Archive for April 8th, 2011

A Response from the Florida Bar President

Mayanne Dowds, the President of the Florida Bar, responded to my last post, discussing the emails from the Lee County Judges, with the following.  My reply to her follows that.


I write as an individual, a lawyer in Florida who received this email.  Although it would be easy not to respond, I cannot let the record stand with the statements made in this chain unrebutted.

I have read every email attached to this email. Not only do those emails NOT support the claims made below – that the judges in Lee County were acting in a “disgusting” fashion without regard to due process – but they actually show  judges working hard to do their jobs as well as they can, and to find the appropriate way to process the staggering caseloads they must manage.  These thoughtful judges are communicating about how best to proceed, trying to understand what their colleagues are doing, sharing approaches, and  obviously interested in the best possible approach to a difficult problem. 

It is wrong and unfair, in my opinion, to make sweeping derogatory statements about these judges, who cannot defend themselves. It is wrong to claim that a dense record supports a sweeping and damning conclusion, knowing that most will not take the time to read the materials.  And it is unfair to do so in such a dramatic and widespread fashion.

I understand that people can have reasonable differences about what is right and wrong in these cases, and I certainly understand claims that due process is not being satisfactorily addressed.  Those claims should be prosecuted or defended as the clients and their lawyers see fit.  Sharing information is an admirable goal. Using a forum to damn others — not so much.

We all have an obligation to speak and act respectfully, and with due regard for our roles in our system of justice.  Words have power, and we all have a responsibility to remember that.

I am confident that no one on this list intends harm, and I’m not suggesting that anyone has acted intentionally badly.  I simply ask for some care, and caution, in how we communicate about these important issues.

Thanks for “listening.”

Best regards to all,

Mayanne Downs

My Reply 

Ms. Downs,
As the author of the email/blog to which you respond, I deem it necessary and appropriate to respond to your email. 
I have a great deal of respect for many if not most of Florida’s judges, and I believe the last paragraph of my email reflects that. 
Regrettably, however, I don’t find anything the Lee County judges do to be “thoughtful” or “appropriate.”   
And unless you have litigated in Lee County, I don’t think it’s fair to criticize my perspective on this issue. 
I’ve been on the front lines of the foreclosure crisis, not just in Lee County, but many other counties, since 2008. 
So when I give these opinions, I do so with a lot of experience and a tremendous basis for comparison. 
You seem to think what the Lee County judges are doing is “necessary.” 
I could not disagree more. 
Judges in other counties don’t act this way.  They just don’t. 
In Lee County, virtually everything those judges do vis a vis foreclosure cases is designed to dispose of foreclosure cases as quickly as possible. 
Is that what our system of justice has been relegated to?  Speed above all else? 
As I see it, a judge’s job is to administer justice on each and every case/file that comes before him/her. 
To act as an impartial arbiter and ensure fairness to both sides. 
I read those emails several times. 
I saw nothing in those emails about administering justice. 
I saw nothing in those emails about ensuring fairness or complying with basic notions of due process. 
You say “claims should be prosecuted or defended as the clients and their lawyers see fit.” 
But that’s actually sort of the point. 
I’ve tried defending cases in Lee County. 
I’ve tried “defending cases as I see fit.”
And I think I’m really good at defending foreclosure cases.
However, defending foreclosure cases in Lee County, with the systems those judges have employed, is borderline impossible.   
After all, how can you defend homeowners facing foreclosure when judges require personal attendance at monthly docket soundings, even when plaintiffs don’t want to prosecute the case (forcing lawyers to wait for several hours for a two-minute hearing at which nothing takes place), set those docket soundings unilaterally without clearing the date, won’t allow phone appearances, won’t allow continuances (unless it’s the plaintiff’s lawyer who wants a continuance of trial because the plaintiff doesn’t want to have a contested trial), give such abbreviated discovery cut-offs that there is essentially no discovery allowed at all, set trials prematurely (by their own admission in the emails), won’t give more than a couple of minutes for homeowners to argue, order defendants to set hearings on outstanding motions before the next docket sounding but then won’t allow defendants to coordinate such a hearing, etc., etc.  
The system is so perverse that do you know what strategy many defense lawyers are forced to employ?  Defend and hope the plaintiff gets so frustrated/uncomfortable that they file a notice of voluntary dismissal. With all due respect, does that sound like justice to you? 
I encourage you to read my affidavit, attached to the ACLU’s petition.  Don’t the facts set forth therein bother you?  What is your solution to fixing those problems?  I understand your critique of my position, but where is your solution to the inherent flaws in the systems being employed in Lee County?  I hope you’re not trying to suggest there is no need for a solution. 
You say these issues should not be discussed in an open forum “to damn others.” 
There was no intent to “damn others” here. 
The intent is to create public awareness to the rather obvious problems with this system so as to promote change. 
It’s up to lawyers like me – and, candidly, people in positions of authority, such as yourself, to address the obvious problems in Lee County. 
Unless and until that happens, the most basic notions of fairness and due process are being thrown out the window, all for the sake of expediency. 
Personally, I refuse to accept that.  I refuse to accept that our system of justice can be so marginalized. 
In my view, the people of Florida deserve better.

Mark Stopa

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One Objective – Disposing of Foreclosure Cases

Today, my outrage about perverse foreclosure procedures reached a new level. 

Prior to filing its Petition in the Second District, the ACLU succeeded in obtaining emails and internal memos from the judges in Lee County.  Yes, they’re available for everyone to see.  Here’s a link.  Scroll down to page 108 (App.108 at the bottom of the page) and read the emails. 

This is truly disgusting stuff.  I’ll let you read for specifics, but from my perspective, all of the judges, in particular Judge Carlin, had one singular objective – dispose of foreclosure cases as quickly as possible, regardless of law, procedure, due process or basic fairness.  To accomplish that end, these judges were willing to do seemingly anything, even create pre-determined rulings to legal issues. 

Granting a motion for continuance?  No way. 

Lawyer not available for a hearing?  Doesn’t matter; hearing proceeds. 

Case not at issue?  Doesn’t matter – set for trial anyway.

Plaintiffs cancelling hearings?  Set a docket sounding so they can’t cancel. 

Plaintiffs aren’t setting enough hearings?  Contact them ex parte and tell them to set more hearings. 

Not disposing of enough cases?  Set quotas, increasing the number of cases being heard.  200 per session.  250.  500.

The parties want to abate a case to discuss settlement?  Abatement is not an option, even when both sides want to resolve the lawsuit without a foreclosure.

Personally, I’d like to see the Judicial Qualifications Committee review this conduct.  After all, we’ve heard a lot about lawyer misconduct and Bar grievances, but judges should be accountable, too.  This is absolutely disgusting.  And if that sounds harsh, read the emails

Maybe you think I’m crazy to call out judges who I have cases before.  Maybe I am.  But wouldn’t it be crazier to stay silent and let this conduct continue unchallenged? 

This makes me appreciate even more the many good judges throughout Florida who actually listen to arguments and care about trying to follow the law and rule correctly.  To all of you, and you know who you are, thank you.

Mark Stopa

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