Archive for April 21st, 2012

Judges Helping Bank Lawyers at Foreclosure Trials

A prospective client just sent me this transcript from a trial she handled herself.  Although she lost, this homeowner did a decent job.  She didn’t assert any objections, some of which certainly would have been appropriate, and I think she’d be the first to admit it would have been much better if she had a lawyer.  We all know lawyers can do better than pro se homeowners, though, so I don’t want to harp on that.

Instead, I want to discuss something that really jumped out at me as I read the transcript.  Unfortunately, I fear this will be a significant issue in many foreclosure cases as more trials take place, and it’s something about which everyone should be aware.

Read the transcriptDo you notice how the judge was helping the bank’s lawyer? 

You might think it was subtle, but, as I see it, the judge’s “help” absolutely jumped off the page.

Look at page 8.  The bank’s lawyer made it clear he had “no further questions” (for the only witness he brought to trial), and it was clear to me that he was done presenting evidence.  However, the bank’s counsel had not asked his (only) witness any questions or introduced any evidence to prove the bank’s claim to re-establish the lost note, as would be required for the bank to prevail and foreclose.  Clearly, the judge realized counsel was not introducing evidence of an essential part of his case.  But instead of allowing him to screw up (and, potentially, enter judgment for the homeowner), the judge interjected:

“[Counsel], this is a lost note?”

If you’re a nonlawyer, this might seem subtle, but as a lawyer, I assure you – this was an obvious reminder by the judge that the bank’s attorney needed to submit additional evidence.  Of course, right on cue, the lawyer responded by asking more questions, with an eye towards proving what a bank needs to prove to re-establish a lost note under Florida Statute 673.3091.

Tellingly, at the bottom of page 8 and continuing at the top of page 9, the bank’s lawyer actually asked the judge if she “required anything else.”  This was not innocuous, either; this was the lawyer’s way of asking the judge, on the record, if he was missing any other evidence necessary to prove his case (and for the bank to prevail).  In response, the judge told him precisely what to ask:

“no explanation as to how [the note] got lost?” 

Again, right on cue, the bank’s attorney responded by asking the question the judge told him to ask, i.e. how the note was lost.

Later (on pages 44-45), after all the evidence was admitted and the bank’s lawyer and this homeowner were making closing arguments, the homeowner argued the case should be dismissed given the bank’s failure to give her the required 30-day notice and opportunity to cure.  The bank’s lawyer didn’t think this letter was necessary, but the judge prompted him to re-open his case to introduce the letter into evidence, asking him

“Do you wish to re-open the case to admit the letter?” 

Notably, the bank’s attorney had not asked to re-open the case; the judge suggested, all on her own, that he do so.

That’s three instances where this judge prompted the bank’s lawyer to do something to prove his case.  The judge prompted counsel to ask questions about a lost note, directed him to ask for an explanation of how the note was lost, and encouraged him to re-open the evidence to introduce the lost note.

Ladies and gentlemen, this is completely, undoubtedly, 100% wrong.  And that’s not just my opinion – that’s what many, many Florida appellate decisions have held.  Judges cannot help bank lawyers prove their cases at foreclosure trials.  This judge did, three times, in fact, but that conduct never should have happened.

I hate to compare foreclosure trials to criminal case, but, frankly, criminal cases is where this type of fact-pattern often arises.  Sometimes, when a prosecutor forgets to ask an important question or introduce a key piece of evidence, the judge (wanting to see the criminal defendant get convicted) will feel compelled to suggest a question or remind the prosecutor to introduce certain evidence.  This is plainly not permitted.  Quite simply, a judge is not allowed to give “tips” or “hints” to a plaintiff’s attorney, at trial, to help the attorney prove the plaintiff’s case.  In fact, a judge’s conduct in this regard requires that a motion to disqualify the judge be granted.  See Blackpool Assocs., Ltd. v. SM-106, Ltd., 839 So. 2d 837 (Fla. 4th DCA 2003); Evans v. State, 831 So. 2d 808 (Fla. 4th DCA 2002); Lee v. State, 789 So. 2d 1105 (Fla. 4th DCA 2001), Asbury v. State, 765 So. 2d 965 (Fla. 4th DCA 2000); Chastine v. Broome, 629 So. 2d 293 (Fla. 4th DCA 1993) (“When the judge enters into the proceedings and becomes a participant, a shadow is cast upon judicial neutrality so that disqualification is required.”) .

In Lee, for instance, the judge suggested to the prosecutor that he have a witness identify the defendant’s tattoos.  In Evans, the judge suggested that the prosecutor inquire about the defendant’s immigration status after she testified she was a law-abiding citizen.  In both cases, the appellate court reversed criminal convictions, concluding the judge should not have “helped” the prosecution.

Unfortunately, some judges view foreclosure cases in much the same way as criminal trials.  Many such judges want to see foreclosure judgments entered, so they feel compelled to give “hints” or “suggestions” to bank attorneys on how to proceed (rather than letting those lawyers screw up and cause a favorable result for a homeowner).  In my view, that’s exactly what we saw in this transcript, above.  The judge wanted the bank to prevail, so she was giving hints to counsel on how to proceed.

If it sounds like I’m being critical, I’m not trying to be.  It’s human nature to “help” someone who is struggling or forgetful.  In a sense, I can understand how judges would feel a natural instinct to give suggestions to counsel on what to do – it’s human nature to help people.

That said, judges must resist this urge.  Giving advice like this during a trial is not appropriate.  For anyone defending a foreclosure trial, it is very important not to allow a judge to do this (and to point it out to the judge if he/she does so).  I realize you can’t control what the judge says or does, but if this happens … OBJECT!!!  Tell the judge:

“Respectfully, Judge, I don’t think it is fair or appropriate for you to be suggesting to plaintiff’s counsel what questions or ask or what evidence to present.”

Likewise, if a bank’s attorney asks a judge, during trial, ”do you need anything else,” the appropriate response from the judge is “counselor, it’s not my role to tell you if you’ve submitted sufficient evidence to prove your case.”

I encountered this very dynamic in my foreclosure trial last week.  At various points, the bank’s attorney wasn’t sure how to proceed, and the judge started giving him hints, suggesting areas of inquiry and giving advice on how to proceed.  The first two times, I interjected, forcefully but respectfully, telling the judge it was inappropriate for him to be giving advice to plaintiff’s counsel.  The third time, I was more aggressive, moving to disqualify the judge.  Although the judge denied that motion, he did not give any more hints to plaintiff’s counsel, and without the judge helping him, the bank’s attorney wasn’t sure how to proceed.  Ultimately, this uncertainty left counsel unable to prove his case, forcing him to dismiss it.

After the trial, the judge joked with me that I was a “pain in the ass,” but told me I was right by asserting these objections.  In his words, the judge knew he couldn’t ”carry” the bank’s lawyer any more.  I’m not saying the judge liked it (hence the “pain in the ass” comment), but when push came to shove, and when I called him out on it, the judge realized he couldn’t help the bank’s attorney.

Everyone needs to be aware of this issue.  Judges can’t give hints to counsel, and if they do, then we all need to, respectfully but forcefully, make it clear that we are objecting to any and all such “hints.”

Why is this so important?  Well, bear in mind … a huge aspect of foreclosure defense is forcing plaintiffs’ attorneys to prove their case.  It’s the responsibility of the bank’s attorney to prove that case (not the judge), both by asking the right questions and introducing all of the required evidence.  Then, at the end of trial, it’s the judge’s job to evaluate whether the evidence is sufficient for the bank to foreclose, and, if it’s not, to rule in the homeowner’s case.  In other words, the judge is there to evaluate the evidence, not to make sure the bank submits evidence. 

By the way, I’m inclined to take an appeal on behalf of the homeowner who handled that trial herself, for two reasons.  One is a pretty glaring hole in the evidence (which I’ll keep to myself to avoid helping any nosy bank lawyers who may be reading this) and the second is, yes, how inappropriate it was for the judge to keep helping the bank’s attorney.

Mark Stopa

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