Archive for September 27th, 2010

Help for servicemembers facing foreclosure?

Several clients of Stopa Law Firm are in the military, so in the midst of my many blogs, I’ve tried to discuss some of the laws that are unique to servicemembers.  That’s why this article caught my attention.  Supposedly, Fannie Mae is willing to help servicemembers and their families who are struggling to pay a mortgage due to the death or injury of a servicemember. 

I say “supposedly” because I’ve seen many such programs and, candidly, have seen very little in the way of results.  That said, the brave men and women of our military should at least be aware that they may be a candidate for some assistance.

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Final Judgment of Foreclosure – Without a Hearing!

I’ve had a lot of wild experiences in foreclosure cases, but this one might take the cake. …

On September 2, 2010, I attended a hearing before Judge David Demers in Pinellas County Case No. 2010-CA-2846.  The hearing was on a Motion to Strike or Continue a summary judgment hearing that Plaintiff’s counsel had set for September 8, 2010.  Judge Demers granted my motion, in open court, and ruled that the September 8, 2010 hearing was stricken from the calendar.  Shortly thereafter, acknowledging Judge Demers’ ruling, opposing counsel filed a Notice of Cancellation of the hearing, which appeared on the docket on September 7, 2010.  As far as all parties and the presiding judge were concerned, the September 8, 2010 hearing was not going to occur.  I did not attend, nor did opposing counsel.  It was a victory for my client – the summary judgment hearing was off. 

Incredibly, despite this sequence of events, I received a conformed copy of a Final Judgment of Foreclosure in the mail on September 22, 2010.  It was signed by Judge Lorraine Kelly on September 8, 2010, and it directed a foreclosure sale of my client’s homestead on October 13, 2010.  Suffice it to say I was astonished. 

The summary judgment hearing had been cancelled, and nobody attended, yet the Court entered a Final Judgment of Foreclosure.

I’ve already filed a Motion to Vacte the Final Judgment, and, to his credit, opposing counsel stipulated to an Order granting that relief.  For me, though, the issue is much bigger than what happened in this case. 

From the minute I received the Final Judgment of Foreclosure, I wondered “How could this happen?” 

How can a judge who is not assigned to a case enter a Final Judgment of Foreclosure when the presiding judge ruled that the hearing had been cancelled? 

How can a judge who is not assigned to a case enter a Final Judgment of Foreclosure when Plaintiff’s counsel filed a Notice of Cancellation, which was filed in the Court file prior to the hearing?  

How can a judge who is not assigned to a case enter a Final Judgment of Foreclosure when neither side attended the hearing?  

These questions troubled me, so I did some investigating.  As it turns out, plaintiff’s counsel did nothing wrong.  Plaintiff’s counsel was required to submit the summary judgment “package” (including copies of the Final Judgment of Foreclosure) to the Court at least 7 business days before the hearing.  As of September 2, 2010, the date Judge Demers cancelled the hearing, Plaintiff’s counsel had already sent in the foreclosure “package” to the Court.   

The problem, though, was not that the package was submitted – it’s that a judge signed it.  Here’s where things really went awry.  Apparently…

Pinellas County has a “procedure” where, when a summary judgment hearing begins, the judge covering that hearing will inquire whether the Defendant or his counsel is present.  If not, the judge grants summary judgment, and signs a Final Judgment of Foreclosure, even without Plaintiff or Plaintiff’s counsel being present. 

That’s so outrageous it’s worth repeating:

Standard procedure in Pinellas County is for judges to enter Final Judgment of Foreclosure if a Defendant is not present at a summary judgment hearing, even if Plaintiff or Plaintiff’s counsel is not present.

As a result of this “procedure,” Judge Kelly did not realize the hearing had been cancelled, and since she didn’t look in the file and didn’t talk to either side, she signed the Final Judgment of Foreclosure that had been provided with the foreclosure “package” sent by Plaintiff’s counsel seven days prior. 

I found this so outrageous that I wrote a three-page letter to Chief Judge Thomas McGrady.  Respectfully, I cannot fathom that Pinellas judges would not require, before signing a Final Judgment of Foreclosure, any argument from opposing counsel, or, at minimum, some type of representation that summary judgment is appropriate on that case.  To ignore those safeguards, and to enter a Final Judgment of Foreclosure without even require Plaintiff’s counsel to attend the hearing, is truly astonishing to me.   Essentially, the Pinellas judges say:

“Set a hearing, and if nobody shows up to oppose the motion, we’ll enter a Final Judgment of Foreclosure.”

What transpired in my case shows the fundamental flaws with this procedure.  Most significantly: 

Judges aren’t even looking at the file before granting a Final Judgment of Foreclosure!

Judges aren’t even looking at the file before granting a Final Judgment of Foreclosure!

Yes, it sounds impossible to believe, but

Judges aren’t even looking at the file before granting a Final Judgment of Foreclosure!

If you don’t believe me, let me ask you this.  If the Judge (or an assistant or a case manager) had looked in the file (or looked at the docket), wouldn’t she have seen the Notice of Cancellation of the hearing from Plaintiff’s counsel?   Check the docket for yourself – it was filed on September 7, 2010.  Unfortunately, it seems that judges are too intent on “pushing through” foreclosures to do things like look at the file. 

Here’s the scary part. 

If judges are so oblivious they don’t realize a hearing had been cancelled, how could they possibly be evaluating the propriety of summary judgment? 

How could they possibly be reading the Plaintiff’s affidavits, motions, or other filings? 

How could they possibly be evaluating the case for the fraud with which we’ve all become far too accustomed? 

If I wasn’t diligently representing this client, what would have happened?  Simple – mistake or not, the client’s homestead would have been sold on October 13, 2010.  Let’s say I didn’t receive the Final Judgment of Foreclosure in the mail – same thing; the property would have been sold on October 13, 2010. 

Here’s the really scary part.  I’m counsel in a lot of counties, and Pinellas County is actually pretty good when compared to other counties.  They’re light years ahead of the procedures in Lee County Palm Beach County, among others.  So if this is going on in Pinellas, then I can hardly imagine what’s happening in those counties.

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