Archive for September, 2010

A simple argument for dismissal – Form 1.944

Form 1.944, Fla.R.Civ.P., contains the elements that the Florida Supreme Court requires in a mortgage foreclosure complaint.  The elements are very simple, yet they’re often not pled properly, creating bona-fide arguments for dismissal.  I’ve argued this successfully on numerous occasions in recent weeks, including this morning before Judge Karla F. Wright in Bartow, so I think it’s time I share. 

Fla.R.Civ.P. Form 1.944 requires the plaintiff to allege it “owns and holds the Note and Mortgage.”  Instead of including this allegation in foreclosure complaints, I regularly see plaintiffs (especially in cases handled by Florida Default Law Group) allege something like this:  “Plaintiff is the holder of the Note and/or is entitled to enforce the Note and Mortgage.”  I haven’t kept track, but I suspect I’ve read more foreclosure complaints with that language than I do with the “owns and holds” language required by the Florida Supreme Court. 

This may sound like a minor difference.  It’s not.  By alleging it is the “holder and/or is entitled to enforce the Note,” the plaintiff is making a much, much broader allegation than the Florida Supreme Court permits.  The key is in the definition of the term “entitled to enforce.” 

Florida Statute 673.3011 sets forth the different ways a plaintiff can be “entitled to enforce” a Note.  As the statute reflects, the plaintiff can be (1) the “holder” of the Note; (2) a nonholder in possession of the Note who has the rights of a holder, or (3) a person entitled to enforce the Note pursuant to Fla. Stat. 673.3091 or 673.4181(4). 

Hence, when a plaintiff alleges it is the “holder and/or entitled to enforce the Note” (instead of alleging it “owns and holds” the Note), this begs the question – is the Plaintiff the holder?  A nonholder in possession with the rights of the holder?  Entitled to enforce pursuant to Fla. Stat. 673.3091?  Entitled to enforce pursuant to Fla. Stat. 673.4181(4)?  The way many plaintiffs are pleading it, the Complaint isn’t clear, so a Defendant cannot tell.  (For that matter, the Court can’t tell, either.)  In my view, that’s not just a technical oversight – it’s unduly prejudicial to the Defendant.  And that’s precisely what I tell judges when I argue it.  

“Judge, if you don’t dismiss the Complaint, and force the Plaintiff to allege the basis in which it is entitled to enforce the Note, the grounds for its standing will become a moving target as this case proceeds forward.  I’ve seen it happen before.  We prove the Plaintiff is not the holder, so the Plaintiff tries to say it’s a nonholder.  My client shouldn’t be made to guess the grounds for the plaintiff’s standing to sue.  As this case goes forward towards trial, there shouldn’t be any ambiguity if the Plaintiff alleges itself to be the holder, a nonholder in possession with the rights of the holder, or something else.  Avoiding this uncertainty is why the Florida Supreme Court created Form 1.944. ” 

Like anything else in foreclosure defense, this argument isn’t always going to work.  That said, many judges have agreed with it (appropriately so, in my view) in recent weeks. As I see it, this is a perfectly legitimate basis in which to seek dismissal of a foreclosure complaint. 

(As an aside, the reason the foreclosure mills plead it this way is obvious to me.  They don’t want to take the time to figure out if the plaintiff is the holder, a nonholder in possession with the rights of a holder, or something else, so they bring this broad allegation of “entitled to enforce,” copying that onto every foreclosure complaint.  Essentially, they’re admitting “We aren’t sure of the basis of our standing to foreclose, so we’re going to allege it as broadly as possible and figure it out later.”  Consider this yet another example of sloppiness by the foreclosure mills.)

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It’s not just Jeffrey Stephan, folks!

Many media outlets seem to be suggesting that GMAC’s decision to halt foreclosures in 23 states, including Florida, is a result of Jeffrey Stephan’s false affidavits. 

This is simply not true.  The issue is much bigger.  To illustrate, attached is an Affidavit and a withdrawal of that affidavit signed by Kristine Wilson, as Limited Signing Officer of GMAC Mortgage, LLC. 

More fallout is coming, but clearly the problem is not limited to Jeffrey Stephan.

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Title problems – banks won’t warrant title to their own, foreclosed properties

As I type this, reporters across the country are scrambling to understand why GMAC has stopped all foreclosures in 23 states, including Florida.  The more I think about it, the more I think the answer is clear:

Banks and title insurance companies have realized that title conveyed via foreclosure is unreliable. 

That’s worth repeating. 

Banks and title insurance companies have realized that title conveyed via foreclosure is unreliable.

I’ve been explaining for a long time now, both on this blog and to every judge who will listen – invalid service of process, failure to join all necessary defendants in a foreclosure case (e.g. the mortgage holder of record and junior leinholders), and the bank’s use of fraudulent evidence to obtain a foreclosure judgment have resulted in tens of thousands of foreclosure judgments that are voidable, if not void. 

Let me put it in non-lawyer terms.  Even if a bank wins a foreclosure lawsuit, if service of process on the homeowner was ineffective (and it often is, especially if service was done via publication), or if the bank failed to join all necessary defendants (e.g. junior lien holders or the mortgage holder of record), or if the bank relied on evidence that was fraudulent (like the affidavits of Jeffrey Stephan, described in the blog below), then the Final Judgment may be vacated.  This means, essentially, that even if the bank won a foreclosure lawsuit, was the high bidder at a foreclosure sale, and sold the house to an independent third party, the original homeowner may still ask the Court to vacate the Final Judgment and re-take possession, and ownership, of the home. 

Envision that scenario.  The bank filed a foreclosure suit, won, took title, and sold the property to an independent third party.  Now imagine you’re the indepedent, third party purchaser.  (I know, that may be hard for some of you, but stick with me.)  You bought a home from a bank that obtained title via foreclosure.  You did nothing wrong.  You’re living in a house you purchased from a bank.  Yet suddenly, out of nowhere, the original homeowner, who owned the property before the bank foreclosed, has convinced a court that it still owns the property.  Incredibly, in light of the bank’s failure to prosecute the foreclosure lawsuit the right way, the homeowner is right – it’s still his house.  Hence, you’re being forced to vacate the home that you purchased even though you did nothing wrong. 

If that happened to you, what’s the first thing you’d do?  I know what I’d do – make a claim against the title insurance policy.  That’s what title insurance is for – to protect homeowners in the event of a problem with the title to the property they’ve purchased.  (Title insurance is routine in real estate closings.  The purchaser pays a little extra at closing in exchange for an insurance company agreeing to pay that homeowner the entire sale price in the event the seller does not actually have title to the property.  The way it’s supposed to work, the insurance company collects a little bit at a lot of closings and rarely has to pay anything, so it makes money, and the homeowner has the peace of mind of knowing that if the seller did not have title to the house that the title insurance company will pay.) 

Now imagine this scenario playing out over and over again, thousands of cases at a time.  If you’re the title insurance company, wouldn’t you stop issuing title insurance properties when the bank obtained title by foreclosure?  Absolutely.  It wouldn’t be worth the risk.  You couldn’t possibly afford to stay in business.  As far as I can tell, that’s precisely what is happening right now. 

Title insurance companies have realized that title via foreclosure is unreliable, so they don’t want to write title insurance policies for such properties.

If you’re skeptical, and think I’m being an alarmist, consider this article:

As the article explains, Wells Fargo has stopped warranting title to its own, foreclosured properties.  What does this mean?  Instead of issuing purchasers of bank-owned properties a warranty deed, Wells Fargo is only willing to issue a quit claim deed.  Of course, the difference between a warranty deed and a quit claim deed is huge.  With a warranty deed, Wells Fargo is making an affirmative representation that it owns the property, giving the purchaser legal recourse against Wells Fargo if the bank’s title is defective.  With a quit claim deed, Wells Fargo is making no such representation, giving the purchaser no recourse if the bank did not own the property.  I know that sounds crazy – how can a bank sell a property, pocket the money, not actually own the property, and have no liability?  The absurdity of that proposition is the point of the article.  Essentially, banks are trying to set it up where they can keep the money from the sale of a house (that they did not own) even though the homeowner couldn’t keep the house. 

The question that arises, of course, is this – why would a bank like Wells Fargo be unwilling to warrant title to its own, foreclosed properties?  For me, the answer is clear:

Banks like Wells Fargo realize there are title defects to these properties and they don’t want to face the liability associated with selling properties they don’t actually own. 

In other words, Wells Fargo undoubtedly realizes that it may not be the owner of that property, so instead of warranting that it owns the property, and facing a potential lawsuit later, Wells Fargo wants to shift the risk that it doesn’t own the property onto the purchaser.  Would this happen in every case?  Certainly not.  But for Wells Fargo, it’s a numbers game.  If they’re selling 500,000 houses, they know this problem is going to arise on a certain percentage of them, so they want to transfer the risk from itself to the purchaser. 

This raises perhaps another significant question – if banks won’t warrant title to foreclosed properties, and title insurance companies won’t issue title insurance policies, then what is going to happen with all of the foreclosure cases that are pending?  And all of the homes for which foreclosure is sought?  Candidly, I’m not sure.  Lest you think that’s a copout, I don’t think I’m alone in that feeling of uncertainty.  In fact, I believe the reason GMAC has halted foreclosures in 23 states is because it doesn’t know the answer to these questions, either.  If you disagree, you tell me –

Why would GMAC suddenly stop all foreclosure cases in 23 states? 

What other explanation could there be?

To illustrate my point, suppose you’re the CEO of GMAC.  Would you want to keep foreclosing on properties for which you cannot obtain title insurance policies?  What are you going to do with all of those properties?  You can’t sell them without title insurance (certainly not for fair market value anyway, as few people will want to buy properties without clear title).  What good is a Final Judgment of Foreclosure if you can’t sell the property you’ve obtained? 

I realize I’m speculating a bit.  But doesn’t it make sense that GMAC is stopping all foreclosures, and Wells Fargo is refusing to warrant title to its properties, because they realize the inherent unreliability of the title they’ve obtained via foreclosure? 

The way out of this quagmire is perhaps scarier than the quagmire itself.  As I see it, every property in which there is a title problem is going to have to have another lawsuit filed, either for another foreclosure or a quiet title lawsuit.  That’s how the law works, at least in Florida – if there’s a title problem, the way to fix it is with a quiet title suit or a foreclosure suit.  This raises perhaps my biggest point of all:

every foreclosure mill and every judge that is rushing to “push through” foreclosure cases may be staring at a second round of these cases, on the exact same properties, because the cases were not done correctly the first time. 

If you think that’s an absurd proposition, remember – that’s precisely how Florida law works with respect to tax deed sales, and, in a lot of ways, tax deed sales are just like foreclosure sales (public auctions at the courthouse, high bidder gets a deed from the clerk).  A key difference, at present, is that when someone purchases a property at a tax deed sale, the deed from the clerk does not convey marketable title. After a tax deed sale, the way for a purchaser to obtain marketable title is to file a suit to quiet title (or wait four years).  Given what’s happening right now in our economy, I don’t think it’s a stretch to say this is where we’re headed with foreclosures.  A scary proposition, yes, but this may be where we’re headed. 

If your head is spinning right now, I don’t blame you.  For the average person, here’s what you should take from all of this:


After all, things are absolutely crazy right now.  If you retain an experienced foreclosure defense attorney, and are able to avoid a final judgment of foreclosure, who knows what the future may bring.  Maybe the government will step in and fix this mess.  Maybe the banks will be forced to negotiate with homeowners (because the foreclosure process isn’t working).  There are a ton of possibilities if you defend yourself.  But if you give up, lose your case, and something changes in the future, it may be too late for you to do anything about it. 

If you’re a judge reading this, ask yourself this.  If/when this all comes crashing down, are you going to be able to look at yourself in the mirror, like Judge Anthony Rondolino in St. Petersburg will, and know that you followed the law and forced the banks to prove their entitlement to foreclosure?  Are you going to feel good about how you handled the foreclosure crisis?  Or are you going to realize that you signed thousands of final judgments of foreclosure without evaluating those files, contributing to the problems we’re now facing? 

I realize you cannot change the past.  But isn’t it time that you start being part of the solution and not part of the problem?  The laws are in place for a reason.  Please.  Force banks to prove their case.  Read their affidavits.  Read their motions.  Give each case an honest assessment.  I know you have a lot of cases, but that’s your job.  If you shirk that responsibility, and just “push through” more foreclosures, you may think you’re removing another case from your docket, but all you’re really doing is contributing to the problem that has brought our economy to its knees. 

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GMAC halts foreclosures

In what has quickly become a national story, GMAC has suspended actions in all foreclosure cases in 23 states, including Florida.

There is undoubtedly more to come on this huge, breaking story.  At this point, though, here is what I know (from my own experience as a foreclosure defense attorney with hundreds of cases in Florida). 

Within the past two weeks, I have received notices, in three different cases in which I am counsel, purporting to withdraw an affidavit that had been filed in that case.  There are many similarities among these notices.  Specifically, in all three cases:

1.  The affidavit was used to support a motion for summary judgment (by itemizing the amounts allegedly owed on that note/mortgage). 

Significantly, this is how hundreds of thousands of foreclosure cases have been “pushed through” in Florida – by individuals signing an affidavit stating the total amount owed and the Court accepting that affidavit and granting a Final Judgment of Foreclosure. 

2.  The affiant was Jeffrey Stephan, who purportedly signed, under oath, as a “Limited Signing Officer” for GMAC Mortgage, LLC. 

3.  The Note was securitized, i.e. the Plaintiff is a trust (Deutsche Bank, “as trustee,” or The Bank of New York Mellon, “as trustee”). 

4.  The law firm for the Plaintiff was Florida Default Law Group (one of the three firms currently under investigation by the Florida Attorney General). 

5.  The law firm, Florida Default, tried to withdraw Mr. Stephan’s affidavit “pursuant to Rule 4-3.3, Rules of Professional Conduct of the Rules Regulating The Florida Bar.”  (If you’re not familiar with the language in that rule, click here.  As you can see, this is really serious stuff.  For instance, subsection (b) of the Rule discusses a lawyer’s obligations when a client engages in criminal or fraudulent conduct.)

6.  The law firm, Florida Default, admits “the information in the affidavit may not have been properly verified by the affiant [Mr. Stephan].” 

For a sample Affidavit and Notice, click here – GMAC Affidavit, Withdrawal

Again, I’m sure there will be more to this story in the coming days.  At this point, though, here’s what I’m thinking. 

Florida Default must realize the affidavits signed by Mr. Stephan are either untrue or insufficient to support summary judgment (or both).  Otherwise they would not be taking the unprecedented step of withdrawing the affidavits.  GMAC must realize these same things, or it wouldn’t be taking the unprecedented step of stopping all foreclosure cases. 

What does that mean for the average person?  Well, if you have a case pending and GMAC is the plaintiff or the servicer for the plaintiff, your case will probably be stagnant for a while.  But what about those individuals who have already been foreclosed? 

Rule 1.540, Fla.R.Civ.P., authorizes a party who has lost a case, e.g. via entry of Final Judgment of Foreclosure, to move to vacate the Final Judgment on the grounds of fraud.  Under the circumstances, it’s hardly a stretch to say there may be thousands of people in Florida who have lost their homes as a result of fraud.  

Let me put it this way: 

If you are a defendant in a foreclosure case in which GMAC was or is the Plaintiff, or in which GMAC was or is the servicer, I welcome you to contact my office for a free consultation, especially if Jeffrey Stephen signed an affidavit in your case.

Even if your foreclosure case is already over, there may be grounds to vacate it. 

In fact, you may be able to move back into your home (even if you’ve already been foreclosed). 

If your case is still pending, I strongly urge you to look closely at the affidavits that have been filed in your case.  Have they been signed by Jeffrey Stephan?  Someone else with GMAC?  Bear in mind – just because GMAC is not the Plaintiff does not mean it’s not the servicer, and often it’s the servicer that files affidavits. 

The scariest part about all of this is that, in my view, this is just the tip of the iceberg.  I strongly believe the actions that caused Florida Default to withdraw the affidavits of Jeffrey Stephan, and for GMAC to halt all foreclosure cases, are prevalent in many other cases, with many other affiants and many other banks.  Consider this development yet another reason to defend your foreclosure case with a competent foreclosure defense attorney.  You just never know – maybe we’ll find fraud in your case, too.

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Foreclosure statistics – WHY? (More proof that banks are harming the economy)

A recent article on Yahoo shows that banks foreclosed on 95,364 properties in August, 2010.  Think about that for a moment.  In one month alone, nearly 100,000 homes were foreclosed.  Whenever I see statistics like this, my immediate reaction is to wonder “Why?  What is this accomplishing?” 

Some judges, including Palm Beach County Chief Judge Peter LeBlanc, have tried to justify the increasing number of foreclosure judgments (and the use of foreclosure “rocket dockets” and the use of senior judges) by arguing “it is important to clear the foreclosure cases so that vacant and dilapidated homes can go back on the market, presumably increasing neighborhood property values.”  When I saw this quote from Judge LeBlanc, I blogged about it, below, arguing that banks are harming the economy, not my clients, because banks cause homes to be vacant and abandoned, not homeowners.  If you read today’s Yahoo article closely, you’ll see what I mean.  After all, as Yahoo reports:

“Fewer than one-third of homes repossessed by lenders are on the market”

Ponder that for a minute.  Foreclosures are on the rise, at never-before-seen rates … yet the homes that banks are foreclosing are not being listed for sale.  What does that mean?  Simple –

Banks are causing homes to be vacant and abandoned.

That may sound harsh, but there is no other explanation.  To illustrate, if 95,000(+) homes were foreclosed in August, and banks are listing only 1/3 of those properties for sale, then 60,000 homes that were foreclosed in August are now vacant/abandoned. 

There is no other conclusion that can be drawn here.  The numbers don’t lie.  Banks are causing homes to be vacant and abandoned.  Every time another foreclosure judgment is pushed through, another homeowner is removed from his/her home, causing the home to sit, empty. 

This is what lawyers such as myself and fellow foreclosure defense attorney Matt Weidner have been saying for a long time. 

Why are Florida courts in such a rush to foreclose on homeowners? 

There simply aren’t enough buyers for all of these properties that banks are foreclosing upon, so all that’s happening when courts “push through” foreclosure cases is that homes which were occupied become vacant.  Instead of a family having a place to live, a bank adds another property to its inventory (and that property sits, unoccupied). 

Respectfully, I dare anyone to explain how this helps our economy. 

How does it help for homeowners to be removed from their homes so those homes can sit, idle, unoccupied, not even listed for sale?

How does it help for tens of thousands of homes to become vacant every month? 

I urge judges to ponder these questions when they are asked to sign a foreclosure judgment.  Ask yourself, judges, “am I really helping the economy?”  “Who is being helped here?”  If you don’t think that matters, remember – mortgage foreclosure cases sound in equity.

Where is the equity in foreclosing on another homeowner when that home will sit, unoccupied, without being sold, for months or years? 

I fear that some judges, in their ongoing urge to “clear the backlog” of foreclosure cases from their dockets, are not going to be persuaded by this argument.  If so, then please, at least spare us the argument that Chief Judge LeBlanc made when he told the media that “it is important to clear the foreclosure cases so that vacant and dilapidated homes can go back on the market.”  Respectfully, at this point, we all know that’s simply not true.  In other words, let’s call a spade a spade.  

The only thing foreclosures are accomplishing is filling the bank accounts of fat cat bankers, who are accumulating homes at record rates and waiting to sell those homes so as to maximize their own profits. 

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Forcing judges to listen during a “rocket docket”

Foreclosure defense attorneys, consumer advocates, and homeowners are up in arms over the content of this transcript from a recent mass-motion hearing before a Senior Judge in Palm Beach County.  I encourage you to read the entire transcript, but, essentially, the Senior Judge engaged in various acts that I find, quite candidly, utterly reprehsensible, particularly since they’re taking place on such a widespread level, including: 

1.  Referring, in open court, to plaintiff’s attorneys (from Shapiro and Fishman), as “my lawyers.” 

2.  At the start of the mass-motion calendar, telling dozens of pro se homeowners he’s going to try to “help” them (at a summary judgment hearing of foreclosure, mind you), acting like he’s on their side (by pointing out the unemployment rate in Palm Beach and how homeowners have no options), then giving them legal advice (most notably, by telling them that deeds in lieu and short sales usually “don’t work,” suggesting that homeowners not do them). 

3.  Telling everyone in the courtroom that he’s “heard it all” (with respect to arguments like the bank lacks standing and the bank lost the modification paperwork), as if to generate an excuse not to allow homeowners to be heard in opposition to summary judgment.  

4.  Limiting all parties, even attorneys, to sixty seconds of argument in opposition to summary judgment, even going so far as to “count down” when the attorney has 20 seconds and 10 seconds left.  (This countdown is not reflected in the transcript, but I have it on good word from lawyers who participated in a different hearing on that same mass-motion calendar.)   

5.  Not reading any motions, affidavits, objections, or case law from homeowners or their attorneys (which the judge necessarily couldn’t do given his self-imposed 60-second deadline). 

6.  Granting summary judgments of foreclosure without letting defendants and their attorneys be heard and without reading their written filings, even when the law requires that he not.

7.  Telling everyone in the courtroom, before any hearings had begun, that if he denied summary judgment on their case, he would set it for trial within 30 days. 

I recently engaged in a conversation with a fellow foreclosure defense attorney, wherein I wondered “What would I do in this situation?”  The following is not intended as legal advice, as it’s not possible to give advice about any one particular person’s situation without knowing the ins and outs of the case.  That said, I think it’s worth mentioning – here’s what I’d do in such a situation. 

I would be very aggressive and, essentially, try to force the Senior Judge to listen to my arguments and provide ample time for those arguments, and if the Judge refused, move to disqualify him/her. 

In my view, one of the reasons these “rocket dockets” have gotten so far out of control, stomping all over parties’ right to be heard, is that too few lawyers are willing to stand up to some of these judges and call them out on their improper conduct.  (I say “some of these judges” because certainly not every judge needs to be “called out.”)   

To illustrate, if I’m attending a hearing with 50 or 100 other summary judgment motions all being heard at the same , and I saw a judge do what this Senior Judge did, when it got to my hearing, I’d forcefully tell the Judge that I have numerous arguments in opposition to summary judgment, with case law, and my arguments cannot possibly be heard in sixty seconds.   If the Judge refuses to give me more time, I will ask him/her to review my case law and written objections and affidavit in opposition to summary judgment.  When he doesn’t (because he can’t possible do so in sixty seconds), I will ask the Judge: “Are you refusing to read my client’s affidavit in opposition to summary judgment, written objections and case law?”  If he says that he’s read them but he hasn’t, I’d say “Let the record reflect that you have not read my client’s affidavit, written objections, or case law.”  Unless the Judge changes course and agrees to read them all (hence giving me more than sixty seconds to present my argument), I would make an ore tenus motion to disqualify him from presiding as the judge in that case.  I’d envision saying something like this:

“Judge, your refusal to give me more than 60 seconds of hearing time and refusal to read my written filings and case law in opposition to summary judgment causes my client to fear that you have prejudged this matter and are not neutral and detached.  You’re not even giving me a chance to be heard.  Additionally, you referred to opposing counsel as “your” attorneys, showing you’ve taken their side in this lawsuit, and you gave legal advice to all of the defendants in the courtroom, telling them you were trying to “help” them and suggesting that they not to do a deed in lieu.  You also prejudged that this case would be set for trial if summary judgment was denied.  My client hereby moves to disqualify you from presiding over this case.” 

The judge will probably be taken aback initially.  That’s when I’d say “Florida procedure dictates that I file such a motion in writing, which I obviously cannot do right now.  As such, the law provides that I should ask for a continuance of this hearing in order to file the motion to disqualify in written form.” 

Obviously, depending on what the Judge says, this may not play out exactly like I’ve typed it.  The key, though, in my view, is to ensure I make the motion to disqualify before the judge rules on the summary judgment motion.  If I were to wait until after the Judge grants summary judgment, the motion to disqualify would look like sour grapes, and there’s legions of cases that hold that a judge cannot be disqualified merely because he ruled against you.  On the right fact pattern, though, such as the one set forth above, I strongly believe a motion to disqualify the judge would and should be granted.  (To illustrate, the Motion to Disqualify that I discussed, below, was granted.)  Of course, I can’t make the Judge grant the motion, even if the law requires that he do so.  However, I could go to the appellate court, as I’ve done before when a judge improperly denied a motion to disqualify.  See Case No. 09-1278 in Florida’s Second District Court of Appeal (granting petition for writ of mandamus, directing judge to disqualify himself).

Many lawyers refrain from going down this path out of fear of upsetting the judge.  I’m not oblivious to that argument, particularly if it’s a judge you will appear before on a regular basis.  However, if it’s clear to me that the judge isn’t giving homeowners a chance to be heard, and is granting summary judgments that shouldn’t be granted, then, the way I see it, I’m not losing anything even if the motion to disqualify upsets him because he wasn’t going to rule in my favor regardless.  If more people were willing to “call out” judges on these facts, then maybe these judges would get out of their comfort zone and start to realize the extent of their improprieties.    

What is the right fact pattern to seek a judge’s disqualification?  There are legions of reasons why a judge should properly be disqualified from a case.  Given what’s happening in Florida courtrooms today, particularly in foreclosure cases, it’s worth discussing a few:

1.  Prejudging a case and/or refusing to let a party be heard.  What is most irritating to me about the Senior Judge’s conduct, above, was the fact that he had obviously prejudged the case.  He all but admitted it at the start of the hearing, telling everyone he’s “heard it all,” then limiting all defendants and their attorneys to sixty seconds of hearing time.  If a judge refuses to allow a party to be heard, or has prejudged the outcome of the case, a timely motion to disqualify should be granted.  See Marvin v. State, 804 So. 2d 360, 363 (Fla. 4th DCA 2001) (“A trial judge’s announced intention before a scheduled hearing to make a specific ruling, regardless of any evidence or argument to the contrary, is the paradigm of judicial bias and prejudice.  We could not imagine a more telling basis for a party to fear that he will not receive a fair hearing.”); Barnett v. Barnett, 727 So. 2d 311 (Fla. 2d DCA 1999) (requiring judicial disqualification where the judge’s comments during trial created the impression that he had prejudged the case); Wargo v. Wargo, 669 So. 2d 1123 (Fla. 4th DCA 1996) (Writ of Prohibition issued where the judge began to rule without giving a party a chance to be heard). 

The most obvious example of how the Senior Judge had prejudged the foreclosure cases before him was when he said that if he denied summary judgment that the case would be set for trial within 30 days.  Though some may think that was a benign problem in light of everything else that transpired (and in a sense I’d agree), the setting of trial is not governed by the denial of a summary judgment motion – and it certainly isn’t automatic upon the denial of summary judgment.  In fact, a judge is precluded from setting a case for trial unless it is “at issue,” as defined by Fla.R.Civ.P. 1.440.  Here, the Senior Judge was openly telling everyone in the courtroom that he was going to set a case for trial (even if it was not “at issue”), if summary judgment was denied.  That’s wrong.  If, for example, a motion to dismiss had yet to be adjudicated, and the defendant had yet to file an Answer, such a case should certainly not be set for trial.  As the Fourth District has noted, “strict compliance with Rule 1.440 is mandatory.”  See Bennett v. Continental Chemicals, Inc., 492 So. 2d 724 (Fla. 4th DCA 1986) (en banc) (reversing a final judgment where trial was set prematurely); see also Precision Constructors, Inc. v. Valtec Construction Corp., 825 So. 2d 1062 (Fla. 3d DCA 2002) (“Failure to adhere strictly to the mandates of Rule 1.440 is reversible error.  Accordingly, the judgment is vacated and the cause is remanded for a new trial.”). 

The fact that the Judge had predetermined the propriety of a trial date, without regard to Rule 1.440 and without regard to the facts of each particular case, should have, upon timely motion, required his disqualification.  The judge’s actions also illustrate a far larger problem – that some of these senior judges are willing to do anything to “push cases through,” even if it means disregarding the law.  (It just so happens, in this instance, that most people don’t know the law about 1.440, so nobody was in a position to call him out on what he was doing, but that doesn’t make the misconduct right.)  Personally,  I don’t know this particular Senior Judge, but I have little doubt that he knows the requirements of Rule 1.440 – any judge who had been on the bench for any period of time would.  Hence, it’s clear to me that this judge knows the requirements for setting a case for trial but was disregarding them to “push cases through.”  Again, that’s wrong.

2.  Ex parte communications.  When a judge communicates with one party or his/her attorney about a pending case outside the presence of the other party and/or his attorney, that’s called an ex parte communication.  Given how these foreclosure hearings are set up nowadays, I suspect this happens more often than anyone could imagine.  It happened to me recently, and I discussed that situation in detail, below.  Anyway, think about the setting – the judge has a lawyer from Shapiro & Fishman, Florida Default, or some other foreclosure mill in his/her chambers for an hour or two, hearing one case after another, but the defendant and/or counsel are present for just a small portion of that time.  Is it crazy to think the Judge is talking to the plaintiff’s attorney about the case outside the presence of the homeowner and/or his attorney?  Certainly not.  That said, a motion to disqualify cannot be based on a suspicion of impropriety – the homeowner or counsel has to know that an ex parte communication took place.  If it did, a timely motion to disqualify should be granted.  See State v. Riechmann, 777 So. 2d 342 (Fla. 2000) (“Canon 3B(7) of the Code of Judicial Conduct provides that a judge shall not initiate, permit, or consider ex parte communications … We are not concerned with whether an ex parte communication actually prejudices one party at the expense of the other.  The most insidious result of ex parte communications is their effect on the appearance of the impartiality of the tribunal.  The impartiality of the trial judge must be beyond question.”); see also Smith v. State, 708 So. 2d 253 (Fla. 1998); Pearson v. Pearson, 870 So. 2d 248 (Fla. 2d DCA 2004) (“Petitioner’s allegation of an ex parte communication alone established a reasonable basis to fear she would not receive a fair hearing in subsequent proceedings.”).

3.  Giving legal advice to parties or their counsel.  Judges are supposed to be neutral and detached arbiters.  They are absolutely precluded from giving legal advice to one side or the other.  If they do, a legally sufficient motion to disqualify should be granted.  That’s why, in my opinion, the Senior Judge’s conduct, above, in telling homeowners he was going to “help” them and suggesting that they not do a deed in lieu of foreclosure would have, upon timely motion, required his disqualifiaction.  See Blackpool Associates, Ltd. v. SM-106, Ltd., 839 So. 2d 837, 838 (Fla. 4th DCA 2003) (“We grant relief in connection with the trial court’s order that denied disqualification as the trial court provided Blackpool/Kevin Murphy with legal advice and suggestions.”); Cammarata v. Jones, 763 So. 2d 552, 553 (Fla. 4th DCA 2000) (“we conclude the trial judge’s suggestions to the Respondent’s counsel caused the Petitioners to have a well-rounded fear that they would not have a fair trial); Shore Mariner Condo. Ass’n, Inc. v. Antonious, 722 So. 2d 247, 248 (Fla. 2d DCA 1998) (“[t]rial judges must studiously avoid the appearance of favoring one party in a lawsuit, and suggesting to counsel or a party how to proceed strategically constitutes a breach of this principle.”); Chastine v. Broome, 629 So. 2d 293 (Fla. 4th DCA 1993).

4.  Filing a JQC Complaint.  On a fact pattern such as that provided above, I feel like I’d have no choice but to report the judge to the Judicial Qualifications Committee (particularly if the judge denied the motion to disqualify and entered summary judgment).  This is, essentially, a grievance against the judge.  I realize this is an extreme measure, but, in my opinion, this judge’s conduct was just that bad. If lawyers and homeowners started filing JQC complaints upon egregious conduct such as this, perhaps judges would start to “get it” and change their conduct.

If I had a JQC Complaint filed against a judge, and had another hearing before that same judge, I’d move to disqualify that judge on the basis that the JQC Complaint was pending.  Florida law does not “automatically require” that the motion to disqualify be granted merely because of the pending JQC Complaint.  See In re Code of Judicial Conduct, 659 So. 2d 692 (Fla. 1995).  However, if the JQC Complaint was predicated on the judge’s predetermination of the case and refusal to let me be heard, and the judge was about to begin another hearing with the same format, I firmly believe that Florida law would require his disqualification.  After all, I’d be complaining about the very conduct that gave rise to the JQC Complaint, and I don’t see how any judge could be neutral and detached when that same issue is coming up over and over again. 

This is not meant to be an exhaustive list, and as explained above, it’s not meant to be legal advice.  That said, when discussing a motion to disqualify a judge, a few things bear mentioning: (1) motions to disqualify must be brought within 10 days of the party learning of the conduct that gave rise to the motion or the argument is waived and must be denied; (2) the motion must be signed by the party, under oath, and if there’s an attorney on the case, he/she must sign a certificate of good faith, and (3) the motion must be brought to the attention of the judge, ensuring that the judge knows about the motion and has a chance to rule.  It sounds daunting that the judge for whom disqualification is sought gets to rule on the motion, but the good part is that the judge must accept all facts in the motion as true and can only rule on the legal sufficiency of the motion.  That’s also why appellate courts review the motion de novo

The issues set forth herein are complex.  Essentially, it’s another example why it’s a good idea to retain an experienced foreclosure defense attorney to help with your case.  Meanwhile, my point in writing this blog is to make people realize that when judges act like this Senior Judge acted, he shouldn’t be able to get away with it.  

Such conduct needs to be “called out” by everyone to help ensure a fair judicial process for everyone involved.

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Attorneys’ fees should NEVER be awarded by summary judgment

As a foreclosure defense attorney who represents homeowners throughout Florida, I’ve become all too familiar with the shortcuts taken by foreclosure mills in trying to “push through” foreclosure cases.  One tactic I repeatedly see is requests for attorneys’ fees as part of a summary judgment motion.  Typically, the plaintiff’s attorney signs an affidavit that his fees are reasonable, and another attorney, acting as an “expert,” signs an affidavit opining the same, and the bank requests that these fees be included as part of the Final Judgment of Foreclosure. 

This may sound like a legitimate approach, but here’s the thing.  If you object to the court’s consideration of attorneys’ fees by affidavit, and insist on the “expert” testifying live, in open court, you should prevent the court from awarding attorneys’ fees at a summary judgment hearing.  This is not an area of law in which the judge has discretion;

attorneys’ fees cannot be awarded based on affidavits when the opposing party insists on live testimony. 

When I see this issue (and I see it in essentially every foreclosure case), here’s what I do.  I file an objection, and argue as follows:

  1. In its Motion for Summary Judgment, Plaintiff attempts to tax attorneys’ fees and costs.  In support, Plaintiff provides an affidavit of its counsel and an affidavit of an alleged expert. 
  2. The affidavit of this “expert” lacks facts and is conclusory in nature.  Under the circumstances, Defendants want to cross-examine this alleged “expert” as to the factual basis of the affidavit. 
  3. Under controlling law, attorneys’ fees may be awarded upon presentation of affidavits, without live testimony, if the party opposing the entry of fees does not object.  See DM Records, Inc. v. Turnpike Commercial Plaza, 894 So. 2d 1030 (Fla. 4th DCA 2005); Ins. Co. of North America v. Julien P. Benjamin Equip. Co., 481 So. 2d 511 (Fla. 1st DCA 1985). 
  4. In this case, however, Defendants are objecting to the use of affidavits in lieu of live testimony.  As such, an evidentiary hearing on the Motion is required.  See Dvorak v. First Family Bank, 639 So. 2d 1076 (Fla. 5th DCA 1994); Dhondy v. Schimpeler, 528 So. 2d 484 (Fla. 3d DCA 1988); Soundcrafters, Inc. v. Laird, 467 So. 2d 480 (“the trial court erred in permitting Laird’s sole expert to testify by way of affidavit over Soundcrafters’ objection.”); Terrazzo, Inc. v. Altman, 372 So. 2d 512 (Fla. 3d DCA 1979); Geraci v. Kozloski, 377 So. 2d 811 (Fla. 4th DCA 1979) (“In an adversary proceeding such as this the determination of an attorneys fee for the mortgagee based upon affidavits over objection of the mortgagor is improper. Evidence should be adduced so that the full range of cross examination will be afforded both parties.”). 
  5. As evidence is not permissible at a summary judgment hearing, see Fla.R.Civ.P. 1.510, it would be reversible error to award attorneys’ fees via summary judgment.  See cases, supra. 

As I see it, this is a really simple way to prevent banks from tacking on attorneys’ fees at a summary judgment hearing.  Banks and their lawyers don’t like it, but short of asking the judge to ignore the law, there’s not much they can do about it.   

One could argue that this is a bad idea because banks can come back and re-set a hearing, with live testimony (after entry of Final Judgment) and at that point they’ll have more attorneys’ fees to tax because we made them come back for another hearing.  In theory, that’s true.  But let me ask you this – how often do you think they’ll actually re-set another hearing?  Once the bank gets a final judgment of foreclosure, do you think they’re going to bother coming back into court, for a separate hearing, with their expert, to present testimony about a few thousand dollars in attorneys’ fees?  Before you answer, bear in mind – often, the bank’s attorney, as well as the fee “expert,” are in a separate part of the state and will do anything possible to avoid having to travel to a hearing.  Perhaps better yet, Florida law typically does not permit attorneys to recover fees for the time spent traveling to a hearing, particularly an out-of-town hearing.  With this in mind, let me ask again – if you successfully prevent the inclusion of attorneys’ fees in a final judgment of foreclosure, do you really think two lawyers are going to travel across the state for an in-person hearing to try to tack on a few thousand dollars in attorneys’ fees (in a case where they’ve already obtained a foreclosure judgment)?  I sure don’t.  That’s a big reason why I file objections to fee awards by affidavit, such as the one here

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