Archive for February 27th, 2011

Be Afraid. Be Very Afraid. Then Fight Back.

As far as Florida’s foreclosure crisis goes, I don’t consider myself an alarmist.  Yes, the court system is far from perfect, and yes, I’ve discussed examples of such on this blog.  But as flawed as the system may be, if we’re being honest, Florida homeowners have it better than those in other states, many of whom have no judicial oversight whatsoever.  Let’s put it this way – until now, only one thing has really scared me in my ongoing defense of Florida homeowners – the prospect of Florida changing to a non-judicial foreclosure state. 

Today, a second fear has emerged, and while this isn’t on the same level of non-judicial foreclosures, it has the potential to be.  Apparently, a proposed amendment to Florida’s Constitution is under consideration in the legislature.  The amendment would take away the exclusive power of the Florida Supreme Court to envoke rules of practice and procedure in all courts and place that power with the Florida legislature.

What, exactly, does this mean?  Well, for many years, the Florida Supreme Court has created and enforced rules of procedure, to be used by all courts in all lawsuits, an authority granted to it by Article V, Section II of the Florida Constitution.  These procedural rules have a drastic impact on how all lawsuits, including foreclosure cases, are litigated.  For instance, the Florida Supreme Court created Florida Rule of Civil Procedure 1.510, commonly known as the summary judgment rule.  This is the rule that has created so much attention about foreclosure fraud, as banks “robo-signed” affidavits supporting summary judgment without the affiants having personal knowledge of what they were signing and without attaching the documents upon which they based their knowledge.  This is the rule of procedure (essentially the only procedure) for how a bank can win a lawsuit without the need for a trial.  Lose at summary judgment, and the bank must go to trial.  Suffice it to say this rule has a huge impact on how foreclosure cases are litigated.

We all know how much influence the banks and their lobbyists have over the legislature.  Frankly, I shudder at the thought of what the legislature could do if it had the ability to create/change rules of practice and procedure in Florida courts.  Theoretically, the possibilities are endless.  The verification requirement (created by the Florida Supreme Court via Rule 1.110)?  Poof, gone.  The obligation to attach documents to an affidavit supporting summary judgment when the affiant lacks personal knowledge (via 1.510(e)?  Eliminated. 

But it’s worse than that.  Who’s to say the legislature wouldn’t change dozens of years of legal precedent by creating some new way for a plaintiff/bank, other than summary judgment, to win a foreclosure lawsuit?  Maybe they put the burden of proof onto the defendant to come into court with some sort of evidence, failing which final judgment is entered.  I’m almost afraid to speculate on the possibilities – I don’t want to give anyone any ideas. 

For me, what it boils down to is this.  As flawed as the court system sometimes is, judges are in a much, much better position to implement rules of practice and procedure in Florida courts than the legislature.  Respectfully, this is what we (and I say “we” as I’m part of the judicial system) do for a living.  You want to pass laws?  Fine.  You want to change laws?  Fine.  But stay out of our court system.  These are our courts, and we’re going to fight for them. 

If you don’t want the bankers and their lobbyists getting their greedy, grubby hands on our laws and our courts any more than they already have, please join me and countless other Freedom Fighters in Tallahassee on March 9 for the Rally in Tally II.  Just as we did last year, we’re going to do everything we can to make our legislature listen to us.  We don’t have rich banking institutions with powerful lobbyists backing us – it’s up to us to get the job done ourselves. 

I’m afraid.  But I’m fighting back.  Are you?

Mark Stopa

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