Archive for January 28th, 2011

Mediation in Foreclosure Cases

Mark Puente of the St. Pete Times has a nice write-up on what he calls Problems with Foreclosure Mediation.  The article is here and is quoted, below. 

I’m quoted in the article, essentially agreeing there are problems with the mediation process, and I stand behind that.  However, for me, the problem is far more than the banks’ informational advantage through document production and file access (or lack thereof).  In my view, the mediation process does not work in foreclosure cases because mediations take place too soon. 

The mediation process works (in non-foreclosure cases) because both sides fear a risk of losing the case if it goes to trial.  This is why every mediator says “you never know what the judge/jury will do” – and it’s true.  We don’t know.  In your typical case, either side could win.  But in foreclosure cases, the dynamic is totally different.  When mediation takes place, banks think they will win the case (at summary judgment, just like they usually do).  As a result, they perceive no risk of losing the case and have little to no incentive to settle at mediation. 

The problem is largely in the timing.  In foreclosure cases, the mediation process is designed to take place within the first 60 days.  In non-foreclosure cases, mediation usually takes place much later; often just before trial.  By mediating right before trial, the parties all realize that if they don’t settle, they will go to trial (and face the risks associated with losing).  This “all or nothing” proposition is scary for most litigants, encouraging settlements.  Until the mediation process is set up that way in foreclosure cases, I fear it will continue to be a process that does little more than frustrate and disappoint well-intentioned homeowners.  

Here is the article …

A program set up to prevent foreclosures provides greater access to financial records for bank attorneys than defense lawyers in Pinellas and Pasco counties, those defending homeowners say.  Since the mediation program started in August, defense attorneys say they haven’t had electronic access to the records even after their clients provided the court-ordered information to mediators. That has put them at an unfair disadvantage.  Defense attorneys also say banks are dictating the dates and times of the mediation sessions without checking the schedules of opposing counsel and homeowners.

Mark Stopa, a St. Petersburg foreclosure defense attorney, said the lack of access to records gives banks an upper hand in the process.

“It is a problem,” he said. “The whole process is inequitable and not doing what it was intended. I am not happy or excited about the process.”

In Hillsborough County, defense attorneys receive access to the case information once they prove representation.

Ron Stuart, spokesman for the Pinellas-Pasco judicial circuit, said the access issue is being remedied. He urged patience as the remaining glitches are being resolved. He acknowledged that court officials knew about the different levels of access when the program started. Clearwater-based Mediation Managers Inc. operates the program in Pinellas and Pasco counties.

“We were going into an avenue that was all new to us,” Stuart said. “It’s in the hands of Mediation Managers. They’re trying to get it solved as quickly as they can.”

The high court ordered the state’s 20 judicial circuits in late 2009 to sponsor mediation sessions between homeowners and lenders to reduce foreclosures. The program applies to owner-occupied, residential properties and aims for a quick resolution.  Lenders pay a $750 fee for each case. A successful mediation could lead to a modification of the mortgage loan, such as a lower interest rate or a time extension for the borrower. Some people still will lose their homes.

Mediation Managers immediately notified court officials about the access problem when defense attorneys complained last month, said Dick Rahter, the nonprofit’s president. The technology needs to be improved so defense attorneys can get access to information about their cases, but not private records in all cases, he added.

Nobody, Rahter said, anticipated this problem.  “The policy is being looked at and may change in the near future,” he said. “I was always concerned about that from the beginning.”

Bank attorneys, he said, are not controlling the scheduling process. Some problems developed when defense lawyers didn’t notify the mediation program about representing a client, Rahter said.  He acknowledged that some scheduling conflicts have slipped through the cracks.  “It’s kind of like a juggling act,” Rahter stressed. “We’re doing our best.”

Mark Stopa

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Refusal to Verify Means Dismissal – Without Leave to Amend

One of my ongoing frustrations as a foreclosure defense attorney is seeing banks and their lawyers repeatedly and systematically refuse to comply with basic rules of procedure and/or Florida law.  One common example is their repeated refusal to verify their Complaints in residential foreclosure cases, as required by Fla.R.Civ.P. 1.110(b).  This is a really simple thing to do (or, at least it should be, if banks are acting appropriately), yet banks and their lawyers routinely file foreclosure lawsuits on residential property without a verification.  Respectfully, there is absolutely no excuse for this. 

When any party in a Florida lawsuit fails to comply with a rule of procedure or an Order of the Court, e.g. the requirement in 1.110(b) to verify foreclosure complaints, dismissal is an authorized remedy.  See Fla.R.Civ.P. 1.420(b).  Unfortunately, all too often, when banks fail to include the requisite verification, judges give them a second chance, giving them leave to file an Amended Complaint.  Essentially, this means the bank can fix the problem within the confines of the pending lawsuit. 

Respectfully, this drives me nuts.  Banks and their lawyers are willfully and intentionally violating a rule of the Florida Supreme Court on a routine, systematic basis.  Why is there no sanction for this?  Why should they get a “do-over”? 

When this happens, I believe dismissal with prejudice is an appropriate sanction.  At minimum, the dismissal should be without prejudice but without leave to amend.  This way, the banks will have to re-file a new lawsuit, with a new case number, and pay a new filing fee.  If more judges ruled this way, like this judge just did, then banks and their lawyers would learn their lesson (presumably) and stop refusing to comply with basic rules of procedure. 

The judge’s Final Order of Dismissal sets forth this precise rationale.  I’ve been waiting for a ruling like this for months – what a joy to read.  After months of watching banks’ willful misconduct go unpunished, it’s great to see a Florida judge enter a sanction for such obvious misconduct.

Mark Stopa

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The solution to the courts’ funding problems

Charles Canady, the Chief Justice of the Florida Supreme Court, is concerned about the lack of sufficient funds for Florida courts.  He’s quoted as saying:

We’ve seen a drop in the filings. It relates to these (robo-signing) problems. That has affected our revenue and it’s something that’s very much a concern.

Maybe I’m reading that wrong, but is the Chief Judge somehow suggesting the “robo-signing problem” was a good thing, as it resulted in more foreclosure filings and the fees resulting from them? 

Anyway, I think the solution for the courts is simple – when appropriate, dismiss cases! 

When a bank lacks standing at the inception of a foreclosure lawsuit, dismiss the case! 

When a bank files fraudulent foreclosure affidavits, dismiss the case! 

When a bank fails to state a cause of action, then fails to amend within the time limits permitted, dismiss the case!

When a bank fails to properly verify a complaint, dismiss the case! 

If Florida judges started dismissing foreclosure lawsuits (when permitted by law, of course), and forced banks to re-file, then the increased filing fees would help fix these budgetary concerns.  Oh, and it would keep homeowners in their homes, help prevent foreclosures, and show Americans that judges are willing to follow the law and not just “push through” foreclosure judgments.

Mark Stopa

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