Archive for January 31st, 2012

Setting a Foreclosure Case for Trial

Did you know the banks and their lawyers don’t want to have to go to trial in foreclosure cases?  It’s not exactly breaking news, I realize.  (Recall, for instance, this post, where I showed that just 198 trials took place in the entire state of Florida in a recent, one-year period.)  In fact, those of us in the industry have known this for some time, i.e. banks want to win by default and/or summary judgment, not by trial in contested cases against lawyers who are asserting valid objections each step of the way.  

Given the volume of foreclosure cases in Florida, the increasing number of homeowners defending those cases, and the banks’ aversion to trial, our court system is inundated with foreclosure cases.  Personally, I don’t think this is a problem – if the banks don’t want to prosecute their cases, that’s their prerogative.  However, in an attempt to push through the logjam, I’ve seen some judges take measures which, in any other time, would be considered quite unusual.  One local judge, for instance, has stated setting cases for trial sua sponte, one after another, regardless of how the parties feel about it.  This begs the question – what is the appropriate way to set a case for trial?

I’ve blogged about this issue for some time now, including here and here, so at this point we should all know the basics of setting a case for trial, as set forth in Fla.R.Civ.P. 1.440.  First, a case can’t be set for trial unless it is “at issue,” meaning the defendant has filed an Answer to the operative Complaint and no there are no pending motions directed to the pleadings.  Second, when the court sets a case for trial, it must provide at least 30 days notice; anything less is insufficient.  The two cases which I love to cite for these propositions are Bennett v. Continental Chemicals, Inc., 492 So. 2d 724 (Fla. 1st DCA 1986) (en banc) and Precision Constructors, Inc. v. Valtec Constr. Corp., 825 So. 2d 1062 (Fla. 3d DCA 2002).  Notably, in both cases, the Florida appellate court reversed a final judgment not because there was any substantive error at trial, but because the trial had been set prematurely, in violation of Rule 1.440.  That’s how big of a deal this is – it doesn’t matter if the trial was done correctly if it was set prematurely. 

I’m confident the local judge who has started setting cases for trial en masse, sua sponte, is aware of these requirements.  In fact, I sincerely believe she tries to follow the law, and she has refrained from setting cases for trial that are not “at issue,” which is obviously a good thing.  The question that has arisen from her rulings, in my view, is whether a judge can set a case for trial on his/her own, sua sponte, when the case has not been noticed for trial. 

By way of example, and to illustrate the situation at hand, I recently had a hearing before this judge on a Motion to Substitute Party Plaintiff.  The issue of trial was not set for hearing, and no party had filed a Notice for Trial, so I wasn’t even thinking about a trial at this hearing.  Heck, the plaintiff’s lawyers were trying to change the identity of the plaintiff, so getting proper pleadings in place, and taking discovery regarding the new plaintiff, was paramount in my mind, not trial.  Anyway, at the hearing, immediately after she allowed the new plaintiff to join the case, the judge decided to set the case for trial with, quite frankly, limited input from the parties.  I objected, but it was clear to me that the court was following a procedure where foreclosure cases were being set for trial. 

Respectfully, I’m troubled at this sequence of events. 

Any time I go into a hearing, I expect that the only matter(s) being argued are those which have been noticed for hearing.  This is fairly basic, so a Court bringing up a matter like this, sua sponte, is the last thing I’d expect at a hearing on a simple motion.  I could perhaps understand this better if the plaintiff had filed a Notice for Trial.  But for a court to set a case for trial, totally on its own, where the case was not even noticed for trial and the issue of trial wasn’t set for hearing … I just don’t see that.  In my case, for example, I think I should get to amend my pleadings and take discovery about this new plaintiff before a trial is set. 

I believe the case law supports my view that a “Notice for Trial” must be filed before a judge can set a case for trial.  Rule 1.440 has three subsections, and each one is a step in a three-step process.  Once a case is “at issue” (subsection (a)), then it may be noticed for trial (subsection (b)), and then the court may set it for trial (subsection (c)).   As I read the cases which cite Rule 1.440, I believe they all support this interpretation.  See Genuine Parts Co. v. Parsons, 917 So. 2d 419 (Fla. 4th DCA 2006) (reversing final judgment where the court set the case for trial without a notice for trial having been filed); Garcia v. Lincare, Inc., 906 So. 2d 1268 (Fla. 5th DCA 2005) (“Procedural readiness for trial differs from actual readiness for trial.  It is the former, coupled with a properly filed ‘Notice for Trial,’ that imposes on the court the obligation to set a trial date.”); Hartford Fire Ins. Co. v. Controltec, Inc., 561 So. 2d 1334 (Fla. 5th DCA 1990) (“The rule requires the filing of a notice of trial for review by the court in order to determine whether the cause is ready for trial”); Balboa Ins. Co. v. Shores of Madeira, Inc., 457 So. 2d 596 (Fla. 2d DCA 1984) (“Once a proper notice of trial has been filed, the duty is on the court to set the cause for trial.”).  

This may sound like procedural mumbo jumbo, and I suppose to some extent it is.  That said, when trial is set, the substantive rights of the parties are being adjudicated (or about to be adjudicated), so it’s important to follow the procedure correctly.  As the en banc First District explained in Bennett, “strict compliance with Rule 1.440 is mandatory.”  Using my example above, if a Notice for Trial had been filed, I would have had a chance to object on the basis that trial was premature because the plaintiff had just changed.  At minimum, even if it was time to set the case for trial, I could have begun preparing the file accordingly (by completing discovery or amending pleadings as necessary).  In my view, all litigants are entitled to this right, and to sua sponte deprive them of that right is contrary to law. 

Reasonable minds can disagree, and this is certainly not the worst thing I’ve seen in foreclosure court.  That said, I’d love to see legal authority that allows a judge to set a case for trial, sua sponte, when a Notice for Trial has not been filed.  In light of the cases I’ve cited above, I just don’t think it’s possible.

Mark Stopa

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