Judges Cannot Prosecute Foreclosure Cases; My Solution
Several days ago, I blogged about the flawed procedures being utilized in foreclosure cases in Brevard County, precipitating this Motion to Disqualify Judge. Since filing that motion, I’ve continued to reflect on the issues addressed therein, and I remain comfortable with my position. In my eyes, the issue boils down to one inescapable conclusion:
Judges cannot prosecute foreclosure cases!
Today, the Brevard judge agreed with my argument and issued this Order Granting Motion to Disqualify. The Order is quite vanilla, but it contains a phrase that I find telling. The judge notes that “from Defendant’s perspective,” the Motion to Disqualify is legally sufficient and requires disqualification. The key phrase, of course, is ”the Defendant’s perspective.”
From the Defendant’s perspective, when a judge takes it upon him or herself to set a hearing in a case that the Plaintiff has chosen, for whatever reason, to let stagnate, the judge is siding with the Plaintiff. A judge may argue (and may truly believe), that all he/she is doing is advancing the case forward, without bias towards one party or the other with regard to the hearing being scheduled. Particularly in foreclosure cases, though, it’s the mere advancement of the case, at the judge’s initiative, that reflects the bias. After all, the Plaintiff is seeking relief in the case; the Defendant is not. Hence, when the judge is advancing the case, sua sponte, the judge is necessarily helping one party to the detriment of the other.
Let’s put it this way … If a case is languishing, whose job is it to advance the case forward, towards judgment? The Plaintiff. Undoubtedly, the Defendant has no obligation in this regard. I’m not saying the Defendant can stall; I’m saying the Defendant has no obligation to accelerate the case if the Plaintiff lets it stagnate.
Some people reading this may argue I’m a slimy foreclosure defense attorney who’s just trying to delay foreclosure lawsuits. Not so. My concern is ensuring the system is fair for my clients. Lest you doubt that a judge setting a hearing on his/her own initiative is unfair, consider this:
I’ve represented Plaintiffs and Defendants in hundreds if not thousands of lawsuits throughout my career – all types of lawsuits, not just foreclosure cases. Other than recently (in the context of foreclosure cases), I can’t ever recall a judge setting a hearing on his/her own. It’s just not done. For example, I’ve filed dozens of lawsuits for Plaintiffs against insurance companies, seeking monetary relief. I think most of my litigation clients would tell you that I litigate those cases aggressively, but, on occasion, for one reason or another, some of those lawsuits have languished a bit. When that happens, do you think there’s ever been a time when a judge took it upon him or herself to set a hearing? Of course not. Do you think the judge ever tells the insurance company or its lawyer that they need to accelerate the case? Yeah, right. Never happens. As the Plaintiff’s lawyer, if I don’t set a hearing, the hearing never gets set, and the case stagnates. That’s just how it works. The insurance company has no obligation to advance the case forward (and risk entry of an adverse judgment sooner), nor would I expect them to. My client wants affirmative relief through the court system; it’s my duty to move the case forward to obtain that relief.
My point, essentially, is this – when this is how it works in litigation files, why should foreclosure cases be any different? Because the homeowner (allegedly) has not paid? Because the judge perceives the Plaintiff will win? Because the Judge has a lot of cases on his/her docket and wants to remove the backlog? Respectfully, that’s the rub. If a judge is setting a hearing on his/her own initiative, for any of those reasons, it reflects a bias that should not be present among the judiciary. Judges should treat my clients just like they treat insurance companies when I represent Plaintiffs – without any preconceived notions of who is going to win the case and without any agenda as to how quickly the case moves forward.
I can totally understand the judges’ desire to eliminate the high volume of cases with which they are dealing. The answer, though, isn’t for judges to exceed their role as neutral arbiter and act as prosecutor. The solution is to change to the rule on lack of prosecution.
Fla.R.Civ.P. 1.420(e) is currently set up in such a way that it’s virtually impossible, as a practical matter, for a case to be dismissed for lack of prosecution. For such a dismissal to be entered, (1) there can be no activity in the court file at all for 10 consecutive months; (2) the Plaintiff must be notified of the lack of record activity; (3) there must be no record activity in the ensuing 60 days; (4) an interested party must seek dismissal; and (5) there can be no “good cause” to prevent dismissal. Under this standard, cases can languish forever. I can file a Notice that I’m going on vacation for Christmas, and the 10-month clock starts all over again. Respectfully,that’s crazy, particularly vis a vis foreclosure cases.
If the judiciary wants cases to move quicker, it’s time for the Florida Supreme Court to implement an amendment to this rule. How about something like … if six months have passed with no record activity in a foreclosure case, then, boom – automatic dismissal. If that sounds too harsh, then give the Plaintiff a chance to prove good cause after six months. The point isn’t how the rule is amended; the point is that some amendment is necessary to ensure that foreclosure cases progress at the pace the judiciary desires. In other words, what I’m suggesting is this:
Judges, don’t prosecute foreclosure cases just because the bank has let those cases languish. Instead, convince the Florida Supreme Court to amend Rule 1.420 so it’s not so impossible to dismiss a foreclosure lawsuit for lack of prosecution.
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