Archive for November 5th, 2010

Reflections on the Foreclosure Conference with Judges

I was one of a handful of attorneys who had the opportunity to participate in a conference with Chief Judge Thomas McGrady and several other judges in Florida’s Sixth Judicial Circuit (Pasco and Pinellas Counties) to discuss foreclosure-related issues.  The conference was a unique opportunity for everyone to share their concerns about the foreclosure process in an open forum.  Having reflected on the conference, here are my thoughts – both the good and the bad.  

First off, I applaud Judge McGrady and the other judges who were willing to attend the conference and discuss these issues, with bank attorneys and foreclosure defense attorneys, in an open forum.  I’m often critical of procedures being utilized in Florida courtrooms in foreclosure cases, so let’s give credit where credit is due.  These judges deserve kudos for their willingness to discuss these issues openly, with both sides, as part of their attempts to promote fairness and efficiency in the process.  I still disagree with some of the procedures, but the effort is there, at least in the Sixth Judicial Circuit.  Anyway, here’s what I took out of the conference:

1.  Judges Rule Based on Evidence in Each Case.  Many homeowners have wondered (as did the media, who was invited into the latter part of the conference) what judges are doing differently in the wake of numerous media stories about fraudulent affidavits, foreclosure fraud, robo-signers, and the like.  All of the judges made one thing clear – they rule based on the evidence before them in each particular case.  Media reports, news stories, and internet articles are not part of a court file and judges do not take them into account when ruling on a particular case.  In fact, the judges deem it part of their responsibility to ignore such factors when adjudicating a case.  Quite simply, judges’ rulings are based on the evidence before them in that particular file and not anything external. 

2.  If you’re a homeowner, and want to defend a foreclosure, you must present evidence!  Many people believe judges should be ruling in favor of homeowners in foreclosure cases in light of the many recent stories about foreclosure fraud.  The judges have made it clear, though, that they aren’t going to make rulings based on newspaper articles or internet stories.  To me, that means one thing:

If you want to fight your foreclosure, you must present evidence!

The judge on your case isn’t going to rule in your favor based on anything being said in the media.  If you think there’s fraud or other misconduct being committed by the bank in your foreclosure case, you have to prove it to the judge.  In my view, the best way to do that is to retain a competent foreclosure defense attorney to represent you, as asserting such defenses is what we do.  You may suspect there’s fraud, and the media may be reporting fraud, but you have to prove fraud in your case or it won’t matter. 

3.  Judges’ opinions on the law vary widely.  It was fascinating to see a panel of judges, all of whom are obviously intelligent jurists, have such different opinions on legal issues in foreclosure cases.  At various points in the conference, different judges were openly (but respectfully) disagreeing with one another.  To me, this is a huge indication that our appellate courts need to issue more written opinions in foreclosure cases (so as to clarify the law on these issues), but in the meantime, it shows that arguments that work in one courtroom may not work in another, and vice versa. 

For instance, on the issue of affidavits supporting summary judgment (a hot topic in the media in recent weeks), the judges seem to fall into one of three categories: (1) some judges believe documents must be attached to an affidavit to satisfy the mandates of Rule 1.510(e) (a topic I discussed at length in my blog titled “Willful Blindness by Judges”), even in cases where the homeowner is not defending the foreclosure suit, failing which summary judgment will be denied; (2) some judges believe the absence of such documents is not a reason to deny summary judgment when the homeowner is not defending the case, but if the homeowner opposes summary judgment and objects based on the absence of supporting documents, then summary judgment will be denied; and (3) some judges believe the absence of such documents is not an impediment to summary judgment, even in the face of an objection (or, unfortunately, don’t care).  I agree with the judges in the first category, and it’s hard for me to see an argument otherwise.  The fact that there are differences of opinion, though, and that reasonable judges can disagree, reflects the need for homeowners to retain a competent attorney to raise these arguments in foreclosure cases.  Where there are no black and white answers, persuasive argument from counsel can carry the day. 

One concern I raised was how Pinellas County grants summary judgments of foreclosure even when the plaintiff or its counsel does not attend the hearing (if the defendant does not attend, either).  When I voiced my disagreement with this approach to Chief Judge McGrady, who defended the procedure and clearly did not want to argue with me about it, the Pasco County judges indicated, essentially, that they agree with me.  In their courts, if a plaintiff’s counsel does not attend a summary judgment hearing, they presume the plaintiff doesn’t care (or the case settled) and the motion is denied. 

4.  Ex Parte Orders.  During the conference, I voiced my concern about how judges enter Orders from Plaintiff’s attorneys ex parte, i.e. without notice to defense counsel and without a hearing.  The general consensus from the judges is that this shouldn’t happen but, given the volume of paperwork they’re dealing with, it’s going to happen from time to time, so it’s up to defense attorneys to challenge such Orders after they’re entered.  Candidly, I’m disappointed there isn’t a procedure in place to prevent such Orders, but at least the judges realize the problem. 

I monopolized a fair amount of the discussion during the conference, but I’m aggravated with myself that I didn’t initiate one more discussion – about judges taking it upon themselves to prosecute a foreclosure case by sua sponte setting a hearing.  I’ll make that issue number 1 at the next such conference.  In the meantime, bear in mind: 

If you want to defend your foreclosure, you must present evidence! 

Judges will not consider media stories if there is no evidence of it in your case.

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