Archive for January, 2014
Florida Rule of Civil Procedure 1.540 authorizes Florida courts to grant litigants relief from an Order if the Order resulted from the litigant’s “excusable neglect.” The classic example of this is when a party loses at a hearing because of an inadvertent calendaring error. That rule makes sense, and there are lots of cases which say so. After all, litigants should lose cases on the merits, not because the lawyer’s staff calendared a hearing incorrectly.
In foreclosure-world, where sloppy lawyering and careless bank practices are often the norm, the extent to which this Rule applies is a frequent source of contention.
An example we often see is when a bank’s lawyer fails to attend a court-ordered Case Management Conference. You see, judges in foreclosure cases routinely set such CMCs as a way to force dilatory plaintiffs to come to court to prosecute their cases. If the bank’s lawyer doesn’t attend this CMC, then boom – case dismissed. See Fla.R.Civ.P. 1.420(b) (authorizing dismissal for violation of a court order).
Often, plaintiffs’ attorneys seek relief from the Order of dismissal under Rule 1.540 by arguing “excusable neglect.” “Sorry, judge. We inadvertently failed to calendar the hearing, so we missed it. Don’t dismiss the case where we made a calendaring error.”
As bad as that may sound, there are many cases supporting that argument. Again, courts prefer to adjudicate cases on the merits, not by foibles of human nature. The problem, of course, is the plaintiffs’ lawyers know this, so it’s easy for them to cite the buzzwords to argue to obtain relief under Rule 1.540. As a result, the Rule is easy to abuse. You’re a bank lawyer and you want a adverse ruling vacated? From an Order at a hearing you didn’t even attend? Just argue your staff inadvertently failed to calendar the hearing, so that’s why you didn’t attend. Have the legal assistant sign an affidavit to that effect and the Order will get vacated. Right?
Often, it’s not that simple – or it shouldn’t be, anyway. You see, Florida courts only authorize relief where the neglect was “excusable.” That merely begs the question – when is neglect “excusable” and when it is inexcusable?
By way of example, suppose a plaintiff’s counsel did not even have a system in place to calendar hearings, rather the lawyer simply tried to remember all of the hearings. Or suppose there was a calendaring system, but the lawyer knew his secretary wasn’t calendaring hearings correctly and didn’t do anything about it. In those examples, that type of neglect would not excusable. As the Fourth District said in a similar context, that’s not evidence of a “system gone awry,” but a “defective system altogether.” Bequer v. Nat’l City Bank, 46 So. 3d 1199 (Fla. 4th DCA 2010) (reversing finding of “excusable neglect”). To use the words of the Second District, that wouldn’t be “excusable neglect” justifying relief from an Order, but “gross negligence.” See Hurley v. Govt. Employees Ins. Co., 619 So. 2d 477 (Fla. 2d DCA 1993) (reversing order finding “excusable neglect”).
Those might sound like extreme, even ridiculous examples, but let’s go back to my CMC example, sharing a real-life argument.
Recently, a Polk County judge dismissed a case I was defending where the plaintiff’s counsel did not attend a CMC. Order entered, case dismissed. Months later, the bank’s lawyer moved to vacate the Order, arguing his staff inadvertently failed to calendar the hearing. The lawyer even filed affidavits from his staff saying such.
I took a closer look at the file, then drafted this Timeline. It reflects how plaintiff’s current counsel had the file transferred to it by a different firm in June of 2013, yet new counsel did not actually file an appearance in the case until two months later. By that point, however, the Order setting the CMC had already been mailed (to prior counsel) and the CMC had already taken place. Hence, this wasn’t a calendaring error – the new firm wasn’t even counsel when the Order was mailed. The new firm had simply failed to appear in the case, even though the file had been transferred to them two months earlier. In other words, there wasn’t anything for the new firm to calendar; they hadn’t even received the Order due to their failure to appear in the case! Compounding the problem, the new firm waited two more months before seeking relief under Rule 1.540, arguing “excusable neglect.”
Here, take a look at the bank’s arguments. Now compare them to the facts in the Timeline. Not exactly an honest characterization of the facts, huh? And more significantly, it wasn’t “excusable neglect,” either. The judge agreed, the bank’s motion was denied, and the Order dismissing the case remained in place.
What’s the moral of the story? Excusable neglect might seem like a low standard – a low bar to clear. In many ways, it is. But all neglect isn’t excusable, particularly not in foreclosure-world.
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I had a hearing recently. As always, I had prepared beforehand, so I was ready and I was confident. As the hearing time arrived, though, I had to wait. This hearing was on a mass-motion calendar, such that several hearings in various cases were all scheduled at the same time.
Frankly, it often feels like a waste of time, having to wait and watch other cases while waiting for my turn. That said, it’s sometimes interesting to watch other lawyers argue.
Anyway, as I was watching these other cases, waiting for my turn, I realized that one lawyer’s argument was exactly the same as the argument I was about to make. Same facts, same argument, same judge. When that lawyer lost (“motion denied”), I was discouraged. My argument, after all, was the same. And that lawyer, frankly, hadn’t done a bad job.
About 30 minutes later, it was my turn. I argued the same issue, just in a little different way. “Motion granted.” Case dismissed.
Why would a judge rule differently on the same issue and the same facts in less than an hour? From where I was sitting, just one thing was different – the lawyer.
Maybe that judge knows I can (and will) go to the appellate court. Maybe that judge respects the work I’ve done and passion I exhibit representing homeowners. Maybe there’s something about the way I argued it that made the judge agree.
Whatever the reason, ask yourself this. If a judge can deny that first lawyer’s argument, when he did a pretty good job and presented the argument correctly, how do you think you’ll fare as a pro se homeowner trying to argue it yourself?
This is one aspect of this blog that has always troubled me. I want to help educate the public and spread information. But this information has to be used in the right way. If you think you can copy a form or something you’ve read here and use it to win, please take this story as a word of caution. Foreclosure defense isn’t just presenting the right argument – it’s making the right argument at the right time in the right way (and, often, from the right lawyer).
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I’m sad to report a heartbreaking story from Palm Beach, where a woman in foreclosure killed her two teenage children, then herself.
I didn’t know this homeowner, so I’m in no position to say whether her impending foreclosure was the impetus for this tragedy or if something else was the cause. Regardless, this seems like a good time to remind everyone about the human aspects of foreclosure.
To varying degrees, all of our courts are guilty of ignoring the human aspects of foreclosure. They are so consumed with adjudicating cases and reducing the number of pending suits that they forget … these are real people involved.
They’re a mom with two teenage sons struggling to keep a roof over their heads.
They’re an elderly couple living on a fixed income, hoping to stay in their home until they die.
They’re a middle-aged man who temporarily lost his job, unable to support his wife and children like he had.
With so much pressure on our courts from external forces, it can be easy to forget … these are the people we are serving. These are the people who live in the counties where the cases are pending. These are the people who elected the judges presiding over the cases.
So while some want to “grade” the success of the system based on how many cases have been adjudicated, I see a vastly different way to hand out grades. Compassion.
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After I got a foreclosure case dismissed, the bank appealed. Then a strange thing happened. The bank never paid the filing fee. Of course, except in limited situations which don’t apply here, no litigant can pursue an appeal without paying the filing fee. So what happened?
First, Florida’s Second District Court of Appeal issued an Order directing that the filing fee be paid within 20 days or risk dismissal. That was reasonable. Cases should be decided on the merits, and if failure to pay the fee was an oversight, the bank (or, for that matter, any litigant) should be given a chance to fix it.
At the end of that 20 day period, the bank did not pay the filing fee. Instead, it filed a motion for extension of time.
Huh? A behemoth financial institution needs more time to pay a $300 filing fee?
Over a month later, and nearly two months after the 2DCA warned the bank to pay the fee or risk dismissal, the bank had still not paid the filing fee. As such, the Second District dismissed the appeal.
The bank never sought rehearing of that ruling. Instead, two (more) months later, the bank asked that the appeal be reinstated when it finally paid the filing fee. All the bank said to support its position was that failure to pay the fee was due to some unspecified “clerical error.”
A behemoth financial institution takes four months to pay a filing fee, despite receipt of two Orders pertaining to the issue … and that’s a clerical error?
Over my objection, the Second District reinstated the appeal. No explanation was given, and the Order reinstating the appeal did not identify any judges who joined in that ruling.
Disappointed, I filed this Motion for Clarification, Reconsideration, and Written Opinion. I explained how there shouldn’t be two sets of rules, one for foreclosure cases and one for every other type of case. I lamented the absence of any legal authority for reinstating a dismissed appeal two months after the fact. I asked the Second District to identify the procedural mechanism which authorized the appeal to be reinstated. I asked that the judges who joined in that ruling identify themselves. I argued defendants in foreclosure cases should not be made to feel the rules are different for them.
Today, I received an Order directing the bank to respond to that motion. What an interesting and unique opportunity for the Second District to comment on the banking industry’s failure to perform the most basic tasks inherent in prosecuting foreclosure cases – and to let everyone know the rules aren’t different for homeowners in foreclosure.
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