Archive for February 22nd, 2011

More Perverse Procedure in Ft. Myers

Below is a good article about the ongoing, perverse procedures being employed by judges in foreclosure cases in Lee County.  What jumps out at me about this article is how a homeowner’s trial was continued, apparently because there were so many other cases to be tried that the court didn’t have time for that trial, so it continued the trial for a future date.

What the article doesn’t say is something I know by handling these cases – that 83 trials were scheduled today – 83!!   Obviously, it wasn’t possible for these cases to all be tried.  Unfortunately, the judges know this; they just don’t care.  They don’t care that both sides incur expenses by traveling to court to wait for several hours for a trial that will never happen.  They don’t care that homeowners (and, for that matter, banks) are paying lawyers to attend a trial that isn’t going to proceed. 

Lee County judges set docket soundings and trial dates over and over again, as a matter of routine.  They do so even when neither side wants a trial; often when both sides are objecting.  This makes it all the more disgraceful that, when trial day arrives, contested trials cannot possibly take place because the judges have set too many of them.  Sure, the judges can quickly adjudicate the cases where one side or the other doesn’t show up.  But there’s no way they can have legitimate trials in this setting, and they know it.    

As I see it, this is a total lack of respect for the parties and their lawyers.  I hate to say that; there’s just, in my view, no other way to characterize it.  These judges have elevated their own desire to clear the dockets above all else. 

Senior Judge Starnes loves to talk about how the foreclosure crisis has forced courts to employ procedures like this.  Really, judge?  Then why is Lee County the only county in Florida, to my knowledge, that does this?  Isn’t the more plausible explanation that Lee County is doing it wrong and that the other counties are doing it right? 

Here’s the article. 

LEE COUNTY — For the past few years, Lee County’s busiest court docket has also been the most notorious in the state.  Dubbed the ‘rocket docket’, the county’s foreclosure track cruises through several hundred cases daily, many ending in judgments for the lender and the subsequent scheduling of a foreclosure sale.

In the process, critics say, the docket tramples basic rules of civil procedure and due process. They point to the speed with which judges move cases along, and the emphasis on an expedited trial or summary judgment versus discovery.  “It’s just a lack of, I don’t know, respect for the defendant by the court,” Naples attorney Todd Allen said.

Fittingly, a Tuesday morning docket session in which Allen and his client, Estero condo-owner Scott Shinneman, were to go to trial in Shinneman’s foreclosure, turned into a three-and-a-half hour wait that ended with disappointment — a continued trial date that may benefit the lender.  “So much for our day in court, huh?” Shinneman quipped.

His case turned heads last year after a clever order drafted by Allen made local news and several foreclosure blogs. Frustrated when Lee Senior Judge James Thompson rejected a motion in December to toss what Allen considered a flawed affidavit by a bank employee, the attorney drafted the resulting order to explicitly state what he says Thompson told him — that Lee County does not comply with Florida Rules of Civil Procedure.  The attorney for lender HSBC signed off on the draft, Allen said, and it went to Thompson’s office.

“I knew one of two things was going to happen,” Allen said. “Either he was going to read it and sign it, which is bad because it means it was policy, or he wasn’t going to read it and sign it, which is even worse.”  Instead, the other senior judge on the docket, Hugh E. Starnes, signed the order.  “Blown away,” is how Allen described his reaction.

Thompson entered a corrective order nearly a month later. It read, in part, “(t)hat statement does not reflect the court’s ruling or the court’s position.”

Tuesday brought the next battle in Shinneman’s case. Scheduled for a trial that Allen initially hoped to postpone, Shinneman and the attorney actually hoped it would go forward. The HSBC attorney had filed his exhibit and witness lists on Monday, a move that left Allen little preparation time, he said.

If the trial went forward, he suspected the presiding magistrate, Amy Hawthorne, would either dismiss the case or prohibit testimony from anyone on the lists, including the bank employee.  The attorney for HSBC instead objected to the magistrate hearing the case, putting the trial back on the foreclosure docket and in front of Starnes.

Allen suspects the objection came after Hawthorne dismissed several cases in similar shape. Efforts to reach the HSBC attorney, Travis Harvey of the Florida Default Law Group in Tampa, were not immediately successful on Tuesday afternoon.  After the move, Allen, Shinneman and Harvey waited several hours as Starnes’ docket cleared.

The cases marched before the judge were short, and most were continued to an April docket sounding.  Starnes, a retired judge returned to the courtroom to handle foreclosures, attempted to explain the process to confused homeowners. In some cases, he recommended they look for an attorney.

Homeowner Joseph Canete asked for mediation, a rare request in the morning session.  “I would just say we have a solid 10 years of making mortgage payments,” Canete told Starnes. “When we did have problems, the bank’s suggestion was we couldn’t be helped until we were behind. Once we were behind, it was too late.”

Another woman told the judge she still lacked her bank’s acknowledgement of a $4,600 lump sum it requested to reinstate her loan. The lender’s attorney said she had no knowledge of the payment but offered to inquire about it.  Some homeowners told Starnes they were still hashing out short sales. Other cases were aligned for summary judgment at the next docket sounding.

Around 11:40 a.m., Starnes completed the docket, more than 100 cases by his count. With another 104 slated for the afternoon session and little time for lunch, he postponed Shinneman’s trial.  “I’ve got to object,” Allen protested. “That’s completely prejudicing my client.”  “I understand,” Starnes replied.

Outside the courtroom, Allen and his client said they were disappointed by the decision, which removes the late-filing issue.  “We could have essentially settled this today,” Allen said.

The case goes next to a re-hearing on the bank employee’s affidavit on March 21, followed by a trial on the 22nd.  The trial is scheduled to be heard by Hawthorne.

Mark Stopa

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There are no Mulligans for Fraud

Recently, I’ve received a number of “Re-Verified Affidavits” in foreclosure cases with Florida Default Law Group.  The fact-pattern goes like this.  Bank files fraudulent affidavit.  Bank’s lawyers realize it.  Bank files “re-verified affidavit,” asking the Court to ignore the first affidavit, use the second affidavit, and proceed with the foreclosure lawsuit as normal. 

Does anyone else find this to be an insult to the homeowners, the courts, the justice system, and the public as a whole?  The banks are essentially saying “yes, I committed fraud, but I want the court to ignore that, sweep the fraud under the rug, and proceed with foreclosure.” 

Luckily, in Florida, the courts have a legal doctrine called fraud on the court.  The concept, essentially, is that when a party, particularly a plaintiff, commits a fraud in the perpetuation of a lawsuit, that party should not be able to use the court system (upon which it just committed a fraud) to obtain relief.  Essentially, the party is slapping the court in the face with one hand while sticking out the other hand asking for relief – and that’s not allowed.  As I see it, this is totally reprehensible and should never be permitted.  That’s why, when I see these “re-verified affidavits,” I’ve started filing motions for sanctions for fraud on the court, including the one here.

Mark Stopa

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