Archive for March 1st, 2011

Hernando County’s “Administrative Closings” – FAIL

As a foreclosure defense attorney with cases in numerous counties throughout Florida, I’ve become very familiar with the different procedures utilized by judges in their ongoing attempt to dispose of the backlog of foreclosure cases.  Some of these procedures are perfectly appropriate whereas others, well, aren’t. 

One of the “procedures” that has really gotten under my skin is how Hernando County judges have taken it upon themselves to “administratively close” a foreclosure lawsuit if the case goes more than a few months with no record activity.  These Orders do not say the case is “dismissed,” but rather than the case is “administratively closed.”  That, of course, begs the question – what does an “administrative closing” mean? 

I’m a geek when it comes to Florida procedure, so I know there is no legal authority for an “administrative closing.”  Hence, I find this procedure to be totally inappropriate and, in many cases, prejudicial to homeowners.  The most egregious example happened to a colleague, who had set a hearing on a motion to dismiss, but when the bank did not heed his instructions to set a motion for summary judgment hearing, the Hernando judge refused to go forward with the motion to dismiss hearing, administratively closed the file, and said that only the plaintiff could re-open the case (when it was ready to proceed with a summary judgment hearing).  Respectfully, that’s just disgusting.  Allowing a plaintiff to prosecute a case but not allowing a defendant to defend it doesn’t even pass the smell test. 

Other prejudices to homeowners may not be as obvious.  For example, to obtain a dismissal for lack of prosecution under Rule 1.420(e), 10 months must pass with no record activity, after which any party may serve a notice of intent to dismiss the case.  If two more months pass with no record activity, a defendant can move for dismissal for lack of prosecution.  Here’s the problem.  The new rule on lack of prosecution defines “record activity” so broadly that the Hernando County judges’ Orders which “administratively close” a file probably constitute ”record activity,” precluding dismissal for lack of prosecution, even though there is no authority for those Orders.   Essentially, the ten-month clock starts (at least arguably) all over again because the judges have taken it upon themselves to “close” a file. 

I was annoyed enough by this procedure, and confident enough that it was wrong, that I tracked down the attorney for Florida’s Fifth Judicial Circuit (who, apparently, set up the procedure of “administratively closing” foreclosure cases with the Chief Judge).  I exchanged a series of emails with her, telling her that these administrative closings were without legal authority, contrary to law, and that the Fifth Judicial Circuit should dispense with this procedure in all foreclosure cases.  I even suggested an alternative procedure, i.e. the right way to do it, emailing her this Order from Florida’s Twelfth Judicial Circuit, which was appropriately following Rule 1.420(e). 

I was admittedly a bit harsh (my wife says I have no tact, but I digress), but, candidly, I was quite perturbed when I realized the motives of the Fifth Judicial Circuit(which a staffer admitted to me over the phone).  By “administratively closing” foreclosure cases, the Fifth Circuit could report to Tallahassee that those files were “closed” files, which made it appear that their cases had already been adjudicated when, in reality, they had not.  Essentially, from what I was told, the Fifth Circuit was cooking the books to make it appear that they were getting through the backlog of cases quicker than they actually were. 

You may think – what’s the big deal?  As a homeowner, isn’t it good that a case is “closed”?  Well, no.  Since there is no procedure for “closing” a case, the case can be “re-opened,” at any time, i.e. whenever the plaintiff decides it wants to resume the case.  So all a “closing” does is prevent the defendant from litigating the case when/how the homeowner wants, and enable the bank to litigate the case on its terms.   

As you can imagine, the attorney for the Fifth Judicial Circuit was not too fond of my position (which openly criticized the procedure they created), but told me she would speak to the Chief Judge.  For a couple of weeks, I heard nothing.  Then, Florida’s Fourth District Court of Appeal issued this this ruling in a similar situation, finding “the trial court erred by directing the clerk to close the file” merely because the case had been pending for many years.  The court explained that ”simply order[ing] the closing of the file” was “a procedure not found in The Florida Rules of Civil Procedure or case law.” 

When I read this opinion, I was elated.  This was basically just what I had informed the Fifth Judicial Circuit.  So I emailed the attorney again, informing her of the ruling.  Unfortunately, I have yet to receive any confirmation that the Hernando County judges will stop the procedure of “administratively closing” foreclosure files.  But I assure you this – I won’t sit down and let it happen in any of my cases, and I encourage all homeowners facing foreclosure to take a similar stance.  There is, quite simply, no legal authority for a case to be “closed” and then “re-opened” whenever the plaintiff decides it wants to resume prosecution of its lawsuit.

Mark Stopa

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