Florida’s Sixth Circuit – Handling Foreclosure Cases the Right Way
I’ve spent a fair amount of time discussing what should happen differently in foreclosure cases. Today, let’s change gears and applaud one circuit which, in my view, is unparalleled in its efforts to adjudicate foreclosure cases fairly – Florida’s Sixth Judicial Circuit.
To be clear, I’m not about to say every ruling in that court has been correct or that homeowners always win. It doesn’t work like that, nor should it. Judges are human, just like you and me, and, frankly, sometimes homeowners are going to get foreclosed. However, if you ever feel like you’ve been treated unfairly in a foreclosure case, walk into court in St. Petersburg, Florida and check out what’s happening.
Let’s start with what you won’t see. If you observe court proceedings in foreclosure cases in St. Petersburg, you won’t see (unelected) senior judges adjudicating contested foreclosure cases. Yes, there are senior judges, but their role is to handle uncontested cases – the contested foreclosures are left to the presiding circuit judges. Candidly, I love this distinction and I love the message it sends to the people of Pinellas County. It’s literally as if the court is saying “we care enough to have an elected circuit judge adjudicate a foreclosure case if it is being defended by a homeowner. If you care about your house, we care enough about you to have a presiding, elected circuit judge handle your case.” I’ve seen some people complain about senior judges handling uncontested cases, but, as I see it, who cares? If a homeowner doesn’t care enough about his/her house to defend the case, let that case be handled by a senior judge. Let the senior judges push through the slop on uncontested files. Contested files – cases where homeowners care about their homes – are handled by elected, presiding circuit court judges.
Who created this distinction? As far as I can tell, it’s Chief Judge Thomas McGrady. Of course, he’s the same judge who has periodically conducted meetings with foreclosure lawyers from both sides - the banks and the homeowners – to openly discuss ideas on how to best handle foreclosure cases going forward. It should be no surprise the foreclosure process is adjudicated as well in the Sixth Circuit as it is anywhere in Florida when the Chief Judge cares enough to procure input from both sides – and to implement those ideas going forward.
The fair adjudication of foreclosure cases in the Sixth Judicial Circuit goes beyond an administrative level.
I want to refrain from discussing specific rulings in specific cases, as that’s not the point. That said, if you walked into one St. Pete courtroom on May 8, 2012, you’d have seen the judge take a break from a medical malpractice trial to conduct an emergency hearing in two foreclosure cases. (The Florida legislature might not care enough about the court system to fund our courts appropriately, but the judges in St. Petersburg care.) If you were present on May 8, 2012, you’d have heard the judge disagree with my argument that a judge cannot set a case for trial where one of the parties had not noticed it for trial, but that she had read my memorandum of law on the issue, printed out the case law, read those cases on her own, personal time, and encouraged me to appeal since the Second District has not ruled on the issue. In foreclosure court, it’s not just about winning or losing - it’s about knowing the judge is giving you a chance to be heard, is listening, and is reading your case law. Once that hearing was over, you’d have seen the judge immediately return to her malpractice trial. (Break? What break? It’s enough to make anyone seethe at the apathy the legislature has shown for our courts.)
If you walk into another judge’s courtroom for a hearing on a motion to dismiss for lack of prosecution, you’ll likely hear that judge say that he has “no discretion” to deny the motion where the plaintiff has filed no record activity and there is no good cause to keep the case pending. I’m not sure if that judge agrees that should be the law, but he knows that is the law, and he strives to follow the law whether he agrees or not. Again, win or lose, knowing the judge will follow the law is half the battle in foreclosure-world.
If you walk into the courtroom of other judges in St. Pete, you’ll see them act in the manner I think a judge should act – like an umpire at a baseball game. The umpire doesn’t decide when the game will played, nor does he/she predetermine who will win – the ump just calls balls as strikes as the game is played. The attitude of “let me know when you need me” is precisely the role of a neutral and detached judge. If you’ve ever experienced a different dynamic, let me assure you … it’s really refreshing to go before these judges and know they’re going to call balls and strikes, not act like a second prosecutor of foreclosure cases and not do the job of plaintiff’s counsel from the bench where counsel is lax in prosecuting the case. For these judges, it’s about judging fairly, not about meeting a quota or disposing of a certain number of cases in a certain time period.
Our courts are overburdened, understaffed, and underpaid. And while I’m sometimes the first to point out procedures that aren’t up to snuff, let’s make sure we give credit to those many judges who are doing it the right way, especially in the Sixth Judicial Circuit.