designed to make it harder for defense lawyers to appear in cases for homeowners, enabling the courts to push through those cases faster. (Prohibiting phone appearances obviously makes it harder and more expensive to attend hearings, often making the difference in a homeowner’s ability to afford counsel.)
That’s an absurd proposition, though, right? Why would our courts care how quickly foreclosure lawsuits are litigated? Judges are neutral arbiters – they don’t care how quickly the cases are adjudicated. Do they?
The answer to that question is at the heart of the problem. In recent months, the Florida legislature has been putting immense pressure on Florida judges to clear the backlog of foreclosure lawsuits. How much pressure? Well, the legislature controls the amount of funding that goes to our courts – funding that is needed to retain new judges, senior judges, court staff, and clerks (basically, the funding necessary to keep all judges and JAs from being totally overwhelmed). Unfortunately, the legislature has been giving these judges an ultimatum, kind of like parents do to their children regarding allowance. Basically, it works like this … “if you don’t finish these foreclosure cases, we won’t give you more funding.” As such, the legislature holds the judiciary hostage … if the judiciary doesn’t clear cases, then the legislature doesn’t give the judiciary the funding necessary to manage the many thousands of foreclosure lawsuits pending before it.
Perhaps worse yet, and to my sheer disgust, I’m told the legislature recently cut the pay of Florida judges (for the first time in years), and the clear understanding was that it was done as a way to punish/blame the judges for not clearing up the backlog of foreclosure cases faster. “You won’t enter judgments fast enough for our liking … we’ll cut your pay.”
(The pay of Florida judges is public record, right? Why is nobody talking about this?)
The judicial system shouldn’t operate this way. We all learned it in elementary school, how the three branches of government exist as “separate but equal” branches of government, employing a system of “checks and balances” to ensure a fully-functioning government. But that’s not what’s happening right now, certainly not in foreclosure court. In foreclosure-world, the legislature is king.
You might think this is conjecture and speculation on my part. It’s not. I can’t go a week without hearing how the legislature is forcing judges to move cases. Judges discuss it openly in open court, and not just to me – to everyone. As a result of this dynamic – judges wanting to move cases – I see all sorts of crazy things I’d never see in any other area of law.
I’ve mentioned the homeowners who can’t speak, the threats of incarcertaion, and the prohibition on phone appearances, but let’s get to some more egregious concerns.
Judges sua sponte set trials in foreclosure cases (without a Notice of Trial having been filed, without a CMC or pretrial conference, and without discussing/clearing the date with an counsel). This is now routine, virtually everywhere in the state.
Judges sua sponte set trials in foreclosure cases where a motion to dismiss is outstanding and the defendant has not filed an answer.
Judges sua sponte set trials with less than 30 days’ notice (such that, as defense counsel, you randomly receive a trial Order in the mail, reflecting you have a trial in 2 weeks).
The sua sponte setting of trials dominates the landscape of foreclosure-world. Banks often don’t want trials in foreclosure cases, but the judges will set them anyway. Then, even when the plaintiffs are vocal about not wanting a trial in that particular case, judges often insist they go forward anyway. Even stipulated/agreed Orders to continue a trial or vacate a trial Order often go unsigned.
Sometimes, where trial has been set in violation of Rule 1.440, judges will recognize the error and fix it. (The judges in Pinellas and Hillsborough in particular are good about this, striving to follow the law.) In many others cases, though, judges will proceed with trial anyway. In foreclosure circles, one county has become known for using a stamp – DENIED – right on the motion to vacate trial Order, without a hearing. Case not at issue? Doesn’t matter. Less than 30 days’ notice? Doesn’t matter. Bank doesn’t want a trial? Doesn’t matter. We’re going to trial!
Often, judges won’t proceed with trial where the defendant hasn’t filed an Answer but will essentially force the Answer to be filed forthwith. How is this accomplished? Easily – either deny the motion to dismiss (often without a hearing), or sua sponte set a CMC to ensure the case gets at issue. Some courts use CMCs as a way to, in my view, browbeat parties into settling. One county, for example, has started setting three CMCs at once – one per week for three consecutive weeks, requiring in-person attendance, at mass-motion calendars that last an hour or more, with no input from counsel on when the CMCs are scheduled. You’re not available? Too bad. You don’t need a CMC three weeks in a row? Yes, you do. Your case will get at issue and it will be set for trial.
Oh, and if you want to set a hearing in this county, you have to mail in a form – MAIL IN A FORM – and wait for them to respond to you, by mail, with a form that gives you a set hearing date, without any input from you on when that hearing takes place.
What dominates the thinking from the judiciary – again, not my speculation, but something the judges openly discuss – is their desire to “close” cases. That’s the monster that the legislature has created – evaluating the performance of judges not based on their work as judges but based on the results set forth in an Excel spreadsheet. How many foreclosure lawsuits were filed in that county? How many judgments have been entered? If the ratio of judgments entered to cases filed is high enough, then the judges in that county are doing a good job and deserve more funding from the legislature. If not, then those judges and JAs can all suffer through the many thousands of cases without more help.
The dynamic is so perverse that I’ve seen judges refuse to cancel foreclosure sales even when both sides ask them to.
Plaintiff’s lawyer: “We don’t want this foreclosure sale to go forward, judge.”
Defendant’s lawyer: “We are living in this house. We don’t want this foreclosure sale to go forward, judge.”
Judge: “Foreclosure sale will go forward as scheduled.”
This dynamic is particularly difficult to take when the parties have reached a settlement. For example, loan modifications sometimes happen after a judgment but before a sale. That means, essentially, that both sides are willing to forego foreclosure with the homeowner resuming monthly mortgage payments. Incredibly, based partly on their desire to “close” a case, some judges will force a foreclosure sale to go forward even when both parties don’t want it to, having settled their dispute via a loan modification.
Plaintiff’s lawyer: “We have agreed to a loan modification. We want the foreclosure sale cancelled.”
Defendant’s lawyer: “We have agreed to a loan modification. We wan the foreclosure sale cancelled.”
Judge: “Foreclosure sale will go forward as scheduled.”
Even when both sides are able to resolve disputes before trial, even then they sometimes can’t escape a dress-down from the judiciary. For instance, I’ve watched judges threaten Bar grievances against lawyers – yes, Bar grievances – where they settled the lawsuit by consenting to a foreclosure judgment with a deficiency waiver and extended sale date. Mind you, that’s a perfectly legitimate way to compromise and settle a foreclosure lawsuit – bank gets the house, homeowner avoids any further liability and gets to stay in the house longer so as to pack up and move – but the prospect of the sale date getting pushed out 4-5 months angers some judges. “No, you can’t settle that way. The sale has to happen sooner.” Yes, I’ve seen settlements like this rejected with the sale set sooner than the parties agreed.
There’s absolutely no rule or law that requires a sale to happen sooner where the parties agree. Unfortunately, the judges are motivated by having that case “closed” so the numbers on the spreadsheet look better for the legislature.
My natural response is to lament the unfairness of it all. After all, that homeowner gave up the chances of winning at trial predicated on getting more time in the house. I find it terribly unfair that the homeowner gave up a right to trial in exchange for an extended sale date that the judge took away … right? Some judges would scoff at that notion. After all, I’ve heard several times, in open court, “there is no defense to foreclosure,” or “I’ve never seen a valid defense to foreclosure,” or words of that ilk. Never mind that I’ve had many dozens of foreclosure cases dismissed throughout Florida, including several at trial (25 different judges have dismissed a lawsuit of mine on paragraph 22 noncompliance, for example) … there is no valid defense to foreclosure and, hence, no reason for an extended sale date.
Another county has become known for punishing any defendants who force a trial to proceed. I personally observed the judge begin every hearing by telling the homeowners and their counsel that they “better” accept a 120-day extended sale date, as if that “offer” was rejected then it would be “off the table” after the trial. The implication here was obvious to everyone in the room … You want to show up and force the bank to prove its case? You’ll lose, and I’ll punish you by ruling against you and forcing you to move out sooner.
Some would say that the way to deal with this madness is to appeal. Easier said than done. Homeowners facing foreclosure are often in no position to fund an appeal. I’ve taken some appeals for free, but there’s only so many I can handle that way. Oh, and even if you get beyond the issue of funding, go look for published decisions that are pro-homeowner in the First DCA, Third DCA, or Fifth DCA. Many thousands of foreclosure cases have been adjudicated in those areas in the past several years. How many favorable rulings do you think have come out of those jurisdictions during that time? I’ll give you a hint – not many. In many ways, appealing in those parts of the state is like standing at the bottom of Mount Everest and being told “climb.”
Dealing with this dynamic has been very difficult in recent months. It’s a hard pill to swallow. It’s difficult to watch the judicial system bend at the direction of the legislature. It’s tough to know the concept of “separation of powers” that we all learned in elementary school is being cast aside. It’s hard to feel like the most fundamental concepts of due process are being sacrificed to push lawsuits faster when even the plaintiffs in those lawsuits don’t so desire. It’s hard to feel like these procedures have made it impossible for me to help homeowners in certain parts of the state. It’s frustrating that many reading this will be upset at the entire judiciary, not realizing there are many circuit judges – particularly in Hillsborough, Pinellas, and other areas within the ambit of Florida’s Second District – who are striving to be fair and follow the law notwithstanding all of the pressure from the legislature.
Mostly, though, I’m disappointed. I’m disappointed that such perverse procedures are happening in our courts every day yet nobody is talking about it – and many don’t even realize it’s happening. I’m disappointed that the justice system I knew is eroding. I’m not going to find a dictionary definition, but that’s what erosion is – a slow process of deterioration such that, before too long, that thing which previously existed is no more.
I hope everyone shares this blog. I hope my friends, colleagues, attorneys and homeowners all understand what’s happening in our courts. I hope everyone stands up to the legislature and demands it stop this madness. Most of all, I hope the erosion of our judiciary stops … soon.
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