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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I’m rarely the type to get too political or call others to action – I generally leave that stuff to my friend and colleague, Matt Weidner. As a result, my willingness to write this blog should tell you this is important to me.
Jessica Ticktin is running for judge in Palm Beach County, trying to unseat incumbent Judge Diana Lewis. Now … Florida Bar rules prohibit me from disparaging Judge Lewis, and I’m not about to go there. Nothing here is intended to disparage Judge Lewis in any way. So let’s be clear: I have absolutely nothing bad to say about Judge Lewis. Rather, quite simply, I very much – *very much* – want Jessica Ticktin to win this race, defeat Judge Lewis at the polls, and become judge.
Homeowners, consumer advocates, and anyone else who resides in Palm Beach County … if my opinion matters to you at all, heed my advice on this one … vote for Jessica Ticktin. http://ticktinforjudge.com/ Tell your friends, neighbors, family members, whoever – just go vote. I truly believe Jessica Ticktin is the best choice for Palm Beach County.
Lest you think this doesn’t matter because you’re not in Palm Beach, think again. This is our chance to show *everyone* that our voices will be heard. Think of it this way … you don’t think every judge in Florida will take notice if Judge Lewis is unseated (with the help of a push from consumer advocates)?
While you’re at it, my Pinellas County friends can go ahead and vote for Judge Bruce Boyer, Ken Lark, and Brian Battaglia.
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Ever wonder what it’s like to be a foreclosure defense lawyer? My experience this morning sums it up rather well.
I argued a homeowner’s motion for summary judgment. It have the first case on the docket, so the courtroom is packed. The judge (before whom I’ve never appeared) denies my motion (a motion I’ve won many other times in other cases) without explanation. I ask the judge to identify the facts in dispute for trial, which is perfectly appropriate to do, since Fla.R.Civ.P. 1.510 contemplates that as a way to narrow the issues for trial, (but I’m really doing so partly to let the judge know that I know he knows there are no facts in dispute (and my motion should have been granted)).
The judge threatens to hold me in contempt and pushes the rest of my hearings to the end of the docket. Whoah. (Admittedly, I might sometimes deserve that, but I didn’t this morning) …
The end of the docket arrives. I’m up. The judge apologizes, explains at length, in open court, how “brilliant” I am and how I remind him of his own son. The judge then makes it clear he will take whatever time is necessary for the arguments. Wow. Complete 180, totally unsolicited. So I argue the motions in the rest of my cases. The judge denies them all, again with no explanation.
I know I post about the victories sometimes, but this, more than anything, is what my life is like as a foreclosure defense lawyer. You’re always teetering on the edge of contempt (even when you feel like you’ve done nothing wrong), and when you don’t win – even on arguments you’ve won many other times - there’s often no explanation why.
It doesn’t have to be this way, folks. Part of the problem is that this judge had never heard any of my arguments before, since nobody else had ever made them. Keep pushing. Keep fighting. We have to keep spreading the word on the many, viable defenses that exist to foreclosure.
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Do you know how and when to make legal arguments in such a way that those arguments are preserved for appeal and not deemed waived? It’s not nearly as easy as you might think.
Take a look at this Initial Brief. This appeal emanated from an Order granting summary judgment in one of my cases. I won, and the foreclosure case was dismissed. The bank appealed, raising, essentially, two arguments. First, the bank contends summary judgment was improper because the hearing took place with less than 20 days’ notice, in violation of Fla.R.Civ.P. 1.510. Second, it asserts summary judgment should not have been granted because the basis for the judge’s ruling, a defective paragraph 22 letter, was not specified in the written motion, another violation of Fla.R.Civ.P. 1.510.
In many ways, the bank is probably right. I certainly agree the two legal propositions it makes are an accurate representation of the law. Summary judgment motions can’t be heard without 20 days’ notice, and the motion must specifically set forth the grounds therefor. See Fla.R.Civ.P. 1.510. Nonetheless, I’m confident I’m going to win this appeal because the bank waived these arguments and did not preserve them. In other words, the bank can’t win an appeal based on these alleged procedural irregularities when it did not assert those arguments at the right time, in the right way.
Here, check out this Answer Brief. Do you see all of the procedural traps? All of the nuanced ways a litigant can lose a case by not presenting an argument at the right time or in the right way? Bear in mind – this bank had lawyers, and, in my view, they still did it wrong. Do you really think you could avoid these pitfalls on your own?
Finding a competent counsel to help in cases like this – as opposed to handling it yourself – is really no different than hiring a doctor to perform surgery on your broken arm. You’d never even think of operating on yourself. Make sure you have that same mentality with your foreclosure case. And if you don’t live near me (or in Florida at all), there are competent counsel out there – you just have to find them.
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This one’s for you, Tony – and for everyone else trying to find ways to beat those evil banksters.
Homeowners can win a foreclosure trial in a variety of ways. One of my favorites is when the bank is unable to prove its case because it is unable to get information from the prior servicer into evidence. Let me explain.
By the time a foreclosure case gets to trial, it’s rare that the plaintiff prosecuting the case was the same bank that loaned the money. Typically, these loans have changed hands many times by the time trial rolls around. Often, the servicer of the loans change even from the time the foreclosure lawsuit was first filed. Even if you have no legal training, it’s not hard to imagine the evidentiary problems this poses for plaintiffs at a foreclosure trial.
For example, suppose Bank of America was the servicer at the time the paragraph 22 letter was sent, but Nationstar is the servicer at the time of trial. In a normal lawsuit, when the plaintiff goes to trial, it would subpoena any third-party witnesses to trial (e.g. a records custodian or employee of Bank of America) to ensure they can testify. In foreclosure-world, though, that virtually never happens. If Nationstar is the Plaintiff/servicer, you can almost rest assured that one witness will come to trial – an employee of Nationstar (and by “employee,” I mean someone whose sole job entails robo-perjuring, I mean testifying, at foreclosure trials). Well, just think about it. If the only witness at trial is from Nationstar, but Bank of America is the company that allegedly sent the paragraph 22 letter, then how can the employee of Nationstar testify that the paragraph 22 letter was sent? “I work for Nationstar, and I’ve never worked for Bank of America, but I’m here today under oath to say that Bank of America sent this letter.” Huh?
Likewise, if the payment history was a Bank of America payment history up until the time the loan was service transferred to Nationstar, then how can the Nationstar witness testify about the payment history for a company that he/she never worked for?
There is no easy answer to these questions. This is, frankly, one of the most hotly-contested legal issues in foreclosure-world nowadays. To illustrate, take a look at Hunter v. Aurora Loan Svcs., LLC, 137 So. 3d 570 (Fla. 1st DCA 2014). In that case, Florida’s First District Court of Appeal reversed a final judgment of foreclosure, finding the bank was unable to properly admit into evidence business records from the prior servicer. Here’s the portion of that decision I highlight for judges when I take this case to trial:
Here, Mr. Martin’s testimony failed to establish the necessary foundation for admitting the Account Balance Report and the consolidated notes log into evidence under the business records exception. Mr. Martin was neither a current nor former employee of MortgageIT, and otherwise lacked particular knowledge of MortgageIT’s record-keeping procedures. Absent such personal knowledge, he was unable to substantiate when the records were made, whether the information they contain derived from a person with knowledge, whether MortgageIT regularly made such records, or, indeed, whether the records belonged to MortgageIT in the first place. His testimony about standard mortgage industry practice only arguably established that such records are generated and kept in the ordinary course of mortgage loan servicing. … The Account Balance Report and consolidated notes log Aurora relied on were incorrectly admitted into evidence as business records, and therefore, could not serve to establish Aurora’s standing to sue Mr. Hunter in foreclosure
I recently prevailed at a foreclosure trial with precisely this argument. The witness was a records custodian for Cenlar, the plaintiff, and never worked for the prior servicer. When Cenlar tried to introduce the loan history of that prior servicer into evidence, the judge did not allow it. As a result, Cenlar was unable to prove the amount due – an essential requirement for banks in foreclosure cases in Florida – and ultimately entered judgment for my client. If that sounds odd, just think about it. Without the prior servicer’s loan history in evidence, how could Cenlar prove the principal balance owed on the Note? It couldn’t. Sure, Cenlar’s payment history had a principal balance listed on it. But that principal balance was taken from the prior servicer’s records, which were excluded from evidence. Unable to prove the amount due, Cenlar lost that trial.
Cenlar tried to argue otherwise in this Motion for Rehearing, but my response to that motion prompted the Court to enter this Order Denying Rehearing.
This sounds foolproof, right? If the plaintiff/servicer changes in most foreclosure cases, and the banks only bring one witness to trial, i.e. a corporate representative for the current plaintiff/servicer, then banks are systematically unable to prove their cases … so homeowners should win all the time, right? Just think about it. If the Paragraph 22 letter is on Bank of America letterhead and the witness is from Nationstar – ha! Nationstar can’t prove the letter was sent; homeowner wins. The first half of the payment history was maintained by Bank of America, but the witness at trial is from Nationstar – ha! Nationstar can’t prove the amount due. This sounds great, but, unfortunately, it’s not that simple.
In Wamco XXVIII, Ltd. v. Integrated Electronic Environments, Inc., Florida’s Second District Court of Appeal allowed a current servicer to testify about the prior servicer’s business records. 903 So. 2d 230 (Fla. 2d DCA 2014). In my everyday foreclosure practice, banks regularly cite this case in conjunction with testimony about the “boarding process.” According to these robo-perjurers (I’m sorry, I mean persons whose sole job it is to testify at foreclosure trials), the current bank/servicer has a process where they “verify” the accuracy of the information from the prior servicer’s records. And since that information has been “verified,” the current servicer can incorporate that information into its records, adopting it as its own, and use that information to testify at trial. Hence, the information might be generated by a different company, but the current plaintiff can testify about it. Nationstar has an employee at trial with a Bank of America payment history in hand? That’s just fine – Nationstar incorporated that payment history into its records via a “boarding process,” ensuring the accuracy of that information before doing so. Never mind, of course, that it is necessarily impossible for Nationstar to actually verify any of that information without actually talking to Bank of America and/or obtaining the underlying information … but I digress. That’s the bag of rocks the banks are regularly selling our courts … and as we saw in Wamco, it sometimes works.
So how do I handle this situation? Which case is right, Hunter or Wamco? Are those decisions in conflict? Personally, I show judges Hunter, and I distinguish Wamco because the witness in that case personally “overs[aw] collections” of loans and was “personally involved” in the servicing of the loans. In my trials, the witnesses almost never fit the criteria in Wamco, so Hunter is more analogous, I argue.
Some judges don’t like this argument. They don’t want homeowners who haven’t paid their mortgage to win on “technicalities” like this. My response? The evidence code is not a technicality, and the rules aren’t different for foreclosure cases. In fact, I rarely give an opening statement in foreclosure trials, but when I do, it’s usually that. “Judge, I simply remind the court that the rules of evidence are not different just because this is a foreclosure case.” Plus, I find little reason to cater to banks on evidentiary issues when they could issue subpoenas to these third-party witnesses; they just systematically refuse to do so. Why? In my view, it’s because they know the court system is, more often than not, going to bail them out, allowing them to get away with bending the rules to facilitate their foreclosures. Rules be damned – we’ve got foreclosures to process!
Like most things in foreclosure-world, my evidentiary objections on issues like this sometimes work and sometimes don’t. But hey, we’re talking about homeowners in foreclosure. Anything that works even some of the time is another tool for the toolbox. And if your judge doesn’t like it, make sure you remind the Court. ”The rules of evidence aren’t different just because this is a foreclosure case.”
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Today’s inspiration just met me in my office.
He’s a Florida homeowner who used to be wealthy but lost it all in the Great Recession. Over the past few years, he’s read my blog, used it to defeat five foreclosure cases (pro se, but with the help of a non-foreclosure lawyer). At the same time, he’s started rebuilding his financial affairs and realized he wished he had given away more money when he had it. Inspired by my cash giveaways to the homeless, he wanted to contribute to my give-aways. Yes, he’s an anonymous donor.
Instead of cash handouts to the homeless, though, he wants to pay me to take a few foreclosure cases for homeowners who otherwise wouldn’t be able to pay. He thinks that better targets those in need.
As a result, in the next few months, I’ll be looking for such homeowners as they come in the door. Don’t ask – you’ll be turned down (and that’s not how this works). Instead, just know that I’ll be looking for such homeowners, with the help of this anonymous donor who wants to contribute to the cause.
Pay it forward, folks. Together, we’ll change the world.
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Original Story: WTSP
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I recently had a trial which, in my view, exposed everything that is wrong with foreclosure-world. But first, a little background …
In most civil lawsuits, it’s up to the parties to set a trial date. Courts don’t set trials on their own; the parties do. In foreclosure-world, though, little is normal. For many months now in Courts throughout Florida, it’s the Courts that take it upon themselves to set cases for trial. Candidly, this dynamic has always driven me crazy. From a defense perspective, when Courts take it upon themselves to set trial, it feels like the Courts are helping the banks prosecute their cases – helping them foreclose on homeowners faster. Some might disagree, arguing either side could win at trial and the Courts are just managing their dockets. But think about it. In 99.99% of foreclosure cases, the banks are the only party seeking relief. Hence, in my view, when a Court takes it upon itself to set a trial, it’s like the Court is saying “you’ve sued for foreclosure, bank? You want relief from the Court? Here, come to this trial date so you can foreclose on this house sooner.” Maybe that’s not what is intended, but as a defense lawyer, that’s how it feels. (If you disagree, then you tell me – how does a quicker trial date help a homeowner?)
It doesn’t always feel that way, of course. Sometimes, the good judges in Florida will dismiss cases at trial when the law and facts require it. So am I saying the system is only fair when cases are dismissed? Of course not. For me, the fairness of the system is often seen not in the result at trial, but whether the Court insists on going forward with the trials that it scheduled.
Consider a recent trial I had in Brevard County. It was a six year old foreclosure case, filed in 2008. Trial had been set twice by the Court and continued once at the Plaintiff’s request. Here we were, at trial the second time, and Plaintiff was verbally requesting another continuance. Plaintiff had no written motion, see Fla.R.Civ.P. 1.460, and, frankly, had no good reason whatsoever for a continuance.
What should a Court do in this situation? It’s a six-year-old foreclosure case. The Court set trial on its own initiative, on the basis that it had to advance the case to resolution to manage its docket. I’m there, per the Court’s Order, ready for trial. Should the Court grant another continuance? To get another continuance, the Plaintiff should need to have a really darn good reason, right? Homeowners certainly wouldn’t get a continuance at trial in a six-year-old foreclosure case without a darn good reason, would they? So why should a bank?
You read the transcript of the Transcript of the hearing and you tell me. Did the Plaintiff have a good reason for a continuance? I sure didn’t think so, and, if I’m being honest, I felt like I thoroughly destroyed the bank’s argument for a continuance. At trial, the bank argued that a Pooling and Servicing Agreement was off by one number, and that was the reason they needed a continuance. I was shocked, as the PSA had not been produced in discovery, identified as an exhibit, or in any way mentioned as part of Plaintiff’s case. For me, this was a totally irrelevant document, yet Plaintiff was using an irrelevant error as a pretense for a continuance to which it was not entitled. That document was not even relevant, and Plaintiff (as the party seeking the continuance) was not even explaining how it was relevant!
As I argued to the judge, I thought the integrity of the judicial system required that continuance be denied. Otherwise, as I explained, Courts come across as little more than debt collectors for the banks. “Here, come to trial and get a judgment. Oh, you’re not ready for your judgment today? Come back in a couple of months and get a judgment then. Oh, you’re still not ready? Come back in a couple more months and you can foreclose then.”
At some point, particularly when Courts set the trial dates, the integrity of the system requires that these continuances be denied. If the bank has a really good reason for a continuance – something that, as the judge said in the final paragraph of the transcript, would truly deprive the bank of its day in court (e.g. the witness’ car broke down coming to trial, death in the family, unexpected emergency), then fine – I get that. But where the bank argues for a continuance based on a document that was not even relevant in the case, six years into a foreclosure lawsuit that had already been continued once – that’s emblematic of a system gone awry.
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