Archive for May 10th, 2012

Florida’s Sixth Circuit – Handling Foreclosure Cases the Right Way

I’ve spent a fair amount of time discussing what should happen differently in foreclosure cases.  Today, let’s change gears and applaud one circuit which, in my view, is unparalleled in its efforts to adjudicate foreclosure cases fairly – Florida’s Sixth Judicial Circuit.

To be clear, I’m not about to say every ruling in that court has been correct or that homeowners always win.  It doesn’t work like that, nor should it.  Judges are human, just like you and me, and, frankly, sometimes homeowners are going to get foreclosed.  However, if you ever feel like you’ve been treated unfairly in a foreclosure case, walk into court in St. Petersburg, Florida and check out what’s happening.

Let’s start with what you won’t see.  If you observe court proceedings in foreclosure cases in St. Petersburg, you won’t see (unelected) senior judges adjudicating contested foreclosure cases.  Yes, there are senior judges, but their role is to handle uncontested cases – the contested foreclosures are left to the presiding circuit judges.  Candidly, I love this distinction and I love the message it sends to the people of Pinellas County.  It’s literally as if the court is saying “we care enough to have an elected circuit judge adjudicate a foreclosure case if it is being defended by a homeowner.  If you care about your house, we care enough about you to have a presiding, elected circuit judge handle your case.”  I’ve seen some people complain about senior judges handling uncontested cases, but, as I see it, who cares?  If a homeowner doesn’t care enough about his/her house to defend the case, let that case be handled by a senior judge.  Let the senior judges push through the slop on uncontested files.  Contested files – cases where homeowners care about their homes – are handled by elected, presiding circuit court judges.

Who created this distinction?  As far as I can tell, it’s Chief Judge Thomas McGrady.  Of course, he’s the same judge who has periodically conducted meetings with foreclosure lawyers from both sides – the banks and the homeowners – to openly discuss ideas on how to best handle foreclosure cases going forward.  It should be no surprise the foreclosure process is adjudicated as well in the Sixth Circuit as it is anywhere in Florida when the Chief Judge cares enough to procure input from both sides – and to implement those ideas going forward.

The fair adjudication of foreclosure cases in the Sixth Judicial Circuit goes beyond an administrative level.

I want to refrain from discussing specific rulings in specific cases, as that’s not the point.  That said, if you walked into one St. Pete courtroom on May 8, 2012, you’d have seen the judge take a break from a medical malpractice trial to conduct an emergency hearing in two foreclosure cases.  (The Florida legislature might not care enough about the court system to fund our courts appropriately, but the judges in St. Petersburg care.)  If you were present on May 8, 2012, you’d have heard the judge disagree with my argument that a judge cannot set a case for trial where one of the parties had not noticed it for trial, but that she had read my memorandum of law on the issue, printed out the case law, read those cases on her own, personal time, and encouraged me to appeal since the Second District has not ruled on the issue.  In foreclosure court, it’s not just about winning or losing – it’s about knowing the judge is giving you a chance to be heard, is listening, and is reading your case law.  Once that hearing was over, you’d have seen the judge immediately return to her malpractice trial.  (Break?  What break?  It’s enough to make anyone seethe at the apathy the legislature has shown for our courts.)

If you walk into another judge’s courtroom for a hearing on a motion to dismiss for lack of prosecution, you’ll likely hear that judge say that he has “no discretion” to deny the motion where the plaintiff has filed no record activity and there is no good cause to keep the case pending.  I’m not sure if that judge agrees that should be the law, but he knows that is the law, and he strives to follow the law whether he agrees or not.  Again, win or lose, knowing the judge will follow the law is half the battle in foreclosure-world.

If you walk into the courtroom of other judges in St. Pete, you’ll see them act in the manner I think a judge should act – like an umpire at a baseball game.  The umpire doesn’t decide when the game will played, nor does he/she predetermine who will win – the ump just calls balls as strikes as the game is played.  The attitude of “let me know when you need me” is precisely the role of a neutral and detached judge.  If you’ve ever experienced a different dynamic, let me assure you … it’s really refreshing to go before these judges and know they’re going to call balls and strikes, not act like a second prosecutor of foreclosure cases and not do the job of plaintiff’s counsel from the bench where counsel is lax in prosecuting the case.  For these judges, it’s about judging fairly, not about meeting a quota or disposing of a certain number of cases in a certain time period.

Our courts are overburdened, understaffed, and underpaid.  And while I’m sometimes the first to point out procedures that aren’t up to snuff, let’s make sure we give credit to those many judges who are doing it the right way, especially in the Sixth Judicial Circuit.

Mark Stopa

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“Verified” in a Foreclosure Case – What Does it Mean?

We all see the term “verified” in residential foreclosure lawsuits on a regular basis … but what, exactly, does it mean?  Years ago, there wouldn’t have been a question in this regard.  In years past, “verified” meant under oath, or under penalty of perjury, as provided under Fla. Stat. 92.525 … the equivalent of live testimony in open court.  Now?  The law is much less clear, so much so that plaintiffs’ lawyers are making arguments that are contrary to law.

The ambiguity began in February, 2010, when the Florida Supreme Court, in response to widespread robo-signing, began requiring that all plaintiffs in residential foreclosure cases verify the foreclosure complaints they file.  The intent was raise the bar … to create an additional hurdle for plaintiffs to follow to ensure they would investigate their lawsuits before filing them (and to eliminate garbage pleadings).

The problem is that the verification required under Rule 1.110(b) is not a normal verification, but a special one created just for purposes of residential foreclosure complaints.  To illustrate, Fla. Stat. 92.525 requires a verification be made under penalty of perjury, i.e. sworn to be “true and correct,” whereas Rule 1.110(b) permits a lesser verification, i.e. “true and correct” to the best of one’s “knowledge and belief.”

The question hence becomes … in what contexts is a verification sufficient if done “to the best of one’s knowledge and belief,” and when is the normal verification under Fla. Stat. 92.525 required?  Two specific situations come to mind – Summary Judgments, and Orders to Show Cause.

Plaintiffs’ attorneys will undoubtedly point to a recent decision from Florida’s Second District, which ruled that verifications on “knowledge and belief” are sufficient in a residential foreclosure complaint, in support of their position that verifications on “knowledge and belief” are satisfactory.  See Trucap Grantor Trust 2010-1 v. Pelt, 37 Fla. L. Weekly D 622 (Fla. 2d DCA 2012).  However, Trucap merely says a verification on “knowledge and belief” is sufficient in the run-of-the mill foreclosure pleading.  It sheds no light whatsoever on the question of whether this type of verification is authorized in other contexts, i.e. Summary Judgment or an Order to Show Cause.

For instance, when a foreclosure case goes to summary judgment, is this type of equivocal verification allowed?  And what about when a plaintiff seeks an Order to Show Cause under Fla. Stat. 702.10 – is the qualified verification under Trucap sufficient?

In each case, I think the answer is “no” – the verification must be unequivocal, i.e. under oath, as set forth in Fla. Stat. 92.525.  Here’s why.

Fla. Stat. 702.10 has been in existence for a long time – long before Rule 1.110(b) was ever created.  In my view, the law clearly requires, to obtain an Order to Show Cause in a residential foreclosure case, that a plaintiff verify the complaint consistent with Fla. Stat. 92.525, not the lesser verification under Rule 1.110(b).  In fact, at least one Florida decision has specifically ruled that the verification must be done in this manner.  See Muss v. Lennar Fla. Partners I, L.P., 673 So. 2d 84 (Fla. 4th DCA 1996) (not allowing verifications “on information and belief” in the context of an Order to Show Cause).

Plaintiffs’ attorneys will argue Muss was decided before Rule 1.110(b), and that is true.  However, the entire purpose of Rule 1.110(b) was to raise the bar for plaintiffs in foreclosure cases – not to lower it.  Hence, to argue 1.110(b) allows a qualified verification in the context of an Order to Show Cause, you’d necessarily be arguing that the Florida Supreme Court lowered the bar via Rule 1.110(b) for Orders to Show Cause without mentioning Orders to Show Cause at all.  In my view, there is no way the Florida Supreme Court changed the requirements of Fla. Stat. 702.10 or overruled Muss without explicitly stating so.  Rule 1.110(b) requires the verification set forth in Trucap without changing the verification requirements of Fla. Stat. 702.10 and Muss.

So what does this mean?  If you’re facing an Order to Show Cause in a residential foreclosure case, make sure you argue that Rule 1.110(b) might be sufficient for a run-of-the-mill foreclosure complaint, but it’s not sufficient to enable a plaintiff to obtain an Order to Show Cause.  For that, an unequivocal verification, as set forth in Fla. Stat. 92.525, is required – not merely one on “knowledge and belief.”  At this point, there is not a written opinion from a Florida district court which makes this distinction.  Trust me, though – it will happen at some point.

A similar clarification is important when dealing with motions for summary judgment.  After all, long-standing Florida precedent requires that the verifications used for purposes of summary judgment be unequivocal.  Quite simply, it is not sufficient for a plaintiff or a defendant to give an affidavit “on information and belief,” or “on knowledge and belief” – the affidavit must be verified under oath.

To illustrate, in Ballinger v. Bay Gulf Credit Union, 51 So. 2d 528 (Fla. 2d DCA 2010), the Second District reversed a summary judgment because it was based on a verification done “on knowledge and belief.”  In other words, the court ruled the evidence supporting summary judgment was not sufficient because it was not “evidence” at all given the qualified verification.

As such, if you’re dealing with a motion for summary judgment in a mortgage foreclosure case, don’t allow the bank’s attorney to argue they’ve proven their right to summary judgment (or proven you’re not entitled to summary judgment) because their complaint is verified.  After all, that complaint is probably verified “on knowledge and belief,” and that type of verification is simply not allowed in the summary judgment context.

Again, there is not yet a Florida case which makes this distinction, but I assure you – it’s coming.

Mark Stopa

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