Archive for December 20th, 2011

Florida Supreme Court Keeps Foreclosure Cases Pending, Headed Towards Judgment

If you talk to any circuit court judge in Florida or observe virtually any hearing in a foreclosure case, you’ll hear the judge explain how the Florida Supreme Court wants Florida’s trial court judges to finish/adjudicate foreclosure cases.  I’ve lamented this dynamic before, so instead of repeating myself in that regard, let’s discuss two ways the Florida Supreme Court could accomplish its stated objective but is failing to do so.

First, instead of making changes to the mediation program, the Court eliminated the program altogether

I realize the mediation program, as it existed, wasn’t working.  With all due respect to the Court, however, the purpose of the program – to force banks to negotiate with homeowners – is too important to give up so easily.  Instead of giving up on the program, and taking away an opportunity for homeowners to avoid foreclosure, the Court should have figured out what was wrong with the program and fixed it.  For instance, I’ve said from the outset that the problem with the program was that it required mediations too soon.  It wouldn’t be difficult to implement a system that required mediation before summary judgment or before trial – later in the process, after homeowners have had a chance to save money, get back on their feet, and/or fix whatever temporary financial problem caused them to go into foreclosure.  Scrapping the problem altogether shouldn’t have been an option. 

Second, the Court changed Fla.R.Civ.P. 1.420(e) and, just this summer, issued what I see as a terribly misguided opinion which makes it very difficult to to dismiss a case for lack of prosecution.  To illustrate, I had a case just the other day where the bank hadn’t filed any papers in 10 months, so I filed a Notice of Intent to Dismiss for Lack of Prosecution, as contemplated by the Rule.  61 days later, I filed a Motion to Dismiss for Lack of Prosecution.  The other day, I attended a hearing on the motion and had to concede the motion could not be granted because the bank’s attorneys filed a Notice of Appearance on the 59th day, two day before the Motion to Dismiss was served. 

The Notice of Appearance did nothing to advance the case to judgment, and until recently, such a filing would not have been deemed “record activity” and would not have prevented a dismissal.  However, under the Court’s new decision in Chemrock, this filing prevented a dismissal and re-started the one year clock at the beginning.  In other words, under the Court’s new rule, it doesn’t matter that the bank has done nothing to move the case in a year – it filed something, so the case would remain pending. 

At the hearing, the presiding trial court judge expressed frustration at the Court’s new rule, lamenting how the Florida Supreme Court was instructing Florida judges to dispose of foreclosure cases yet making it so difficult to dispose of these cases via Rule 1.420(e).  Notably, this was the third Florida judge who has expressed such frustration to me about the Court’s rule. 

The Court’s elimination of the mediation program and its institution of a more rigid Rule 1.420(e) may seem unrelated, but they’re not.  Both such decisions enable foreclosure lawsuits in Florida to continue languishing indefinitely.  Personally, I don’t think there’s anything wrong with that – the bank is the plaintiff, and if it is willing to let its cases languish, that’s its prerogative.  My point, simply, is this – if the Florida Supreme Court wants to get foreclosure cases moving, then it doesn’t make much sense to eliminate the mediation program and create a rule that makes it so difficult to dismiss cases for lack of prosecution. 

What troubles me most about this dynamic is this … if cases don’t settle at mediation, and aren’t dismissed for lack of prosecution, yet Florida judges feel compelled to push them forward, then entry of foreclosure judgments becomes a more likely alternative.  Ultimately, that’s the problem here – the Florida Supreme Court should be implementing procedures to create alternatives to foreclosure, not making foreclosure a more likely outcome.

Mark Stopa

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