Archive for April 3rd, 2012

Dismiss Cases? Or Cram Through Judgments?

It’s only Tuesday, but it’s been quite a week already.  I’ve had four different foreclosure cases dismissed – four different cases, for four different reasons.  In contrast, I had one judge sua sponte set a plaintiff’s motion for summary judgment for hearing (refusing to set defense motions that were also pending, including a dispositive defense motion).  Then, when plaintiff’s counsel refused to proceed with summary judgment at the hearing, the judge denied summary judgment.  Upon doing so, however, the judge immediately set a trial date while refusing to hear my argument that the case could not be set for trial, showing such bias and hostility that I felt compelled to file a motion to disqualify.  This stark contrast made me wonder … which do you think is better?  Dismissing cases (where the law allows)?  Or being intent on cramming through foreclosure judgments?

Let’s start with the dismissals.

In one case, the Honorable David Demers of St. Petersburg granted a Motion to Dismiss for Lack of Prosecution, appropriately ruling he had “no discretion” to deny the motion where there was no record activity in the 10 months preceding the Notice of Intent to Dismiss or the 60 days thereafter and Plaintiff failed to show good cause in writing five days before the hearing.  Plaintiff’s counsel argued the case should remain pending, but instead of trying to cram a square peg into a round hole, the judge recognized the law required dismissal and he followed the law, dismissing the case.

In another case, the Honorable Anthony Rondolino of St. Petersburg dismissed a case without leave to amend because the Plaintiff failed to amend its Complaint for more than 6 months after a prior order giving it 20 days to amend.  Again, Plaintiff’s counsel argued the case should remain pending, but the judge followed the law and dismissed the case.

Interestingly, during that hearing, Judge Rondolino lamented how Florida’s governor and the banks complain about how the court system is too slow to prosecute foreclosures (using those delays as an excuse to ask for non-judicial foreclosures), as, in his view, it’s clear the banks are the ones who are dilatory.  That six-month delay was a good illustration of his point.

In a third case, the Honorable Douglas Baird of Clearwater granted a motion to compel discovery, ruling Plaintiff had waived objections thereto where it failed to file them for many months.  Rather than providing these discovery responses, Plaintiff chose to voluntarily dismiss its case.

In a fourth case, the Honorable James Barton of Tampa granted summary judgment for my client given the bank’s failure to comply with conditions precedent to suit.

Four cases, all dismissed, each for a different reason.  That, of course, makes for a significant point – it is very possible to adjudicate the “backlog” of foreclosure cases in a manner other than merely cramming through foreclosure judgments.  In other words, there are many ways a foreclosure case can be dismissed, if you’re fighting it.

By contrast, I am filing this Motion to DQ Judge because I’m so troubled at what happened in today’s hearing in a different case.  This judge took it upon himself to issue an Order setting a hearing on the plaintiff’s motion for summary judgment (not setting a hearing on any of my client’s motions).  After denying summary judgment (where plaintiff’s counsel was unprepared to proceed), the judge immediately set a trial, refusing to listen to my arguments or read my case law about why trial could not be set.  In fact, when I asked to be heard, he pointed at the door, basically telling me I could leave if I didn’t agree.

In my opinion, it was clear this judge had pre-determined that he was going to grant summary judgment or set trial, regardless of the facts of a foreclosure case.  Summary judgment or trial, that was it (on a case, mind you, that the judge took it upon himself to prosecute by setting a hearing).  Respectfully, is that really appropriate?

You tell me – which approach do you think is better?  Dismissing cases where the law authorizes, or judges taking it upon themselves to set a plaintiff’s motion for summary judgment for hearing, then either granting that motion or setting a trial (without regard to any arguments or case law about the propriety of a trial date)?  I know which approach I think is proper/better.

Mark Stopa

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