Archive for June 26th, 2014

Trial Continuances in Foreclosure-World

I recently had a trial which, in my view, exposed everything that is wrong with foreclosure-world.  But first, a little background …

In most civil lawsuits, it’s up to the parties to set a trial date.  Courts don’t set trials on their own; the parties do.  In foreclosure-world, though, little is normal.  For many months now in Courts throughout Florida, it’s the Courts that take it upon themselves to set cases for trial.  Candidly, this dynamic has always driven me crazy.  From a defense perspective, when Courts take it upon themselves to set trial, it feels like the Courts are helping the banks prosecute their cases – helping them foreclose on homeowners faster.  Some might disagree, arguing either side could win at trial and the Courts are just managing their dockets.  But think about it.  In 99.99% of foreclosure cases, the banks are the only party seeking relief.  Hence, in my view, when a Court takes it upon itself to set a trial, it’s like the Court is saying “you’ve sued for foreclosure, bank?  You want relief from the Court?  Here, come to this trial date so you can foreclose on this house sooner.”  Maybe that’s not what is intended, but as a defense lawyer, that’s how it feels.  (If you disagree, then you tell me – how does a quicker trial date help a homeowner?)

It doesn’t always feel that way, of course.  Sometimes, the good judges in Florida will dismiss cases at trial when the law and facts require it.  So am I saying the system is only fair when cases are dismissed?  Of course not.  For me, the fairness of the system is often seen not in the result at trial, but whether the Court insists on going forward with the trials that it scheduled.

Consider a recent trial I had in Brevard County.  It was a six year old foreclosure case, filed in 2008.  Trial had been set twice by the Court and continued once at the Plaintiff’s request.  Here we were, at trial the second time, and Plaintiff was verbally requesting another continuance.  Plaintiff had no written motion, see Fla.R.Civ.P. 1.460, and, frankly, had no good reason whatsoever for a continuance.

What should a Court do in this situation?  It’s a six-year-old foreclosure case.  The Court set trial on its own initiative, on the basis that it had to advance the case to resolution to manage its docket.  I’m there, per the Court’s Order, ready for trial.  Should the Court grant another continuance?  To get another continuance, the Plaintiff should need to have a really darn good reason, right?  Homeowners certainly wouldn’t get a continuance at trial in a six-year-old foreclosure case without a darn good reason, would they?  So why should a bank?

You read the transcript of the Transcript of the hearing and you tell me.  Did the Plaintiff have a good reason for a continuance?  I sure didn’t think so, and, if I’m being honest, I felt like I thoroughly destroyed the bank’s argument for a continuance.  At trial, the bank argued that a Pooling and Servicing Agreement was off by one number, and that was the reason they needed a continuance.  I was shocked, as the PSA had not been produced in discovery, identified as an exhibit, or in any way mentioned as part of Plaintiff’s case.  For me, this was a totally irrelevant document, yet Plaintiff was using an irrelevant error as a pretense for a continuance to which it was not entitled.  That document was not even relevant, and Plaintiff (as the party seeking the continuance) was not even explaining how it was relevant!

As I argued to the judge, I thought the integrity of the judicial system required that continuance be denied.  Otherwise, as I explained, Courts come across as little more than debt collectors for the banks.  “Here, come to trial and get a judgment.  Oh, you’re not ready for your judgment today?  Come back in a couple of months and get a judgment then.  Oh, you’re still not ready?  Come back in a couple more months and you can foreclose then.”

At some point, particularly when Courts set the trial dates, the integrity of the system requires that these continuances be denied.  If the bank has a really good reason for a continuance – something that, as the judge said in the final paragraph of the transcript, would truly deprive the bank of its day in court (e.g. the witness’ car broke down coming to trial, death in the family, unexpected emergency), then fine – I get that.  But where the bank argues for a continuance based on a document that was not even relevant in the case, six years into a foreclosure lawsuit that had already been continued once – that’s emblematic of a system gone awry.

Mark Stopa

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