Archive for May 20th, 2011

Appearance of Corruption

The phrase “appearance of impropriety” is used frequently when discussing the conduct of judges.  As everyone knows, judges are supposed to act to avoid the “appearance of impropriety.” 

When it comes to Broward County Chief Judge Victor Tobin (who recently resigned as judge to take a job with foreclosure mill Marshall Watson), my thought isn’t about the appearance of impropriety – it’s about the appearance of corruption.  If that sounds harsh, then consider the dictionary definition of corruption – “use of a position of trust for dishonest gain.”

Is that what Judge Tobin has done?  Before you answer, read this article (titled Before Joining Foreclosure Firm, Broward’s Chief Judge Created a System That Favors Banks).  As the author notes, Judge Tobin enacted procedures and rules as recently as this month – procedures which he’ll be able to use in his new job.  This begs the question – When did Judge Tobin begin negotiating for the job with Marshall Watson? 

It doesn’t take a conspiracy theorist to wonder if Judge Tobin was enacting procedures, as Chief Judge, knowing he would get to take advantage of these procedures in private practice with Marshall Watson. 

In my view, to avoid this appearance of corruption, Judge Tobin needs to be totally open and candid.  Tell everyone when the negotiating period began.  Show everyone.  If he’s done nothing wrong, then he should have no problem being an open book about all of this.  If he’s unwilling to do that, then reasonable people will have serious (and, in my view, justifiable) questions about judicial misconduct. 

Here’s the article. …  

If you’re a foreclosure defense lawyer doing work in Broward County, there are lots of reasons to think Chief Judge Victor Tobin doesn’t side with homeowners. In his tenure at the top of the county’s legal system, he has instituted rules that make it tougher on homeowners to fight foreclosures and resisted changes that would protect them from cases being rushed through the system.

The widespread belief that he’s biased toward banks seemed supported this week when Tobin announced that he’ll be leaving the bench for a job at the law offices of Marshall C. Watson, one of the largest foreclosure firms in the state. It’s a move that angers foreclosure defense lawyers who say it appears as if Tobin established a system that will favor his new position. Worse, Tobin may  have been negotiating his new job while creating rules that will benefit him later.

“It’s a concern, and certainly I can tell you that it looks really bad,” said attorney Mike Wasylik, who has offices in Boca Raton and Dade City. “Judges are required to avoid even the appearance of impropriety, and I’m not saying what he did is improper, but certainly someone could look at it and say it appears that way.”

Tobin didn’t return a phone call to his office Thursday. But on Wednesday, he told the Pulp he’s going to Watson to help the firm’s quality control. Watson paid the state $2 million in March to settle an Attorney General’s Office inquiry into foreclosure paperwork that the firm pushed through without the necessary checks required by law. Watson has for months been at the center of criticism of Florida firms accused of rushing foreclosures on homeowners who may not have received notice in order to collect millions in fees from the banks.

Tobin’s reign at the top of the judiciary included several “administrative orders” changing the way the county handles foreclosures, many of them favoring lawyers representing the banks. The most contested of them forbids foreclosure sales from being canceled ten days before the auction is set to take place. That means homeowners who strike a last-minute deal with a bank to save their home have no choice but to watch their house go to the highest bidder. Wasylik says the rule solidified “the perception that Broward is a place where it’s easier for banks to litigate.”

Last summer, Tobin added to the pro-bank rules by instituting what’s referred to as the “rocket docket.” It requires foreclosure judges to move hundreds of cases a day with almost no discussion. Judges simply have no time to consider complex paperwork filed by foreclosure defense attorneys, says Fort Lauderdale lawyer Jason Weaver.

“It’s doubtful justice can be done in three and a half minutes in front of a judge who has to hear hundreds of cases in a day,” Weaver said.

Efforts to create a mediation program that could help homeowners settle with banks were also rebuffed by Tobin, attorneys say. He finally instituted a mediation program last year, but only after the Florida Supreme Court issued an administrative order requiring every circuit court to do so.

And just two weeks ago, Tobin instituted another rule hampering homeowners who want to fight foreclosures. Previously, attorneys representing homeowners could schedule online what’s called a “special set” hearing. The hearing allows homeowners’ attorneys to make complex legal arguments that can’t be heard during the rocket docket. Tobin’s new rule required that a hearing be set during the rocket docket in which attorneys must ask for a longer hearing. Homeowners typically have little money to fight foreclosures, and the extra bureaucracy means they must pay their attorney to appear at a hearing simply to ask for another hearing, says lawyer Margery Golant.

“In Broward, defendants have fewer rights and fewer due process options,” Golant said.

Judges in Palm Beach and Miami-Dade counties have worked to protect homeowners facing bogus foreclosures, attorneys say. Miami-Dade Circuit Judge Jennifer Bailey, for instance, famously threw out 15,000 foreclosure cases for filing irregularities, served on a statewide task force on mortgage foreclosures, and was recognized with a community service award for her work protecting homeowners from bogus cases.

Meanwhile, Tobin gave many signs that he favored lawyers from the banks, lawyers say. In foreclosure courtrooms, most bank lawyers sit in the front, with access to tables where they can spread out their paperwork, while defense lawyers are relegated to the back, Golant says. “When you’re told to go sit in the back of the room until your case is called and you see your opposing counsel sitting way up in the front of the room, you get the impression of bias,” she said.

Worse, lawyers say Tobin has been known to say things in open court that seem to show a bias toward the banks. Golant says she heard Tobin tell one homeowner: “Sorry, you’re not paying your mortgage. What do you want from me?”

The damage has already been done to the system, foreclosure defense lawyers say, but now they want Tobin to step down early. He agreed to continue on the bench until the end of June, but several defense lawyers say he can’t continue to serve as chief judge after taking the job at a firm that has regular dealings with the court.

“I don’t know how long he has been negotiating with Watson — a week, a month, a year — but it sure doesn’t look good,” Golant said. The only remedy now, she says, is for Tobin to leave.

If he does, he may find himself back in Broward courts arguing foreclosure cases for the banks — and he’ll find a system that he designed to make his new job easier

Mark Stopa

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Disparate Treatment of Foreclosure Cases

Foreclosure defense attorneys and consumer advocates throughout Florida have argued for a long time that judges treat foreclosure cases differently than other types of lawsuits.  The creation of “rocket dockets” and “senior judges” lend support to these arguments, at least on the trial court level.  But what about appellate judges?  Do Florida’s appellate courts treat foreclosure cases differently?  Unfortunately, I’m starting to think so.  If you disagree, I welcome your explanation on the following.   

Three times in the past two years I’ve filed a Petition for Writ of Prohibition in Florida’s Second District Court of Appeal (after the trial judge denied a Motion to Disqualify him/her as legally insufficient).  At this point, I think I’m quite good at handling this type of proceeding in the appellate court.  In fact, the Second District has agreed with my argument in two of these three cases, granting my petitions and ruling the trial judge should have granted my motion to disqualify.  The third time, in what I consider to be a very similar argument, the appellate court ruled against me (without explanation). 

Do you want to hazard a guess which case was a foreclosure case and which two were not? 

Sure, I suppose this could be a coincidence.  But having compared the merit of these three cases, I don’t think so.  I’m posting the motions and the appellate court petitions on this blog so you can be the judge. 

 Case 1.  I filed a Motion to Disqualify Judge.  My argument was centered around the judge’s announced predisposition to rule against my client.  When the motion was denied, I filed this Petition_for_Writ_of_Prohibition in the Second District.  Here, the appellate court agreed with my argument, granted the petition, and directed that the judge remove himself from the case.  

Case 2.  I filed this Motion to Disqualify Judge.  Again, my argument centered around the judge’s announced predisposition to rule against my client.  When the motion was denied, I filed this Petition for Writ of Prohibition in the Second District.  Here, the appellate court rejected my argument and denied the petition without explanation, allowing the judge to remain on the case. 

Case 3.  I filed this Motion to Disqualify Judge.  Again, my argument centered around the judge’s announced predisposition to rule against my client.  When the motion was denied, I filed this Petition for Writ of Prohibition in the Second District.  Here (just today, actually), the appellate court agreed with my argument, granted the petition, and directed the judge to remove herself from the case. 

I’m not trying to say the facts or the arguments in these three cases were exactly the same.  They weren’t.  However, they were pretty close, and the merits of these three petitioners were quite similar as well.  So why did I prevail in Case 1 and Case 3 (not foreclosure cases) but lose in Case 2 (a foreclosure case)?  

Again, maybe this is just a coincidence.  However, I have a hard time believing the judges in Case 2 didn’t view that case a bit differently because it was a foreclosure case.  I hate to say that, and I hate feeling that way – I really do.  But I don’t see any other reasonable explanation here. 

The point here is not to disparage any judge or call anyone out.  My point is that it’s time that all judges, including appellate judges, apply the law equally to all cases, including foreclosure cases.  After all, if attorneys like me feel this way, imagine how homeowners and other non-lawyers who are inexperienced with the legal system must feel.

Mark Stopa

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