Mark Stopa Thrown Out of Court (Literally)
I had a hearing earlier this week on a Motion to Substitute Party Plaintiff. It’s the type of motion we’ve seen all too many times – one fraudster bank wants to remove itself as the plaintiff and allow a different fraudster bank to substitute in its place. Unfortunately, these motions get granted all of the time, often ex parte, without notice, and without hearing. Many times, I don’t even know these motions are filed until the Order is signed, as the plaintiff’s lawyers submit Orders to the judges without copying me. I’ve complained about this process repeatedly, yet judges all seem to think this conduct is okay - not ideal, but a byproduct of insufficient budget funding.
At my hearing on Monday, this process reached a new low.
SunTrust Bank had at least six such motions pending, trying to substitute Nationstar in its place as the plaintiff, all at the same hearing time. At a rocket-docket, I watched four such motions be granted without opposition. When my motion came up for hearing, I wasn’t terribly optimistic, but I felt my argument was sound. After all, Florida procedure authorizes a substitution of the party plaintiff in the event of a “transfer of interest,” but in its motion, SunTrust alleged no such transfer. Here was the sequence of events:
1. Lawsuit filed by SunTrust, alleging lost Note, no copy of Note attached to Complaint.
2. Assignment executed and recorded, purportedly conveying to SunTrust.
3. Nearly 2 years into the case, “original” Note filed, not in name of SunTrust, with no indorsement.
4. Assignment filed and recorded from SunTrust to Nationstar.
5. Motion to Substitute Party Plaintiff filed, alleging an Assignment of Mortgage had been recorded.
As I see it, the second assignment, to Nationstar, was irrelevant and insufficient without more facts, particularly since SunTrust lacked standing at the inception of the case. At minimum, SunTrust should have alleged some facts in its motion, something to the effect of:
The Note and Mortgage were transferred to Nationstar on X date, so Nationstar is now the proper Plaintiff.
This motion didn’t even have that much! It pointed to the assignment (two years into the case, from a company that was not on the note and obtained its own assignment after the suit was filed), and that was it. But what does the assignment really tell anyone without an allegation that the Note and Mortgage were transferred after the suit was filed? Absolutely nothing.
Quite candidly, this is not the strongest argument I’ve ever made. It’s technical. I think I’m right, but I’m not going to criticize a judge for ruling against me. The problem was that I was about 45 seconds into my argument, and had clearly not finished my argument, when the judge interrupted, said “you can argue all of that later in the case, the motion is granted.”
I immediately asked if the Order could so reflect, and he said “No, I’ve already signed the Order.”
At that point, I was pissed. It wasn’t a matter of whether I was right or wrong on the merits of the motion. It was a matter of the judge not even being willing to let me make the argument before making a ruling. It’s not like I was rambling on and on, either – I had talked for less than a minute, with a very coherent argument, when he interrupted me (and signed an Order).
Aggravated at the obvious denial of due process, I began to argue more. The judge refused to listen, saying the hearing was over.
I moved to disqualify him, arguing he refused to let me be heard. He refused to rule on the motion to disqualify him, instead saying I was “out of order” and telling the bailiff to remove me from the courtroom.
With all due respect, is this what it’s come to in our courtrooms? Judges sign Orders without letting one side be heard? Then refuse to let that party finish a brief argument? Then tell the bailiff to remove the lawyer who moves to disqualify them?
I don’t expect to win every hearing. But I absolutely do expect that I will be given a fair chance to be heard at every hearing. For this judge to take that away is offensive and degrades the entire system of justice. If this is happening to you, fight. I’m filing a written motion to disqualify this judge, and I’m going to word it in a way that it’s impossible for him to (lawfully) deny it. And if he does deny it, I’ll go to the Second District.
As lawyers in the foreclosure crisis, we all need to stand up for our right to be heard. I’m not saying to pick a fight. I’m not saying be argumentative. I’m saying to not allow our basic rights to due process to be trampled. If a judge refuses to listen, make him/her. If the judge refuses, complain about it (respectfully, but without backing down). If it takes getting thrown out of court, I’ll live with that. What’s the alternative? If I give up, then our system of justice will continue to erode, piece by piece, and pretty soon, they’ll be nothing left at all.