Lee County – It’s Time to Change your Foreclosure Procedures
I’ve spokenly openly and candidly on this blog on many occasions about the need to change the perverse judicial procedures that permeate some of our courtrooms in Florida. Nothing has gotten my gander up more in this regard than the perverse judicial procedures employed in Lee County, Florida (the Twentieth Judicial Circuit, based in Fort Myers). I realize “perverse” is a strong word, but that’s the only word that comes to mind for what’s happening in Ft. Myers.
Here are the facts. In foreclosure lawsuits in Ft. Myers, judges (typically Judge Carlin) routinely enter an Order setting a docket sounding, right after the case is filed. These Orders are entered sua sponte (meaning on the court’s own initiative, without having been requested by either party), and they specifically provide that summary judgment will be entered at that hearing, failing which the case “will” be set for trial. These Orders also impose a discovery cut-off, usually the day of that hearing, meaning the parties cannot take discovery thereafter. Essentially, the judges have taken it upon themselves to litigate an entire foreclosure lawsuit in the span of a few months.
Here’s the first problem. A case cannot be set for trial until it is “at issue,” under Fla.R.Civ.P. 1.440. This means that if a motion to dismiss is outstanding, and the homeowner has not filed an Answer, the case cannot be set for trial. See Precision Constructors, Inc. v. Valtec Constr. Corp., 825 So. 2d 1062 (Fla. 3d DCA 2002); Bennett v. Continental Chemicals, Inc., 492 So. 2d 724 (Fla. 1st DCA 1986) (en banc). (En Banc means that every judge on the First District joined in the decision – a rarity in appellate cases.) In Ft. Myers, the judges routinely find the case is “at issue” and ready to be set for trial, even when the Motion to Dismiss has yet to be heard – a very basic legal error.
In my eyes, this is more than just a technical problem. When a judge is sua sponte saying a case will be set for trial, even though the Motion to Dismiss has yet to be heard, he’s making it clear that he’s already decided he’s going to deny the Motion to Dismiss. Think about it this way. If a Motion to Dismiss is granted, then, unless leave to amend is granted, there is no trial at all! By setting a trial before the motion to dismiss is heard, the Ft. Myers judges are foreclosing the possibility that the Motion to Dismiss would be granted - without having heard the Motion to Dismiss on the merits! Under basic law, judges cannot pre-judge a case in this manner.
I’m also deeply troubled at how these Orders impose a two-month period to conduct discovery. Respectfully, that’s grossly inadequate – so much so that it’s insulting. Respectfully, I find that offensive. You see, discovery often takes many months. You have initial discovery, then follow-up discovery, sometimes with hearings to compel the other side to produce discovery. At minimum, parties would need six months to take discovery in a typical civil case – and that would be a bare minimum, if we were rushing through it. Also, a defendant should not be forced to complete discovery prior to a determination whether the Complaint states a cause of action. After all, if an Amended Complaint is required, the defendant is being forced to complete discovery prior to the date an Amended Complaint is even served. How can a defendant litigate a case without getting discovery on the operative complaint? You can’t, and that’s precisely the point – the judges have predetermined that they won’t require an Amended Complaint even without having heard the Motion to Dismiss. The entire approach is patently ridiculous, but that’s what the judges in Lee County are doing.
It’s also unfair that these judges are routinely setting these hearings without clearing the date yet refusing phone appearances. I’ve discussed that issue before vis a vis Orange County, so let’s summarize like this – it’s clear to me that the judges are trying to make it harder for foreclosure defense attorneys to represent homeowners and defend foreclosure cases. Personally, I won’t stand for that. Foreclosure is a huge issue in a homeowner’s life. Homeowners are entitled to counsel. Widespread conduct that violates the law and is aimed at making it harder to represent homeowners is intolerable in my book.
Recently, I was so irritated by this procedure (and the unfairness that results from it) that I filed a Motion to Disqualify Judge Carlin. He denied it, so I am filing this Petition for Writ of Prohibition in the Second District.
I’m very confident this Petition will be granted. In fact, this won’t be the first time I’ve convinced the Second District to grant a Writ of Prohibition when Judge Carlin inappropriately denied a well-taken Motion to Disqualify him. My hope, though, is much bigger than this one case. I’m concerned about the “big picture” in Lee County. To illustrate, I urge you to check out the portion of the Petition for Writ of Prohibition (near the end) that I labeled “Analysis: The Big Picture.” My point, simply, is this:
The procedures being utilized in foreclosure cases in Lee County are perverse, unlawful, and reflect the courts’ obvious bias against homeowners. It’s time the Lee County change their procedures, even if it means the Second District tells them to do so.
By posting this blog in this manner, I realize I’m opening myself up to criticism. That’s not ideal, but at this point I see little alternative. Also, please realize this – I wouldn’t be writing in this tone unless I was 100% confident I am that the procedures being utilized in Lee County are wrong. The law is clear – judges can’t set trial and a two-month discovery cutoff when motions to dismiss are outstanding. It’s time someone stood up and told them to stop. Also, I’m hopeful that other litigants and attorneys reading this will agree with me and push these same arguments. It’s past time that the judges in Ft. Myers started treating homeowners fairly, even in foreclosure cases.
Mark Stopawww.stayinmyhome.com
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Well said, Mark. This bias against homeowners should scare the hell out of anyone living in or considering relocating into Lee County. The attitude displayed by the judiciary in this county, and in other counties as well, sends a strong message that it may be impossible to obtain fairness, impartiality or even justice if one ever has to entrust the fate of any dispute into the hands of these judges. There can be no justification for this conduct.
Beyond the blinding speed at which homeowners are dispossessed of their real property by these improper proceedings another huge problem is the irreversible loss of confidence in the judiciary to fairly administer and dispense justice. It is apparent that many judges have elected to align themselves with the very people and institutions that have brought the U.S. economy to its knees. It’s one thing to be mad at the bankers and Wall Street for what they have done, yet quite another to witness significant and wholesale judicial support for these bad guy bankers/investors while simultaneously throwing victims of the scams under the bus.
Thank you for continuing to fight and voicing your views as an advocate for the homeowners. No, it is not a popular position to take especially within the eyes of Lee County judiciary. However, I believe that when the truth of their motivations for adopting this behavior is finally revealed it will bring the issue full circle to the question about why others who witnessed this outrageous conduct were unwilling to come forward and call it for what it is. Obviously, having called it for what it is you will not be a part of that club – the ones who stood silent and watched this all happen while shaking their heads in disbelief. I admire your courage and candor. Keep up the good work, Mark.
To attorneys standing on the sidelines and watching silently it is time to jump in and protect the integrity of the greatest system of justice on Earth – one that is now suffering from a severe loss of confidence and credibility due to departures from over 100 years of sound jurisprudence by a handful of rogue judges.
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Your not suing the judges why?
It might be professional suicide to rock the boat but someone has to defend due process.
From what your describing is the are basically denying any ability to demurrer to the claim/complaint. The court is refusing to examine it’s own jurisdiction.Well, they are doing so at their own peril.
There is no immunity for violations of due process.
They are simply trespassers.
The banks are using a judge as their proxy because people are afraid to take them to task.
What do we do when TRUST is irrevocably broken?? I’m not talking about the trusts that r stealing the americans assets at record speeds either. How can we ever TRUST a bank to give us the mortgage product we signed up for? How can we ever TRUST our justice system to ever look out for WE the PEOPLE and NOT just WE the banks who brought massive fraud not only against the american people but our court systems, our clerks filing systems, our credit (is all over the world-literally) and even “our” congress and senate? How can we ever believe anything they say or do? Its all been only serving the bankers and their subsideraries. How is this allowed to continue to happen— or IS everyone that corrupt? How do we ever TRUST again? How will we ever believe in a system that chopped up all of our mortgages into pieces and sold them without authority and got insurance coverages to boot? How in the world will we ever be able to trust any one of authority ever again?? How!? So perplexed, disgusted and disappointed in our entire system….where do we possibly go from here??? Debi P. Boynton bch florida
Two awesome posts! I just can’t believe that somehow I’m not considered a credible witness of the whole fraud scandal caused by the likes of the trustees-attys-judges involved in these cases nationally. This calls the whole judiciary into effect for state/federal courts/state sup courts! I COMMEND ALL OF THE GREAT ATTORNEYS representing homeowners/investors alike….
Thanks for restoring my faith in the justice system. That I’m not INSANE means everything at this point!
Pingback: Mark Stopa to Lee County – It’s Time to Change your Foreclosure Procedures
A very tough row to hoe. Myself, and many others, are glad you’ve picked up the tool and set to the task.
For the record I’m in a different state and the courts aren’t behaving in ways that differ substantially. Frightening really.
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Mr. Stopa,
Have you been able to set your Motion to Dismiss Judge Carlin for a hearing? Please continue to keep your readers abreast of this issue. We are involved with a matter in the same court, different judge and have been the recipients of judicial abuse. In our case the attorney representing the bank and myself pro se has not followed the published rules of procedure for the 20th circuit and has taken actions unilaterally. The judge has ignored our complaints to the court regarding this abuse of process. Thank you for your time.
Michael Stein
Michael, A Motion to Disqualify a judge is not something that is set for hearing. When I filed the motion, I submitted it to Judge Carlin, who denied it without a hearing. That sounds bad, but that’s how the law works on DQ motions – the judge reads the motion, accepts the facts therein as true, and rules if it is legally sufficient to require disqualification. Judge Carlin did that, and denied the motion as legally insufficient, and I think he’s wrong. That’s why I filed a petition for writ of prohibition (essentially an appeal) in the Second District Court of Appeal. There is no hearing there, either – I just submit the brief and the appellate court will rule on the written papers.
This is a complicated process, which is part of the reason, I suspect, that nobody has gotten this far on this issue yet. I’ll certainly keep you posted, as I’m clearly passionate about the impropriety of the docket-sounding orders in Lee County.
Good luck
Mark
Judge Carlin should be disbarred! He is biased beyond belief and bought buy the banks!! Investigations should begin concerning the Judges in the rocket docket defunk system in Lee county as to pay offs by the banks – don’t forget good ol’ Charlie Green in the banks back pockets to.
( all my opinion but none the less seems extremely strange homeowners are all deadbeats and deserve no justice from the fraud poured on the homeowner by banksters and judges )
Most the people going through foreclosure in lee county I’m sure Carlin remembers some of their names because his wife was Vice Principal of an elementary school where I’m sure allot of these people went!
WHAT A DISGRACE THE JUDICIAL SYSTEM IS! IN LEE COUNTY FL!
If you want to win against this fraud in Lee county FL be advised, call Mark Stopa lawfirm!
Mark, thanks for doing this. I really hope this puts an end to this docket sounding junk that Judge Carlin has dreamed up. It is an extreme waste of time and money. And like you have said, I am sure that one of Carlin’s motivations behind it was to make it as difficult as possible to defend cases.
Mr. Stopa,
I am not a homeowner, just an average guy who is educating himself about this foreclosure/financial crisis we are in. I just want to sincerely thank you for doing what you are doing. I hope you can maintain the energy to keep at it. It makes me hopeful to know about people like you.
Tony Savoie
Boston, MA
Thanks, Tony. Getting comments like this helps give me the energy/drive to keep going.
Judge Carlin is an asshole.
He rocket docketed me in March 2009.
I just got the bank to vacate that order and judgment due to Jeffrey Stephan
being the one who “signed” affidavits in support of.
Been in my home for 40 months, no mortgage, due to $20,000 theft of deposit
at closing in 2005.Paid until fraud discovered in late 2007.
Been Pro Se for years,facts enjoin the law.Get your facts straight, know the law, and then shove it up the ass and down the throats of your enemy.
If you are not “Irish” enough to fight your own battles, hire a lawyer.
Otherwise, get the fuck out of my way, I will run you over.
I am also Pro Se and had my case dismissed, due to Jeffrey Stephan and his Affadavits of Amounts due and Owing and he also signed my Assignment of Mortgage as VP of MERS. So, happy I should be right? Well, now the judge has NOT signed the final order or the Final Disposition Form which I submitted to the court on 11/18/10. So I get to keep showing up for Docket Soundings because you don’t come off the Docket until the case is closed. Without the final disposition or the orders being signed by the judge, my case is in limbo. So now at my next docket sounding, I have to prove to the Magistrate that my case was dismissed. Had I not had a Court Reporter with me that day, I would have NO PROOF of what the outcome of my case was. Best advice I ever received was bring a Court Reporter. It’s money very well spent and may save your case.
I have been fighting an illegal foreclosure for 20 months. Even my illegal attorney sued me to get off my case and lost since I had paid in full. But now I have just gotten a letter from the illegal bank attornies Shapiro and Fishbon to reschedule sale of my home. Help My attorney who has been paid has not returned any phone calls and really don’t have much money for another attorney. Thanks, Vera Holthaus. I also do not remember the name of my judge, but I was not even allowed to speak and my stupid attorney did not even get one minute in court and mediation that was court ordered wasn’t with the lender and they tried to record me by phone. Everything in my morgages are corrupt or surprisingly lost. Any suggestions,Vera 239-777-8747 Thanks
Very unfair not to even enter a word in my defense with all these illegal papers and most surprisingly lost. Need help before a sale date is set by the illegal law firm of Shapiro and Fishbon and of course the illegal banks, trusts and mercs. I wasn’t even sued by the right lender and now don’t even know who owns my home. Help, Vera Holthaus 239-777-8747
VERA HOLTHAUS AGAIN. SALE DATE SET FOR JAN.12. I SEE BANKRUPTCY AS ONLY ANSWER AND ASK FOR A STAY WHILE I MAKE WHOEVER OWNS MY PROPERTY OR NOT PAY ANYONE ON 2 HOMES. INTERESTED, THE ATTORNEY WHO CLAIMED TO BE A FORECLOSURE ATTORNEY IS SURPRISE A CRIMINAL ATTORNEY WITH LESS KNOWLEDGE THEN MYSELF A REAL ESTATE BROKER. IF NOT WHO DO YOU RECOMMEND? OR WHAT DO YOU RECOMMEND I DO AGAINST SHAPIRO AND FISHMAN, THE ATTORNEY I PAID IN FULL UP FRONT WHO SUED ME TO GET OFF MY TWO HOMES WHICH HE LOST BUT HE WON’T TAKE PHONE CALLS AND DOESN’T KNOW WHAT TO DO ANYWAY. HE ALSO ALREADY LOST MY HOME IN NORTH CAROLINA SINCE HE TOOK THE MONEY BUT WASNOT LICENESED THERE,SO I ENDED UP BEING MY OWN ATTORNEY AND WE WON BUT THAT BANK HIRED ATTORNEY LIED AND THE JUDGE WAS VERY AGAINST FLORIDA PEOPLE AND I THINK HE WAS ALREADY BOUGHT AND SOLD, BUT AT LEAST I GOT TO TALK AT THAT CASE UNLIKE MY HOME IN LEE COUNTY. HOW CAN YOU VIOLATE HUNDREDS OF YEARS OF LAND TRANSFERS BECAUSE OF MERS AND ROB COUNTIES OF BILLIONS OF DOLLARS WI TH NO TRANSFER FEES AND NO TRANSPARETY ON WEB PAGE?
HI VERA AGAIN PHONE 239-777-8747 go TO C SPAN AND WATCH WHAT HAPPENED ON DEC 15 WITH MORGAGE FRAUD INVESTIGATION WITH CONGRESS AND WATCH THE WOMEN FROM MICHIGAN THEY REALLY LET THEM KNOW WHAT FORECLOSURE DOES TO A FAMILY AND WE ARE NOT ALL LOSERS AND DESERVE THE AMERICAN DREAM AND LET CONGRESS KNOW THAT THE BANKS ARE NOT GRANTING ANY MODIFICATIONS AND WON’T EVEN WORK WITH THE HOMEOWNER OR THEIR ATTORNEY. ALSO WHO OWNS OUR HOMES?
Why haven’t the DOJ (Department of Justice) indicted BOA (Bank of America) for the crime of uttering??I have read the law and I also beleive that BOA should be prosecuted under the RICO statue. THey sure have uttered false docs that they swore were originals before the courts and continued to do so that to me makes a illegal enterprise and should be prosecuted. Why hasn’t the Atty Gen of Florida at least entertained the idea of prosecution??Oh I forgot BOA probably made a big donation as they did to the OBAMA campaign. Hundreds of thousands if not millions give to Obama campaign. Now you knwo why the little guy gets screwed all the time…
Could you please not publish my legal name as it could jeopardize the job I have? Thank you.
I, too had a home foreclosed in Lee County. Am a real estate paralegal and when all this mess hit, lost my job, etc. BEGGED my lender to help me keep my home. Had lots of equity in my home, and the lender was not the slightest bit interested in helping. I ultimately lost the home, and even though I look about 50, I am almost 70, have no hope of ever being priviledged to own a home again, or have a decent job again.. I have been crushed in every possible way. I am working as a receptionist at a law firm, and while I get paid (almost) to be a receptionist, I do about 3/4 of the work a paralegal does. Doesn’t seem fair that any of this has happened, but it has. I just hope that you and your website can help others. A paralegal should not be so helpless in a foreclosure, but I was. The paperwork makes no sense, the harrassment is devastating, and then one is totally disenfranchised. Please continue to help others. It gives me hope that not everyone will go through what I have been through, and I would be eternally grateful if others could be spared this kin of grief and agony.
By the way, does anyone out there need a really super-dooper receptionist who will work her tail off for you?
I would like to not have my name published as I work in Government. Thank you
I have just received notice of an Order Setting Case for Docket Sounding and Order of Referral to General Magistrate. I have been working with the bank since the summer and as recently as yesterday have received paperwork regarding a loan modification and they are working on it. Why would I receive this if the bank is working with me? I unfortunately do not have the funds for an attorney but would love any information someone could give me on this. How can the courts possibly push through a foreclosure if the banks dont want to? Lee County is ridiculous….
Just had a foreclosure trial before Judge Carlin. The Plaintiff submitted an altered note, assignment and other evidence…the day of trial…with no prior discovery to me or my attorney despite having been repeatedly requested. All in violation of Florida Rules of Civil Procedure. He even told one of my attorneys to sit down and shut up…because it wasn’t fair to the Plaintiff that I had two attorney’s and the Bank only one. Yep…I lost. Yep…I’m appealing. This man has no business being on the Bench! Due Process means nothing to him. Keep up the fight!
I’ve heard and seen so many bad stories about Judge Carlin. Aside from continuing the fight, remember that judges are not judges as a matter of right – they are elected officials. It wouldn’t surprise me in the slightest to see Judge Carlin and other judges in Lee not get voted for re-election.
My situation does NOT have anything to do with Foreclosures, but at the same time does. March 24, 2011 I appeared in front of Judge Hugh Starnes for an Injunction Hearing on my Daughters mother, whom physically attacked her drunk. We had all documentation and proof of this. Starnes would not let me speak, instantly shut me down. I said, “So your telling me, my daughter being attacked is not a Domestic Violence issue?” He said, “Yes, that is what Im saying.” I said, “Oh imagine that!” Then he stormed off his bench! These are all rednecks that run the government in SW Florida, and do whatever they want to people. Starnes is deeply involved in a Cover up, and has been under investigation for at least 5 years.
I would also like to note, that the Clerk of Courts page under this case, shows that I “Voluntarily Dismissed this, after Hearing” Totaly lies and collusion with Charlie Green Clerk of Court
Mark, living in Charlotte County (part of 20th) is all the same stuff you mention just different names. While Florida as a whole has a bad reputation, it is quite well known that the 20th is the worst of the worst. I guess most of my life, I had a belief that corruption existed, but was rare, and most likely not in “my back yard” so to speak. Yikes, was I ever wrong. Wow, I wish more people would go to their local courthouse and just observe. You see constant violations of law by attorneys, judges and bailiffs, and for anyone that cares about future generations, if it is not stopped, and stopped very soon, it will snowball to even more perverse than it already is now! Your right, it MUST be stopped, and stopped RIGHT NOW!!!
I was wondering how many others had been affected by the incompetence of Judge Carlin. I was both saddened and comforted by reading your web site. My situation was a divorce proceeding that educated me to the deplorable conditions in our local court. Unfortunately, I discovered that Judge Carlin makes “snap” decisions and doesn’t bother to obtain factual information.
I cross appealed his Judgment pro se and won. The Judgment was reversed and remanded back to Carlin. He denied me the right to a new trial where I would be able to introduce facts and findings as required by the Appeal Court. Instead he allowed only briefs to be submitted and then did what he wanted. I have just received a copy of Carlin’s new judgment and it is worse than the first one!
I have documented proof of Judge Carlin’s abuse of the law. Would this be helpful to you? By the way, I will be filing an appeal of this last judgment.
Carlin is miserable and needs to go. It would take 3 hours to type what he’s doing to me. Essentially, he is saying someone not on my deed or the mortgage has the right to force me to sell my homesteaded home. Nobody can understand his order in my case except the opposing attorney who exchange winks and glances throughout the hearing.
What we have here is a rogue judge. A group needs to be formed, funding collected and an attempt made to remove him asap. I can’t imagine the unlawful suffering he has created while on the bench.