Archive for August 20th, 2010

When do judges decide who wins a foreclosure case?

Yesterday, I had an experience in court that has absolutely rocked my world, causing me to wonder:

When do judges decide who wins a foreclosure case? 

Do they evaluate each case on the merits?  Or do judges see “foreclosure case” and automatically decide, in their minds, that the bank is going to win (but refrain from announcing such until entry of final judgment)?  In other words, is the outcome of these cases predetermined by some judges?  As a zealous advocate for homeowners, I’d certainly like to think not – particularly in cases where judges see my name.  After all, I’ve been in courtrooms throughout Florida for a long time now, fighting to help homeowners avoid foreclosure, and I’d like to think I’ve developed a good reputation as an aggressive foreclosure defense attorney.

My experience yesterday, though, as outlined in this Motion to DQ Judge, makes me wonder, not about myself, but about the thousands of cases in Florida where homeowners don’t have an attorney.  I strongly encourage you to read the entire Motion to DQ Judge, as it’s a matter of public record, but here’s the cliff notes version.

On August 19, 2010 at 9:30, a summary judgment hearing was set on a mass-motion calendar.  My clients were pro se until just a few days prior, so the documents I filed in opposition to summary judgment had not yet made it into the Court file yet.  As such, the Judge thought my clients were pro se.  At or before 8:15 a.m. on August 19, 2010, the Judge entered conformed copies of a Final Judgment of foreclosure even though the summary judgment hearing was not scheduled until 9:30 a.m. that day.  That’s worth repeating:

The judge entered a Final Judgment of foreclosure more than an hour BEFORE the scheduled hearing.

Sounds impossible to believe, but it’s true.  I learned about this, in fact, only by happenstance – my associate went to the courthouse to review the court file before the hearing, and, upon review of the court file, saw conformed copies of the Final Judgment in the file.  The hearing was not set to begin for more than an hour, yet the Judge had already made copies of the executed Final Judgment, to be mailed to all parties.

If that sounds too hard to believe, click here – you’ll see the judge’s stamp on a Final Judgment of foreclosure, dated August 19, 2010.  The pictures aren’t great (as they were taken by my associate via his cellphone at 8:15 a.m.), but they clearly show the judge’s stamp on a Final Judgment of foreclosure on August 19, 2010, before the summary judgment hearing had begun.

At 9:30, when the hearing began, I voiced my concern about this to the Judge.  She was obviously caught off guard, but it quickly became apparent to me that her “procedure” is to make conformed copies of the Final Judgment, to be mailed to the parties, prior to the hearing (and to send out those copies to all parties immediately upon conclusion of the hearing).  Essentially, she’s already made up her mind before the hearing, is holding the gavel in the air, and is ready to throw it down as soon as the hearing starts.

In my view, the obvious problem here is that the Judge is pre-judging the outcome of the case even before she’s heard what the homeowner has to say.  Apparently, she’s unwilling to wait to see what happens at the hearing – she’s so convinced the bank is going to win, she’s made copies of the Final Judgment and envelopes to mail the judgment to the parties.  Essentially, the axe is in the air and she’s ready to drop it as soon as the hearing begins.

I’ll let you draw your own conclusions about this.  I’ve set forth mine in the Motion to DQ Judge.  Suffice it to say I’m very troubled.  What’s really scary is that, prior to this hearing, I had thought this Judge was one of the more friendly judges as far as foreclosure defense goes, which begs the question – if a friendly judge is doing this, what are the other judges doing?

If there are any judges reading this, particularly in Florida, then let me say this.  I know the volume of cases with which you’re dealing is frustrating.  But you owe it to the people whose homes you are foreclosing upon to give them all a fair chance, whether they’re pro se, represented by Stopa Law Firm, or represented by some other lawyer.  Everyone is entitled to a neutral and detached judge.  Respectfully, if you’re making conformed copies of a Final Judgment before a hearing even begins, that’s just not fair.

Mark Stopa

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