Archive for March 6th, 2012

Telephone “Glitch” Prompts New Hearing, Disappointment

Have you ever felt a certain way and wished you didn’t but you just can’t help it?  That’s how I feel right now.  I’m disappointed.  Disappointed because a judge just told me something but, for a variety of reasons (mostly because of how this particular judge has acted in foreclosure cases, both towards me and my clients and in general), I just don’t believe it.  999 times out of 1,000, I’d believe a judge in a situation like this.  Even here, I want to believe this judge, and I suppose I should believe the judge.  Unfortunately, in this situation, I just don’t, making today perhaps the most disappointing day in my entire legal career.

Here’s what happened…

I recently had a hearing in a foreclosure case on a Motion for Summary Judgment or to Dismiss.  My argument was two-fold: (1) the bank, a foreign corporation, failed to post the cost bond required by Fla. Stat. 57.011, requiring dismissal of the lawsuit; and (2) the bank failed to give the homeowner notice of the alleged default and a 30-day opportunity to cure it, as required by paragraph 22 of his mortgage.

These arguments were simple, straightforward, and, quite frankly, dead winners.

The hearing was odd from the outset.  Nobody showed up for the bank, via telephone or otherwise (the judge even clarified no attorneys were “on hold”), so it was just me and the judge in chambers.  The judge was visibly uncomfortable from the outset, but asked me to start my argument.  About half way through my argument, the Court’s phone rang.  The judge excitedly took the call, thinking it was opposing counsel calling in for my hearing.  But it was a different lawyer from a different case, totally unrelated to mine.  Oddly, the judge conducted the hearing in that case, unopposed, granting a summary judgment of foreclosure in that case.  (It was weird and uncomfortable, frankly, because it felt like the judge was trying to “buy time” to give opposing counsel in my case a chance to show up.)  Then, with that hearing over, the judge told me to resume my argument.

When I finished the argument, unopposed, explaining why the case should be dismissed for failure to post cost bond and/or summary judgment entered for failure to comply with conditions precedent, the judge told me the Court would take the matter under advisement.

This was exceptionally rare.  Banks get summary judgments entered when cases are unopposed as a matter of course.  Why not here?  Why not for a homeowner?  I’m all for judges taking matters under advisement and giving careful consideration before ruling – that’s a good thing.  But what was there to think about here?

I then asked the judge if I should provide the Court with a proposed Order.  The judge said “no,” that the Court would prepare its own Order.

Again, very odd.  With all of the Orders that the Court signs in uncontested cases or at uncontested hearings, why did the Court want to prepare its own Order here?  To put that in perspective, that’s the first time in 10 years of practicing law where I’ve seen a judge take a ruling under advisement at a hearing where one side did not even show up, then refuse a proposed Order from counsel who appeared, insisting on preparing its own Order.  Even at the time, I was wondering … why?

The situation only got stranger from there.

I just received the Order, and the judge denied the motion to dismiss (the cost bond argument), without explanation, ordering my client to file an Answer within 10 days.  As for the summary judgment part of the motion (the bank’s failure to give notice and cure), the judge ruled the hearing had to be rescheduled because the judge’s assistant informed the Court, when the hearing was over, that the bank’s attorney was “on hold” for the hearing but due to some unknown telephone “glitch” with the Court’s phone system, the judge did not see that the lawyer was on hold.

As I said at the outset, I really want to believe the judge in this situation.  I do.  I want to think the opposing attorney was actually on hold and didn’t get through to the hearing (in which event rescheduling the hearing is the fair thing to do).

Unfortunately, I can’t say I believe it.  I don’t believe the opposing attorney was on hold.  Heck, the judge took a phone call (for another hearing) right in front of me and the phone was working just fine.  Plus, the judge clarified at the start of the hearing that no attorneys were on hold.  I want to believe the opposing attorney was “on hold” and that a “glitch” in the Court’s phone system prevented the judge from realizing it, but I don’t.

In fairness, I suppose there’s no way to know for sure, but, at worst, I’m very skeptical.

You might think I’m a conspiracy theorist, but I disagree.  999 times out of 1,000, I’d believe the judge in a situation like this.  Unfortunately, I think my skepticism here is reasonable and, frankly, unavoidable.  Bear in mind, this is the same judge who regularly gives 5-day turnaround times for homeowners to file an Answer or take some other act even as banks are given 60 or 90-day extensions ex parte.  This is the same judge who interrupts defense lawyers, cuts off their arguments, rules against them without hearings, regularly defaults them out of court ex parte and without notice, etc., etc.    The best way to describe the dynamic is this … imagine you are an out-of-state lawyer going into court for the first time in a small western town in the 1960s.  All the small-town cronies are sitting in the audience, smiling and joking, as the judge approaches the bench.  You lose, and you know you got home-towned, but there’s nothing you can do about it.  That’s how it feels before this judge in every foreclosure case, and I know I’m not the only one who feels that way.

Please don’t misunderstand – the vast majority of judges before whom I appear are terrific and fair.  If this sort of thing happened before almost any other judge, I’d have shrugged my shoulders and moved on.  It’s sad that I can’t do so here.  It’s sad that the temperament and demeanor of this judge has been such that I’m left questioning whether the opposing attorney was actually “on hold” and the Court didn’t realize it due to a phone “glitch” or whether something different is going on.

Maybe my skepticism is well-founded and maybe not.  Perhaps I’m right, perhaps not.  Either way, it’s sad when I can’t just accept what the Court has said at face value.  It’s sad when I’m left wondering, rightly or wrongly, what really happened here.

More than anything, this is why I’m a foreclosure defense attorney.  If/when homeowners lose their home, they should always – always – feel like that was the lawful result, if not the just one.  Any judge should be able to look that homeowner in the eye and say “[t]his is what the law requires,” and the homeowner, as upset as he/she may be, has to be able to accept that.  We might not like it, and I’ll fight like hell to avoid it, but if that’s what the law requires, we have to move forward.  That said, I need – need – to feel like it’s a fair fight.  I need to feel like the law requires a foreclosure in a given case – not that the system was set up or slanted in a way to facilitate that foreclosure.

That’s why I’m disappointed today.  I’m disappointed because I’m left wondering what our court system is all about.  Does the system allow a fair adjudication of cases?  Or is it set up/slanted (at least in some courtrooms) in a way that merely facilitates foreclosure?

The fact that I have to ask that question is sad, and it’s what drives me to keep fighting for homeowners.

Mark Stopa

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