Posted on October 18th, 2010 by Mark Stopa
In response to my post about the perverse judicial procedures in Lee County, a fellow foreclosure defense attorney commented about how the foreclosure mills have “fill-in” attorneys, who are not counsel of record, argue at hearings. This happens a lot in counties like Lee and Orange, where judges don’t allow phone appearances (and the foreclosure mills don’t have offices, so, instead of driving, they have local counsel from other firms “fill in”). I replied to the comment, but this issue is worth a separate blog.
I’ve had “fill-in” or “coverage” attorneys try to argue at my hearings. Respectfully, it shouldn’t happen. In fact, it’s never happened in a case where I’m counsel. Here’s why.
Florida Rule of Judicial Administration 2.505(e) lists the ways in which a lawyer can make an appearance in a case for a client. There are just three: (1) the attorney files the party’s first pleading; (2) the attorney stipulates to the substitution with opposing counsel, the client consents in writing, and the Court approves the stipulation via Order, or (3) the attorney files and serves a Notice of Appearance.
If you’re a lawyer, and want to argue at a hearing, you must do one of these three things. If you don’t, then guess what? You’re not counsel and you don’t get to talk/argue at a hearing! This may sound harsh or overly technical, but this is what the Second District ruled in Pasco County v. Quail Hollow Props., Inc., 693 So. 2d 82 (Fla. 2d DCA 1997). The court’s rationale in Quail Hollow was clear (and makes sense if you think about it):
“The court must be able to rely on representations of attorneys because such representations bind the client.”
If an attorney is “filling in,” but is not counsel of record, then he cannot bind the client, so he shouldn’t be permitted to speak/argue at a hearing. It’s really that simple.
For what it’s worth, I’ve made this argument many times and, up until this point, I’ve always prevailed. If you haven’t made the argument before, it may feel awkward (to try to prevent a fellow attorney from arguing at a hearing), but you can easily flip it around and make the “fill-in” attorney feel awkward. All you have to do is tell him to file a Notice of Appearance. For instance, after citing Rule 2.505 and Quail Hollow, I’d say something like this:
“Judge, I have no problem with this lawyer arguing at this hearing. All he has to do is file a Notice of Appearance. If he’s not willing to do that, then obviously he’s not counsel of record for the Plaintiff, and if he’s not counsel of record, then he shouldn’t be able to speak.”
Once you say this, you know what invariably happens? The lawyer declines to file a Notice of Appearance. At that point, you’re the only one at the hearing, so the Judge basically has two choices – let the hearing proceed without Plaintiff’s counsel or re-set the hearing.
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Posted on October 18th, 2010 by Mark Stopa
As a foreclosure defense attorney who has defended hundreds of cases throughout Florida over the past few years, I’ve seen an indescribable number of unusual procedures envoked by Florida courts to accelerate the adjudication of foreclosure cases. Senior Judges. Rocket dockets. Ex parte Orders on contested matters, granted without a hearing. Unilaterally scheduled hearings. Judges denying Motions to Dismiss without a hearing. Judges granting summary judgment without a hearing. Judges granting summary judgment before a hearing. These procedures may not seem all that unusual to non-lawyers or even some lawyers who aren’t litigators, but as a lawyer who has litigated cases his entire career, these procedures are, respectfully, offensive.
In recent days, I encountered two more “procedures” being employed on a widespread basis that really got my gander up.
LEE COUNTY: PERVERSE JUDICIAL PROCEDURE
Judge Carlin in Lee County (Fort Myers) routinely enters an Order Setting Case for Docket Sounding, sua sponte, right after a case is filed, requiring the personal attendance of all lawyers (on a date selected by the Judge) for a docket sounding, at which the Court “will” enter summary judgment or set a trial date. Such Orders include the following language:
THE COURT ON ITS OWN MOTION DETERMINES THIS CAUSE IS AT ISSUE AND READY TO BE SET FOR TRIAL. …
If this case is appropriate for a Motion for Summary Judgment, either party may Notice the Summary Judgment to be heard at the Docket Sounding. Otherwise, the day and time certain for the start of trial will be determined at docket sounding. …
All discovery shall be completed prior to the docket sounding. The conduct of discovery subsequent to the docket sounding shall be permitted only on the order of the Court for good cause shown and which will not delay the trial of this cause.
Respectfully, I find this Order so offensive that I felt compelled to file a Motion to Disqualify Judge. I encourage you to read the entire motion, but here’s the Cliff Notes’ version:
First off, this case is not “at issue,” as defined by Fla.R.Civ.P. 1.440, as Defendants’ Motion to Dismiss has yet to be heard and Defendants have yet to file an Answer. See Precision Constructors, Inc. v. Valtec Constr. Corp., 825 So. 2d 1062 (Fla. 3d DCA 2002); Bennett v. Continental Chemicals, Inc., 492 So. 2d 724 (Fla. 1st DCA 1986) (en banc). It is highly inappropriate for the Judge to predetermine that he “will” enter summary judgment or set a trial date when my clients take the position that the Complaint does not even state a cause of action. For instance, how does the Judge know that the Complaint won’t be dismissed altogether, as we request? By saying he “will” set a trial date or enter summary judgment, the Judge has, in my view, predetermined that he will not dismiss the case even though the Motion to Dismiss is outstanding. Similarly, the Judge has predetermined that he “will” set a trial date or grant summary judgment irrespective of what my clients have to say about the matter. Predetermining a legal ruling without letting the parties be heard is the epitome of unfairness and requires disqualification. See Marvin v. State, 804 So. 2d 360 (Fla. 4th DCA 2001); Barnett v. Barnett, 727 So. 2d 311 (Fla. 2d DCA 1999); Wargo v. Wargo, 669 So. 2d 1123 (Fla. 4th DCA 1996). That may sound harsh, but if the Judge were open-minded about granting the Motion to Dismiss, then he wouldn’t be setting a trial at a docket sounding on December 8, 2010.
There is a standard procedure for the setting of trial – motions to dismiss are adjudicated, an Answer is filed, all motions directed to the pleadings are disposed of, the case is “at issue,” and then trial is set. It disappoints me greatly that this Judge is so intent on “pushing through” foreclosure cases that he would require cases be set for trial at a time when it is clearly premature to do so.
Second, the Judge bent over backwards to provide a hearing date for a motion for summary judgment for Plaintiff. If Plaintiff wishes to prosecute its foreclosure lawsuit, that should be Plaintiff’s obligation – not the Judge’s. By putting his own desires to prosecute this case above all else, essentially injecting himself as a participant in the proceedings by causing the case to be prosecuted, the Judge has shown he is not neutral and detached.
Third, the Judge set the docket sounding sua sponte, without clearing the date with the undersigned, refuses to allow phone appearances, and threatens sanctions for non-attendance. This is highly irregular and grossly prejudicial, particularly since I’m an out-of-town attorney. It’s as if the Judge is trying to make it hard for attorneys to defend foreclosure cases. Respectfully, I should be able to take cases in Lee County without worrying that the Judge will sua sponte order me to attend a hearing, in person, without clearing the date with my calendar. Also, Fla.R.Jud.Admin. 2.530 requires that phone appearances be granted for hearings of 15 minutes or less absent “good cause.” At minimum, the Judge should permit me to argue the absence of good cause to preclude a phone appearance. (The Judge may argue the existence of an Administrative Order precluding phone appearances, but, respectfully, such an Order is trumped by Rule 2.530, as the Florida Supreme Court has the exclusive authority to create rules of practice and procedure in all courts.) (Worth noting – I prefer to appear for most hearings in person, but if I so choose, I should certainly have the option to appear by phone.)
Fourth, the Judge has set a hearing to adjudicate summary judgment motions even though Plaintiff has not even filed such a motion. It seems the Judge is suggesting to Plaitiff’s counsel to file such a motion in this case. Perhaps Plaintiff would not have done so. Perhaps Plaintiff does not believe this to be a case where summary judgment is appropriate. By suggesting otherwise, and encouraging Plaintiff to set a hearing on a yet-to-be filed summary judgment motion, the Judge has given “tips” or “suggestions” to Plaintiff which are legally impermissible and mandate disqualification. See Shore Mariner Condo. Ass’n, Inc. v. Antonious, 722 So. 2d 247 (Fla. 2d DCA 1998); Blackpool Associates, Ltd. v. SM-106, Ltd., 839 So. 2d 837 (Fla. 4th DCA 2003); Cammarata v. Jones, 763 So. 2d 552 (Fla. 4th DCA 2000).
Fifth, the Judge set a discovery cutoff of December 8, 2010, giving Defendants grossly inadequate time to conduct discovery. As a litigator, let me be eliminate any doubt – two months is a grossly inadequate period of time to conduct discovery. Typically, discovery lasts at least a year – in an extremely unusual situation, six months. By giving just two months for discovery, it’s as if the Judge is saying “this is just another foreclosure case – there’s nothing Defendants can say that will matter; there’s nothing they will find in discovery that will matter.” Respectfully, my clients are facing a foreclosure on their home. They deserve a fair chance to defend, just like any other party.
In sum, I don’t know that I’ve ever seen a standard procedure like that being employed in Lee County foreclosure cases. The Judge sua sponte sets a docket sounding in a case the Plaintiff was not prosecuting (at a time when the Motion to Dismiss was still outstanding), refuses to let out-of-town counsel appear by phone, gives two months to complete discovery, and announced summary judgment will be entered or trial set without giving Defendants a chance to be heard. Respectfully, I think it’s time that the Lee County judges set aside their agendas and preconceived notions about foreclosure cases and restore some semblance of normal procedure to these cases.
BREVARD COUNTY: PERVERSE JUDICIAL PROCEDURE
The case I’m about to write about started out like many others. My client was sued, I filed a Motion to Dismiss, and the Plaintiff made no attempt to prosecute the case in the ensuing months. Then, out of the blue, I received a Notice of Hearing from a Senior Judge, sua sponte, setting a hearing on the Motion to Dismiss less than 30 days out. In my eyes, everything about the Notice of Hearing was inappropriate. (Read it and you’ll see what I mean.) It was as if the Judge was saying “don’t bother attending the hearing – I’m going to deny the Motion to Dismiss.” I found the Notice of Hearing so offensive that I felt compelled to file this Motion to Disqualify Judge.
I don’t want anyone to think I like filing motions to disqualify judges. I don’t. But sometimes, I feel like I have no choice.
Here, for example, the Judge acted on his own to set a hearing in a case the Plaintiff was not prosecuting. Why? The Plaintiff had done nothing to advance this case towards judgment, choosing, for whatever reason, to keep the case dormant. Nonetheless, the Judge took it upon himself to set a hearing. Why? From the perspective of a defense attorney, this is grossly unfair. After all, my clients aren’t seeking any relief, so if the Judge is actively trying to prosecute the case, then it seems clear he’s aligned with the Plaintiff. It was as if the Judge injected his own interests into the case, giving them priority above all else.
Perhaps worse yet, the content of the Notice of Hearing made it clear the Judge had predetermined his ruling on the Motion to Dismiss. What I found most egregious, even moreso than the Judge basically instructing me to withdraw the Motion to Dismiss, was the Judge’s announced intention to consider facts outside the four corners of the Complaint (not just in this case, but, apparently, on a systematic basis). To illustrate, the Judge notes:
…the fact that an endorsement is not shown on the copy of the Note does not create a standing issue as the note copy is usually taken from the closing file before it is transferred to another lender, etc.
Respectfully, the Judge’s statement in this regard, in a Notice of Hearing, is way out of line. There is nothing in the Complaint that in any way supports this factual assertion (in this case or any other), and only the facts in the Complaint can be considered in a Motion to Dismiss. Given his experience as a judge, the Judge knows this very well, yet he’s obviously willing to disregard the law on a systematic basis so as to “push through” foreclosure cases. This may sound harsh, but if there is a legitimate reason why the Note attached to the Complaint does not contain the requisite indorsement, then Plaintiff should be required to plead that fact, with some explanation. Absent such an explanation, the absence of an indorsement means Plaintiff is not the “holder” as a matter of law.
Even if the Judge disagrees with this legal assertion, for him to assume the copy of the Note attached to the Complaint is from the closing file, based on his experience with other cases, shows he has prejudged this case. Here, for example, perhaps the note attached to the Complaint is a copy of the original, meaning the original lacks the requisite indorsement. That being the case, dismissal should be required, but the Judge has already predetermined otherwise, without reviewing the file and without giving the parties a chance to be heard.
I’m also taken aback at how the Judge gave advice to Plaintiff’s counsel via the Notice of Hearing. Essentially, the Judge told counsel “if Defendant argues for dismissal based on the lack of an indorsement on the note attached to the Complaint, then make sure you argue that the Note attached to the Complaint is not the original Note and was from the origination file and the original Note contains an indorsement.” It is axiomatic that “tips” of this type are not permitted. See Antonious, Blackpool, and Cammarata, supra.
Compounding these concerns, the Judge set the Motion to Dismiss for hearing sua sponte, without making any attempt to coordinate a hearing date with the undersigned, and requires me to appear in person. This is unduly prejudicial, particularly since: (i) the hearing was set just 30 days out; and (ii) I practice out of town. (Again, I don’t want to make it appear like I am adverse to attending hearings. My concern is that I should be given a chance to appear in person, especially when a judge takes it upon himself to set a hearing on his own, without clearing the date on my calendar.)
In support of his refusal to grant telephone appearances, the Judge notes “the telephone system will not accommodate the volume of cases scheduled.” Respectfully, this explanation is woefully inadequate in my book. Fla.R.Jud.Admin. 2.530 requires that phone appearances be permitted for hearings of 15 minutes or less absent “good cause.” Here, it seems the Judge believes “the volume of cases scheduled” constitutes good cause. However, that’s a grossly unfair assertion when the Judge is the one who scheduled this (unspecified) volume of cases, all at once. Clearly, the Judge should not be permitted to schedule numerous cases at once, sua sponte, via a form Notice of Hearing, and then refuse telephone appearances because he scheduled so many hearings. Moreover, the fact that the Judge scheduled so many hearings, all at once, shows that he does not intend to evaluate Defendants’ position on the merits but wants to deny numerous motions to dismiss, at all once, as if he is sitting in front of a conveyor belt at a factory. Respectfully, my clients deserve better.
Again, I don’t want anyone to think that I enjoy filing Motions to Disqualify the judges in my foreclosure cases. However, when I encounter actions that I perceive to be grossly unfair, reflecting some predisposition against my clients or foreclosure defense cases in general (and, of course, legally sufficient to require disqualification), I won’t hesitate to take all appropriate action. As we saw with Judge Blanc’s announcement to the press earlier today, if you respectfully advise these judges that their procedures are flawed, you never know when they may realize you’re right, change their conduct, and institute procedures that comport with basic notions of due process and fair play.
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Posted on October 18th, 2010 by Mark Stopa
I’ve been talking about the banks’ obligation to attach documents to the affidavits upon which they rely for summary judgments in foreclosure cases for many months. My blog entry titled “Willful Blindness by Judges,” below, explains this issue in detail. To recap, Fla.R.Civ.P. 1.510(e) plainly requires “Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith,” yet Florida judges have been systematically ignoring this principle of law in foreclosure cases.
Today, it seems that these cries for change may be making an impact where it matters most – the judiciary. Kimberly Miller of the Palm Beach Post reports that Chief Judge Blanc, who oversees Palm Beach County, agrees with the need to enforce this principle of law in foreclosure cases:
“In the past, the judges weren’t requiring the attachments, now we’ve got something in the record saying there may be a problem, so now they should attach the documents. Dealing with the volume we are dealing with, we want to make sure all of our i’s are dotted and t’s crossed.”
Is it a coincidence that this report came out just days after my blog about it? Maybe. Either way, it’s nice to see that Chief Judge Blanc now recognizes this well-established principle of law. That said, I must ask – what about the tens of thousands of foreclosure cases that were “pushed through” in Palm Beach County and other counties throughout Florida with total disregard for the bank’s obligation to attach documents to their summary judgment affidavit? And what about the other counties in Florida – are all judges going to follow this principle of law from this point forward?
At this point, it’s clear that judges can’t fix this error in cases where a Final Judgment of Foreclosure has already been entered. Basically, even though judges have committed legal error in tens of thousands (if not hundreds of thousands) of foreclosure cases throughout Florida, those rulings stand, absent a timely appeal.
I am hopeful, though, that all judges throughout Florida will now recognize this principle of law and force banks to comply with it in all foreclosure cases – even uncontested cases. Respectfully, the law is the law, and it shouldn’t have taken a national foreclosure epidemic for judges to announce, via the press, that they’d start enforcing the law in all foreclosure cases.
Finally, it’s worth noting that foreclosure defense attorneys such as myself have been arguing this issue in Florida courtrooms for many months. Now that these judges are openly agreeing with the argument, perhaps they’ll learn a valuable lesson. Judges, next time a foreclosure defense attorney is arguing something at a hearing during a “rocket docket,” give him/her a chance to be heard. Respectfully, we’ve been all over this issue with attaching documents to affidavits for many months, and it’s a shame that only now are judges starting to catch on.
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