Posted on October 27th, 2010 by Mark Stopa
As if we needed more proof that the banks’ foreclosure procedures are fundamentally flawed, Wells Fargo just announced it is re-doing affidavits in 55,000 foreclosure cases, as the original affidavits, executed by robo-signers, were flawed. Lest you think 55,000 improper foreclosure filings is not a big deal, bear in mind – that’s just what Wells Fargo is admitting, based on its own, internal investigation. If Wells Fargo is admitting to 55,000, you can bet the problem is far more widespread.
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Posted on October 27th, 2010 by Mark Stopa
One of my goals, both as a foreclosure defense attorney and the author of this blog, is to make everyone – the public, homeowners, and judges – aware of the many pitfalls with the way foreclosure cases are handled by our courts. I realize not everyone agrees with my positions on all of these issues, and that’s okay. I also realize I’m not well-liked in some circles for being so vocal in my views, and that’s okay, too. My job isn’t to be well-liked – it’s to represent homeowners as well as I possibly can (consistent with the law and my ethical obligations). Besides, meaningful change in how foreclosure lawsuits are handled is nothing but a pipe dream unless someone such as myself is willing to stand up and say “this is wrong.” Not everyone will agree 100% of the time, but I stand no chance if I don’t try.
For example, a few weeks ago, I started receiving Orders from Honorable Douglas Baird in Clearwater which systematically denied my clients’ Motions to Dismiss, without a hearing. I found this troubling, particularly since Judge Baird had not even placed me on notice that he might be ruling on such motions without a hearing. Given my overwhelming belief that this disregarded the most basic notions of due process, I felt compelled to file a Motion to Disqualify the judge.
As I’ve said before in this blog, I don’t want this to appear as if I disrespect Judge Baird. I respect him plenty. The issue is that I strongly disagree with him on these issues and, candidly, felt compelled to tell him so. As I see it, if I can’t express respectful disagreement (especially on issues for which there is no clear “right” answer), what’s the point of being a lawyer?
Anyway, Judge Baird granted the Motions to Disqualify, and in so doing, wrote me a letter. The letter said, in essence, ”I figured foreclosure defense attorneys such as yourself realized that it was my procedure to deny motions to dismiss without a hearing, but since you didn’t realize that, I’m granting the Motions to Disqualify.”
Judge Baird and I are never going to agree on some of these issues. What I respect, though, is that even though he disagrees with me, Judge Baird realized how his procedure could be construed to others as unfair, particularly when I didn’t know about it beforehand. In fact, since that happened, I have yet to receive an Order denying a Motion to Dismiss without a hearing from Judge Baird. Is that a coincidence? Maybe. That said, I just received an Order (in a different case) from Judge Baird directing me to file a written memorandum to the bank’s response to my Motion to Dismiss within five days, after which he may rule on the Motion to Dismiss without a hearing.
Respectfully, I still find this new procedure patently unfair, and I said as much in another Motion to Disqualify. As I see it, the judge should not be taking it upon himself to prosecute a lawsuit that the Plaintiff has chosen, for whatever reason, to let stagnate. In other words, it’s not a judge’s role to say “I see the Plaintiff has stopped prosecuting this case. It’s time for me to help advance the case towards judgment.” My concern about this conduct is heightened by the fact that the Plaintiff is seeking relief in the case and the Defendant is not. Where only one party is seeking relief, the judge’s attempts to advance a dormant case towards judgment, sua sponte, reveal bias.
Also, I find it unfair to be given five days “from the date of the Order to file a written response.” By the time I received the Order, that gave me three business days to respond. Respectfully, that’s unreasonable. There is no emergency here; this case has been languishing for months. For the judge to suddenly, out of the blue, require me to file a written response within three business days, failing which my client’s argument may be denied without a hearing … I find that inappropriate. What if I were on vacation? What if I were in trial? What if I were busy with other files? I have handled all types of lawsuits, from inception through trial and appeal, and I can’t ever recall being given such a short deadline. Respectfully, why should I have to drop everything to file a written memo (in three days)? Simply because the judge decided, on his own, to start prosecuting this case towards judgment?
All of that said, I can’t help but feel a bit encouraged. After all, even though I suspect he still disagrees with me, it appears that Judge Baird has changed his procedure, if only a little. Instead of denying a Motion to Dismiss outright, without a hearing (and without any warning that a ruling may be coming), he’s at least giving me a chance to file a written memorandum before he rules. I still think this is insufficient, but at least it shows that the judges are receptive to opposing viewpoints. It’s a baby step, yes, but Rome wasn’t built in a day.
Candidly, I’m don’t know how Judge Baird is going to react to this most recent Motion to Disqualify. I’m sure no judge likes receiving such a motion, and I suspect he still disagrees with my belief that his procedures are flawed. That said, I remain hopeful that he will continue to re-evaluate his stance on these issues. After all, I’ll argue all day long, as I have several times now, that it’s not a judge’s role to set a foreclosure case for hearing when the plaintiff has decided, for whatever reason, not to push the case towards judgment.
Part of my willingness to express these views in an open forum, other than my stern conviction that I’m right, is that judges are all over the map on issues such as these. To illustrate, consider the procedures of Judge Anthony Rondolino. Like Judge Baird, Judge Rondolino is a Pinellas County judge. The rules are the same for both judges, the law is the same, and the cases are generally the same. Nonetheless, Judge Rondolino often grants Motions to Dismiss, most recently via this seven-page Order (entered after a 45-minute hearing), yet Judge Baird routinely denies Motions to Dismiss, often without a hearing. When one Pinellas County judge is regularly granting well-taken Motions to Dismiss, after duly-noticed hearings, and another is regularly denying them without a hearing, there is clearly room for reasonable people – even reasonable judges – to disagree. As such, it’s up to us, as foreclosure defense attorneys, to assert our views as respectfully but persuasively as possible. Be respectful, but don’t back down, and don’t give up. Judges are paying attention, and your efforts may make a difference.
As for homeowners out there, I strongly encourage you to evaluate which foreclosure defense lawyers are willing to fight, respectfully but forcefully, and which are just “going through the motions” of a foreclosure case.
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Posted on October 27th, 2010 by Mark Stopa
In this article, a reporter estimates the cost of a loan modification under HAMP to be $54,757. If you follow his math, which seems well-reasoned enough to me, that’s actually a conservative number. Anyway, think about that for a minute:
Our government is paying $55,000 for every loan modification under HAMP.
There must be a better way.
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Posted on October 27th, 2010 by Mark Stopa
I’m seeing an increasing number of reports that banks are cancelling foreclosure sales, and, candidly, I’m as perturbed about it as the judges, but for different reasons.
Judges are upset because they want to keep “pushing through” foreclosure cases so as to reduce their caseloads. I’m perturbed because these cancellations show that the entire foreclosure process is senseless.
When a foreclosure case gets to the stage that the bank is cancelling a foreclosure sale, that means the bank has convinced a judge to grant a Final Judgment of Foreclosure, and caused the homeowner to vacate possession (presumably), but won’t take title to the property. I suppose I could sort of understand, maybe, a little bit, sort of, if the property was going on the market. But if it’s just going to sit, abandoned, then what’s the point?
Judges, why rush to enter judgments, and foreclose on Florida homeowners, when banks are leaving the houses vacant (and aren’t even taking title)?
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