Archive for December 18th, 2012

Foreclosure Defense in Miami-Dade

I don’t know Matthew Bavaro, a fellow foreclosure defense attorney who practices in Miami.  However, the story he posted on his blog today struck a cord with me, as it’s eerily similar to an experience I had in Miami a few weeks ago.  At this point, it’s time – perhaps past time – that I shared my experience and voiced my concerns.

I had a trial scheduled in Miami, and when I arrived in court, it was apparent that dozens of other trials had all been set for the same time, before the same judge.  While it’s never ideal to have to sit around and wait for your case to be called, it gave me the chance to watch other cases.  Wow, what a nightmare.  As each trial started, the judge made an unsolicited “offer” to defense counsel of a 120-day sale date, advising the defendant that if he/she did not take the deal, the “offer” would be off the table after the trial.  That was the judge’s routine procedure – without hearing any evidence, or knowing anything about the facts of the case, the judge was essentially telling the homeowner “you better consent to judgment and accept a sale date in 120 days or I’m going to rule against you and set an earlier sale date.”

Punishing homeowners for going to trial.  Wow.  Just … wow.  That alone is nuts.  Candidly, I told that story to a local judge (not a fellow defense attorney – a local JUDGE), and he couldn’t believe it.  There is no circumstance – none – where a judge should be taking it upon himself to tell a defense attorney that he is going to lose at trial and he should accept the judge’s deal, and that’s precisely what this judge was doing.

Can you imagine this in any other context?  How about a criminal case … judge tells the defendant “you better accept this plea, as if you go to trial, I’m going to rule against you and impose a harsher sentence.”  Totally nuts.

Anyway, it only got worse from there.  As the “trials” proceeded, they weren’t trials at all.  Nobody even sat at counsel table.  Instead, the judge forced everyone to stand, right in front of the bench, for the trial.  Clearly, the judge wasn’t intending that the “trials” last very long, not even allowing the homeowners or their lawyers to sit down.

As the trials went forward, to my amazement, it was typically not the plaintiffs’ attorneys who were asking the questions, but the judge himself!  Yes, instead of forcing the plaintiffs’ lawyer to question the witnesses and prosecute the cases, the judge took it upon himself to prosecute the cases from the bench.  That didn’t just happen once or twice, either – it was the judge’s routine.

The combination of what I observed – the judge trying to coerce defendants into settling, then prosecuting the cases for the plaintiffs – convinced me that I could not get a fair trial.  So when my case was called, I moved to disqualify the judge.

Once he saw my case was going to be contested, the judge immediately pushed my case to the end of the docket.  Hence, I kept watching the same broken record, one “trial” after another.

Finally, it got to my turn.  Before the “trial” started, I finished my motion to disqualify the judge.  I explained in detail the facts set forth above and how they caused me a well-reasoned fear that the judge could not be fair and impartial.  Motion denied.

Then I moved to continue the trial so I could file a written motion to disqualify.  Motion denied.

Then I moved for a stay pending appeal, as I was entitled to have the appellate court rule on whether the judge could preside on the case before the trial proceeded.  Motion denied.

Then, before the trial began, I argued the plaintiff should not be allowed to introduce certain exhibits into evidence because plaintiff failed to provide copies to me before trial, as the court had ordered.  The judge asked the plaintiff if that was true and counsel admitted it was.  The judge asked if counsel had an excuse and he had none.  The plaintiff was stuck – they violated an order and failed to provide me documents that I was entitled to receive before trial.  But instead of punishing or penalizing the plaintiff, the judge ordered the trial was continued so plaintiff could provide me the documents.

I immediately interjected, telling the judge I did not ask for a continuance.  The judge seemed surprised, asking me what I thought the remedy should be.  I explained that the trial should proceed, but the plaintiff should not get to use the exhibits it failed to provide to me.  That would mean, of course, that the plaintiff could not prove its case (and that I would win at trial), and the judge made it clear that wasn’t an option.  So the judge again ruled the trial was continued.

How frustrating.  The plaintiff screwed up, but I was being forced to come back again on a different day (from Tampa).  So I explained how I had traveled to the trial from Tampa, and that I was prepared, so if I had to come again because the plaintiff screwed up, then I should get fees for having to do so.  Motion denied (technically, deferred ruling until after the case was over, but basically denied).

These are the facts, as they transpired, as they would appear on a transcript.  What the transcript won’t reflect, however, is the indescribably nasty way the judge treated me.  The hostility of his tone.  The anger in his voice.  HOW DARE I come into his court and ask for – no, insist upon! – due process in a foreclosure case.  The hostility was so apparent, I felt compelled to say, as the trial was ending “let the record reflect that the judge is staring at me with an incredibly nasty stare,” or words to that effect.

At that point, the judge was truly irate, inviting plaintiff’s counsel to comment about the judge’s demeanor.  That prompted me, of course, to ask why the judge was questioning the factual basis of my motion to disqualify him.  Then the judge smiled at me, waved, and said “have a nice trip back to Tampa, counselor,” in the most condescending tone I’ve ever heard – not just in a courtroom, but ever.

Read Matthew Bavaro’s post.  This isn’t about me, and it’s not about Mr. Bavaro.  This is about a court system that is repeatedly and systematically causing experienced, reasonable attorneys to believe there is nothing close to due process or fair trials transpiring in foreclosure cases in Miami right now.  Perhaps most alarming is that the judge with whom I had my bad experience was NOT the judge before whom Mr. Bavaro had his.  In other words, the issues in Miami aren’t limited to one judge – multiple judges are causing these concerns.

I get that the judges wear the robes and get to make the rulings.  They have the authority, and no matter how much I disagree with the rulings, they have to be respected.  I get that.  And I’m not suggesting that anyone not respect the judges and not follow their rulings.  However, when the judges don’t follow the law, and act in ways that make it clear they aren’t comporting with requirements of due process, it’s up to us, as advocates, to do whatever possible – within the law and professional ethics – to compel them to do so.  We aren’t doormats – we’re advocates.  Even when it’s uncomfortable, we have to act as advocates for our clients.

I left Miami that day with a continuance.  In virtually every other case, the Plaintiff got a foreclosure judgment, often with little or no opposition.  I talked to several otherdefense  attorneys about the process, and though most shared my concerns, most of them were afraid to say anything or do anything about it (for fear of upsetting the judge).  I’m sorry, but being a doormat isn’t the answer.

From what I understand, the senior judges in foreclosure cases get paid $300/day.  I’d very much like to think that the Miami judges aren’t rushing through trials in this manner because they’re trying to get through the work day faster.  Whatever the motive, however, it’s time – probably past time – that defense attorneys act as advocates and help the judges understand that the processes being described by Mr. Bavaro and myself are wrong.

Mark Stopa

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