I made the news today. Twice, actually. Two completely different stories, too – one where I was mentioned in a way that most would view as positive, the other in a way that probably makes you think “why on earth is Stopa broadcasting that?” For me, though, the stories are inter-related and merit discussion, as they shine a spotlight on how the foreclosure process is supposed to work.
In 2010 (I think it was 2010 – it was a long time ago), I was working on a foreclosure case – nothing out of the ordinary – when I asked a foreclosure judge to allow me to amend my client’s pro se Answer to the Complaint. Leave to amend is freely granted, yet the judge denied the motion on the basis that delays in the adjudication of the case would not be tolerated. Wow. Having to defend the case with the client’s pro se answer made the case a virtual slam-dunk for the bank; we had no defenses! Yet as the banks are prone to do, they still managed to screw it up, showing up at trial without the original note and without a single witness – none of the proof needed to win.
I believe the judge should have dismissed the case, particularly when the bank had no excuse for its failure to bring a witness. (Years later, the excuse still annoys me – the witness “didn’t feel like coming.” Wow.) But instead of dismissing, the same judge who denied leave to amend (to avoid delay) granted a continuance … creating, yes, a delay. I was quite disappointed. As I saw it, a delay was okay when it was the bank that needed one, but impermissible for the homeowner, even for something as simple as leave to amend. I viewed it as a wrong ruling, and I set up a motion for rehearing saying so.
The intent behind that motion is a huge part of my persona in foreclosure-world. It’s the battle I’ve waged every day … every hour of every day … for the last five-plus years – trying to get a court system adamant about pushing foreclosures through the system to follow the law and be fair. By and large, I think I’ve succeeded. Today I got my 670th foreclosure case dismissed. Not with leave to amend, outright over, homeowner wins. 670! Numbers aside, I now believe most judges before I appear regularly are very fair and strive to follow the law … and I’d like to think my efforts over the last several years have had something to do with that, not just for my clients, but throughout Florida.
This motion, though, was worded in a way that was too over-the-top. It angered the judge, who forwarded it to the Florida Bar. I didn’t even sign the motion, and firmly believe I could have fought the process and avoided punishment. But rather than engaging an expensive, time-consuming battle when I’d rather be defending homeowners, I settled the dispute by accepting a reprimand (basically a warning) and moved on. Today, the Tampa Bay Times wrote an article about it. And while I don’t think I was quoted correctly, the point is basically right – that I’m going to keep striving to help homeowners, but do so in a way that keeps me out of hot water.
Why on earth would I willingly talk about this in an open forum (under no obligation to do so)? Well, that story today came out the very same day as this other story, where I was published in Naked Capitalism. The arguments I raised for one homeowner in a foreclosure case before Palm Beach County before Judge Diana Lewis were used to support the author’s view that said judge was not being fair to homeowners. That’s a big story this week because Judge Lewis will no longer be a judge coming November, as she lost the election to Jessica Ticktin.
Frankly, I haven’t appeared before Judge Lewis too many times. That said, I’ve talked to my colleagues and I’ve read what the Palm Beach Post and other papers in South Florida had to say about her as election day approached. Virtually everywhere I looked, the newspapers were endorsing her competitor, Jessica Ticktin, and not Judge Lewis in the recent judicial election. From what I’m told, Judge Lewis often told homeowners who were foreclosed, during court proceedings in open court, to “start packing.” And as the transcript from my hearing reflects, Judge Lewis said her “job” was to move foreclosure cases.
While I have nothing bad at all to say about Judge Lewis, I can’t help but feel like the process worked here. The motion that I filed in that case, above … the one that got the Bar mad at me … was never going to have terribly much impact on the process as a whole. Yes, it was part of what I do, but I could have accomplished the same result without words that were that inflammatory. The judicial election, on the other hand … that’s the way to really make an impact. So if you think a judge is unfair in foreclosure cases or, frankly, any type of case, guess what? Judges are elected officials. If it’s really that bad, then gather up public support, wait for the next election, and vote for the competitor! That’s basically what happened in the Ticktin/Lewis race, and that’s probably why Ticktin won.
I’d like to think the Ticktin/Lewis outcome also serves as a subtle reminder to all Florida judges that “yes, we have a job to do, and yes, that sometimes include foreclosing on homeowners in our county, but we still have to answer to these homeowners, so we have to be fair about the way in which the foreclosures are done.”
In this same vein, judicial accountability to the public is a significant reason why many lawyers believe the senior judge system in Florida doesn’t work. You see, unlike normal, sitting circuit judges, senior judges do not get (re-)elected and, hence (at least arguably), have no accountability to the public at all. In other words, the senior judges have no fear of what happened to Judge Lewis, as they aren’t elected. That’s no disrespect to any particular senior judges whatsoever – I appear before senior judges nearly every day, and most try very hard to be fair and follow the law. That said, I think the results in Ticktin/Lewis reveal the importance of all judges, particularly in foreclosure court, being subject to re-election by the Florida public. So all of you who complain about judges, remember election day – that’s where you can make a difference.
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Florida’s Fifth District Court of Appeal just issued this decision in Garcia v. BAC Home Loans, reversing a Final Judgment of Foreclosure because the trial court improperly denied a motion to dismiss for lack of prosecution. I always enjoy appellate decisions which rule in favor of homeowners, and I’m particularly biased to the ones where I’m counsel. So what can we learn from today’s decision?
Florida Rule of Civil Procedure 1.420(e) sets forth a two-step process by which courts must dismiss a lawsuit (any civil lawsuit, not just a foreclosure case) where the plaintiff has not been diligently prosecuting the case. I’ve blogged about lack of prosecution in the past, and the Rule is pretty straightforward. If nothing at all is filed for a 10-month period in a civil lawsuit, a defendant can file/serve a notice reflecting the lack of record activity. If nothing is filed in the 60 days thereafter, the defendant can seek dismissal of the case, without prejudice, for failure to prosecute. At that point, the plaintiff’s burden to keep the case pending is pretty high – it requires a showing of “good cause,” which case law loosely defines as a “really darn good reason why they didn’t do anything to prosecute the case for a year.”
I recently brought one of these motions in a foreclosure case in Marion County. The judge declined to dismiss the case and, oddly, would not even give me a hearing on the motion. Today, the appellate court reversed that ruling, explaining that a hearing is required and if the bank cannot show the requisite “good cause” then the case must be dismissed.
Here’s my Initial Brief, the bank’s Answer Brief, and my Reply Brief … and here’s the full text of the Fifth District’s decision:
On May 25, 2007, Appellants gave a note and mortgage in the amount of $156,000 to Appellees. The mortgage went into default on October 1, 2009, and on March 5, 2010, foreclosure was filed. Appellees sought to foreclose on the Garcias’ property. For several months, litigation proceeded as normal and then, suddenly, all activity ceased. Nothing transpired between November 12, 2010, and November 7, 2011, when Appellants filed a notice of intent to dismiss for lack of prosecution, which was mailed to Appellees on November 4, 2011. Nothing more was filed in the sixty days following the notice of intent until January 6, 2012, when Appellants filed their motion to dismiss for lack of prosecution, which was mailed to Appellees on January 4, 2012. On January 17, 2012, Appellees filed a motion to amend their complaint. On February 13, 2012, the court entered its order dismissing Appellee’s complaint “without prejudice” and, in the same order, granting Appellee’s motion to amend. On June 7, 2012, the court acknowledged in its order that Appellee’s complaint had been dismissed for failure to prosecute.
The issue on appeal is whether the court erred in granting the leave to amend. Florida Rule of Civil Procedure 1.420(e) reads:
In all actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 10 months, and no order staying the action has been issued nor stipulation for stay approved by the court, any interested person, whether a party to the action or not, the court, or the clerk of the court may serve notice to all parties that no such activity has occurred. If no such record activity has occurred within the 10 months immediately preceding the service of such notice, and no record activity occurs within the 60 days immediately following the service of such notice, and if no stay was issued or approved prior to the expiration of such 60-day period, the action shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.
Clearly, Appellees filed nothing within a ten-month period. After they received notice from Appellants, they filed nothing within the sixty-day period. The court, apparently acting on its own, dismissed Appellees’ complaint without prejudice and granted Appellees’ motion to amend. There was, therefore, no noticed hearing to start the five-day clock to show cause. Appellees’ only issue is whether the court properly granted the motion to amend. We hold, however, that during the throes of rule 1.420(e), when it is time to show cause, rule 1.190(a), authorizing amendment of pleadings, is inapplicable. In any event, the court misinterpreted the rule. Rule 1.420(e) does not authorize the dismissal of a complaint; it requires the dismissal of the action. Our only appropriate action is to reverse and remand with instructions for the court to conduct a good-cause hearing, and if none can be shown, dismiss the action. Appellees’ remedy then will be to file a new action for those claims not barred by the statute of limitations. See Singleton v. Greymar Assocs., 882 So. 2d 1004 (Fla. 2004); U.S. Bank Nat’l Ass’n v. Bartram, 140 So. 3d 1007 (Fla. 5th DCA 2014).
REVERSED and REMANDED with instructions.
ORFINGER, LAWSON, JJ., and HARRIS, C.M., Senior Judge, concur.
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The Palm Beach Post just endorsed Jessica Ticktin for judge over incumbent judge Diana Lewis. (I’ve copied and pasted the article, below.) This is a significant step in Ticktin’s campaign to unseat Judge Lewis. Lest you think this matters only to those consumers in Palm Beach County, think again. Jessica Ticktin winning this election will make a *huge* statement to all judges throughout Florida. Everyone will realize homeowners and consumer advocates have a voice. We matter. We will be heard. We cannot be ignored. We are force to be reckoned with.
Here’s the article …
August 11, 2014
Florida’s 15th Judicial Circuit — encompassing Palm Beach County — has become one of the state’s busiest over the past few years, led largely by messy foreclosures and family court issues. In Group 14, the battle is over whether Palm Beach County Circuit Judge Diana Lewis deserves a third term. Challenger Jessica Ticktin, a partner at the Ticktin Law Group, says no. And we agree.
Ticktin, unlike Lewis, says she would relish the opportunity to work in foreclosure and family law — both divisions of judicial need. She’s been a practicing attorney for more than 10 years. Before she became a partner in her father’s Deerfield Beach law firm, Ticktin was the firm’s managing partner, overseeing 24 attorneys and 4,500 cases in 10 offices statewide.
Before the past 12 years on the bench, Lewis had been practicing mostly as a corporate defense attorney for about 20 years. But the judge’s issues are not about her experience. The Post, in 2008, recommended the then-one-term jurist have another six years to change what local lawyers described as a condescending and hostile courtroom demeanor. According to a 2013 poll by the Palm Beach County Bar Association, little has changed. In fact, it appears her courtroom reputation is worse.
Indeed, poll after biannual poll of local lawyers shows Lewis scoring poorly in various areas. For example, that 2013 poll has 46 percent of 216 county Bar attorneys giving Lewis a “needs improvement” in the area of impartiality. In 2007, that number was 34 percent. Lewis writes the poll results off as a small sample of some 6,500 attorneys in the county, and the fact that in any case “you can only make 50 percent of the people happy.” And, just as Lewis’ challenger did in 2008, Ticktin raises the issue of the judge’s reversals on appeal. According to legal research firm Westlaw, Lewis’ reversal rate is about 41 percent on 165 cases that were appealed.
To be sure, working the court’s foreclosure division can tax any jurist’s patience. Frustrated homeowners can cycle through as many as three times a year, and judges are under pressure to clear cases in two years. Moreover, Lewis makes no secret of the fact that she’d like to get out of the high-octane division as soon as possible.
However, a judge has to be able to work with attorneys to get the best outcome for people who come before them. And while polls and opinions may be subjective and anecdotal, the sheer volume is too much to ignore. Another six years isn’t likely to change that. Ticktin’s experience and demeanor make her a more than capable replacement.
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