Archive for January 27th, 2013

Sharing Hope and Moving Boulders: A State-Wide View of Foreclosure Defense

In the past few years – heck, the past few months – I’ve traveled all over Florida representing homeowners facing foreclosure.  From Miami to Brooksville, Jacksonville to Fort Myers, and all areas in between, I’ve been there.  Today, I want to take a minute and explain why.

First off, I realize my state-wide approach may seem nuts.  Fellow foreclosure defense attorneys wonder why I do it.  If it could talk, my two-year-old Toyota Prius (it of the nearly 100,000 miles) would ask why.   In some ways, it would be easy to just keep representing homeowners in the Tampa/St. Pete area and stay local.  But I just can’t.  I can’t because of what I see in some of these other counties, and because of what I don’t see.

I was in Hernando County (Brooksville) last week, and I argued that a case should be dismissed based on the plaintiff’s failure to comply with the conditions precedent in paragraph 22 of the mortgage.  I showed Judge Lisa Herndon the letter the bank allegedly sent to my client but argued the letter was insufficient because it did not specify what was required.  I cited established case law prohibiting judges from re-writing contracts, even where they thought those contracts created an inequitable result.  I provided copies of appellate decisions requiring acceleration clauses in mortgages to be enforced as written.

Within 30 seconds, I could tell Judge Herndon had never heard any of it previously.  By my rough count, that makes 21 times I’ve made this argument before a judge who hadn’t heard it previously.  21!  Usually the judge admits it, but I can always tell by the look on the judge’s face – a look of surprise and intrigue, kind of like how my kids look when they’re about to eat a piece of food they’ve never eaten before.  This isn’t an indictment of those judges, it’s an indictment of the defense system as a whole.  I’ve been making this argument all around Florida for many months, yet no foreclosure defense lawyer has argued it before this judge, even once (even though she is one of just two judges who hears foreclosure cases in that county) … really?  How can that be?  And how can I not continue taking cases in that county knowing there is nobody else educating the judge on such significant defenses in foreclosure cases?

Here’s the real kicker – Judge Herndon was incredibly receptive to the argument, attentively listening, reading the case law (including numerous circuit court orders from judges in other counties), and eagerly awaiting a conversation with Judge Tatti, the other foreclosure judge in Hernando, to see if anyone had made that same argument before him.  So here we had a foreclosure judge who was fair and willing to listen, but nobody was making the argument!  How can I not make the drive to that county?

A week or so prior, the same thing happened before Judge Traynor in St. Johns County (St. Augustine).  Judge Traynor was/is the only circuit judge assigned to foreclosure cases in St. Johns, with only a few senior judges underneath him, and he quickly indicated he hadn’t ever heard the argument, either!  But like Judge Herndon, he was willing to listen and read case law, even throwing in a few compliments on the “unique” argument!  That drive from one end of I-4 to the other is a pain in the rear, but how can I not make it if it means helping the judge in charge of an entire circuit understand a bona-fide defense to foreclosure?

“Changing the world” might sound cliche, but I certainly believe we can change Florida.  One case at a time, one judge at a time, and one client at a time – we can change the foreclosure process … but only if we’re willing to try.

Not all experiences in the far-away counties have been as heartwarming or rewarding.  For instance, I went to Fort Lauderdale a few days ago and asked the judge to dismiss this case on a fact-pattern that has often resulted in dismissal.  Unfortunately, this judge refused to look at a single paper I handed him, denied the argument without explanation, then took it upon himself to say he was setting a trial.  When I pushed for an explanation on his ruling and objected to trial as premature, the judge decided, completely on his own, to disqualify himself from the case (saying only it was ”because of how I was looking at him”).

Really?  I come to court with well-taken arguments and case law, the judge refuses to read any of it, and when I refuse to be a doormat and accept a premature trial on a rocket-docket, he decides it’s easier to remove himself from the case so as to not have to deal with me any more?  Call me idealistic, but that’s not the vision I have for the justice system in my state.  I’m sorry, but administering justice and entering foreclosure judgments as quickly as possible are not one and the same.

Some would argue that’s a judge/county I should just avoid.  Why bother?  When judges in Tampa/St. Pete regularly go out of their way to be fair to both sides, and a judge in a county that’s four hours away is so obviously hostile towards defense arguments, why not just avoid that county/judge?  For me, this unfortunate episode just means there’s more work to be done in Broward.  Sometimes, convincing courts in foreclosure cases is like moving a boulder.  You’re not going to do it with one push, or even several – it takes lots of long, steady, sustained effort to get the boulder moving in the right direction.

Moving a boulder sounds arduous, and in some ways, it is.  But what’s the alternative?  I know if I’m getting treated that way, and I have as much foreclosure defense experience as virtually anyone, I can only imagine how it is for others, particularly those without counsel.  So walking away is not an option, particularly when that same county is now setting up 100 foreclosure trials per day.  Yes, 100 per day.  Think about that for a minute.  You thought rocket dockets were over?  Pfft.  Not in that county … and it’s not alone.

Part of my hope is that everyone in the foreclosure crisis will think about the legacy they’ll leave behind.  This crisis will end eventually.  When it’s over, how will citizens remember the court system in their county?  Will the people know the judges were fair and impartial, always striving to follow the law?  Or will the citizens believe the court was set up to enter foreclosure judgments as quickly as possible, with the end (getting cases off the dockets) always justifying the means?  While some judges are obsessed with the size of their dockets, there truly isn’t a more important question in the foreclosure crisis than how the public views the judiciary.  The crisis will end, but the perception of the courts will remain.

Lest it appear I’m picking on Broward, I’m not.  I recently recounted an awful experience in Miami-Dade, and there are many other counties that are, shall we say, less than friendly to the defense side.  How do I summarize foreclosure defense in such counties?  One word – sadness.  It’s sad when an experienced litigant goes to court in some counties (before some judges, anyway), on fact-patterns that are winners in other counties (not every time, but lots of times), knowing there is basically no chance of winning in that particular court.  The rules and the laws are the same throughout Florida, so there’s really no legitimate way to explain why we have a fighting chance in some courtrooms but no chance in others.

If I’m sounding critical, I don’t mean to be.  My point isn’t to be critical; my objective is to share hope.  I hope all of Florida’s courts will soon realize the system doesn’t have to sacrifice justice for expedience.  For those that do, I hope they look to counties like Pinellas, Pasco, and Hillsborough and realize there are better ways to deal with the foreclosure crisis.  At the end of the day, that’s what motivates me to keep traveling to Jacksonville and Ft. Myers and Miami and numerous other cities in Florida … it’s the feeling that fairness doesn’t yet exist in many of these counties, but it should.

If I lose, fine.  I’m not happy, of course, but if the judge listened and tried to follow the law, that’s all I can ask, really.  But I’ll be darned if I lost because the playing field isn’t level.  Don’t expect me to just suck it up and take it if the judge makes it obvious he/she views his/her job as entering foreclosure judgments as quickly as possible, the law and the facts be damned.  There’s value in expediency, but there’s more value in justice.

Not all Florida counties agree with my views here, at least not yet.  One day soon, I hope they will.  One day soon, I hope I won’t feel like I have to drive/fly to these far-away counties to ensure justice.  Until then, I’ll keep driving and keep hoping and keep trying to move boulders.  Maybe it won’t change the world, but at least I’ll know I did my best to uphold the justice system throughout my state.

Mark Stopa

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