Archive for September 1st, 2011

Final Judgment of Foreclosure – Without Notice or Hearing – Take Two

For the second time in my years as a foreclosure defense attorney, I opened the mail to find a Florida judge had signed a Final Judgment of Foreclosure, ex parte, without notice and without hearing. 

The first time this happened, I blogged about it, here.  In that case, a replacement judge did not realize that the presiding judge had ordered a continuation of the summary hearing, then signed the Final Judgment even though nobody attended the previously-scheduled hearing. 

This time, it’s even worse. 

This time, there was no hearing (cancelled or otherwise).  Yet this Final Judgment was signed anyway, with a foreclosure sale set for thirty days thereafter. 

Don’t believe this could happen without a hearing?  Check the Docket for yourself.  There is no hint of any sort of Notice of Hearing on a Motion for Summary Judgment, and I certainly never received such a notice.  Quite simply, the case was progressing (or not progressing) normally, until I suddenly, without warning, received a Final Judgment of Foreclosure, with a sale date, in the mail.

This forces some difficult questions … like … HOW THE HELL DOES THIS HAPPEN?   How does a circuit judge sign a Final Judgment of Foreclosure without notice and without a hearing?  How is a judge even put in a position to sign such a document, i.e. how/why was a proposed Final Judgment of Foreclosure even provided to him (without me being copied)? 

I wish I had a good answer to this.  I don’t.  There is no answer.  There is no justification for: (1) the judge having a proposed Final Judgment of Foreclosure, presumably from the opposing attorney, without me knowing about it; or (2) the judge signing this Final Judgment of Foreclosure without notice and without hearing. 

My Emergency Motion to Vacate Ex Parte Final Judgment of Foreclosure should have been a slam-dunk; the sort of thing that is granted immediately, upon consent by the bank’s attorney.  But it wasn’t.  The bank’s lawyers wouldn’t respond to our requests, and the judge wouldn’t vacate the Final Judgment without a hearing (ironic, eh?). 

So I set the motion for hearing on an emergency basis, i.e. before the scheduled sale.  As the hearing began, the Judge seemed perturbed at the suggestion that this was an “ex parte” Final Judgment.  Then, without knowing why it was signed (by a different judge), she tried to defend the process.  I was quite disappointed.  This was obviously improper (by the opposing attorney, the judge, or both), yet this judge was trying to defend the execution of a Final Judgment of Foreclosure, ex parte, without notice or hearing. 

The judge’s “defense” of this procedure was to essentially say that the courts are overwhelmed with paperwork, which I don’t doubt.  But is that a good enough answer?   I’m not so sure. 

I’m pleased to say the judge agreed the Final Judgment should be vacated, and this Order Vacating Final Judgment was entered.  However, I’m left with some difficult questions:

1.  Why did a Florida circuit court judge sign a Final Judgment without notice or hearing?

2.  How was that judge even in a position to do so, i.e. why did opposing counsel submit a proposed Final Judgment to the judge (without copying me) when there was no hearing?

3.  In how many other cases has this happened – cases where the homeowner has no counsel – and did the pro se homeowner know what steps to take to get the Final Judgment vacated? 

4.  Why was the judge’s initial reaction to defend the procedure rather than express outrage?  For instance, why wasn’t she asking opposing counsel to explain why a proposed Final Judgment was submitted to the Court? 

Unfortunately, I don’t have answers to these questions, as there are no answers.  Consider this another sad day in Florida foreclosure court.

Mark Stopa

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