Archive for April 29th, 2012

Court Reporters in Foreclosure Cases

“Always bring a court reporter to every hearing.”  If I’ve heard that advice once, I’ve heard it 1,000 times in the foreclosure context.  Proponents argue homeowners “need a transcript to bring an appeal.”  But is that advice correct?  Frankly, I’d say no, not always.

In an ideal world, I’d agree it’s probably best to have a transcript of every hearing.  It would be great to memorialize everything, to make the presiding judge realize we’re serious about the defense of that case.  But we don’t live in an ideal world.  Banks may be able to afford court reporters for every hearing in every case, but most homeowners I know can’t.  Let’s face it – bringing a court reporter to every hearing, and having each such hearing transcribed, can be expensive.  For many homeowners, it’s simply not cost-effective.

Fortunately, there are certain types of hearings for which having a court reporter is critical, whereas there are others for which court reporters aren’t necessary.  How can one know the difference?  It’s really not that complicated.  The key is understanding when a transcript is necessary for an appellate court to adjudicate an appeal and when such a transcript is unnecessary.

At most hearings in foreclosure cases, the trial court judge makes a ruling based not on any testimony or anything that anyone says at the hearing, but based merely on the paperwork filed in the case.  When this happens, like at a hearing on a motion to dismiss or a motion for summary judgment, there is almost never a need for a transcript.  For these types of hearings, the written papers either reflect that the judge got it right or got it wrong.  What was said at the hearing changes nothing, so the existence or absence of a transcript changes nothing.

To use a fancier term, the appellate court’s review of the trial court’s ruling in these situations is de novo.  This means the appellate court gives no deference whatsoever to the trial court’s ruling, nor should it.  This may sound confusing, but just think about it.  If a legal ruling is based only on paperwork contained in a court file, then an appellate court can review the court file and the papers therein just as easily as the trial court.  As such, in these situations, there is no reason to defer to the trial judge’s ruling, no reason for a transcript, and de novo review.

If a transcript isn’t necessary at hearings where a judge’s ruling is based solely on the content of papers in a court file, when is it necessary?  Well, rather obviously, when the judge’s ruling is based on things other than the content of written papers in the court file … like a trial, or any other hearing where evidence will be presented.  Quite simply, if a court hearing is scheduled and testimony is being submitted, e.g. at trial, it is imperative that the homeowner bring a court reporter and have a transcript of the trial.  Otherwise, the homeowner cannot show the appellate court what happened at trial and, hence, cannot possibly show the appellate court that the lower court erred in its ruling.

Think of it this way … An appellate court exists as a forum for litigants to prove the trial court ruled incorrectly.  If you can’t show what happened at trial, i.e. what testimony the bank presented at trial, you can’t possibly prove the trial court ruled incorrectly by foreclosing against you.  You need the transcript to prove what happened and to prove why the trial court erred.

Unlike rulings on motions to dismiss or motions for summary judgment, where appellate courts confine their analysis to the court file and, hence, given no deference to the trial judge’s ruling, appellate courts typically give deference to a judge’s ruling at trial.  After all, unlike the appellate judge, the trial judge is physically present in court and has the opportunity to observe the witnesses as they testify.  This puts trial judges in a better position than appellate judges to weigh the evidence and make a ruling.  As a result, (and I realize I’m generalizing a bit here, and there are exceptions, but) it is basically impossible to win an appeal of a judge’s ruling at trial in a foreclosure case without a trial transcript.  The appellate judges defer to the lower court’s ruling, and homeowners can’t show a reason for the appellate court not to defer when they can’t show what happened.

Hence, in my view, it’s important for homeowners to bring a court reporter to trial (or any other hearing where testimony/evidence will be presented) but generally unnecessary to do so at hearings where no evidence will be submitted.

One significant thing to keep in mind when discussing foreclosure trials is Florida Rule of Civil Procedure 1.530(e), which provides:

When an action has been tried by the court without a jury, the sufficiency of the evidence to support the judgment may be raised on appeal whether or ot the party raising the question has made any objection thereto in the trial court or made a motion for rehearing, for new trial, or to alter or amend judgment.

In layman’s terms, this means that if a homeowner loses at trial in a foreclosure case, then he/she can bring an appeal if the bank did not prove its case at trial.  Even if the homeowner did not object to the sufficiency of the evidence, and even if the homeowner did not have a lawyer, the homeowner can still bring an appeal if the bank didn’t prove its entitlement to foreclose.  The key, of course, is having a transcript of the trial – and pursuing the appeal in a timely fashion.

Mark Stopa

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