Posts Tagged ‘Florida foreclosure lawyer’
Posted on November 23rd, 2010 by Mark Stopa
I’ve spokenly openly and candidly on this blog on many occasions about the need to change the perverse judicial procedures that permeate some of our courtrooms in Florida. Nothing has gotten my gander up more in this regard than the perverse judicial procedures employed in Lee County, Florida (the Twentieth Judicial Circuit, based in Fort Myers). I realize “perverse” is a strong word, but that’s the only word that comes to mind for what’s happening in Ft. Myers.
Here are the facts. In foreclosure lawsuits in Ft. Myers, judges (typically Judge Carlin) routinely enter an Order setting a docket sounding, right after the case is filed. These Orders are entered sua sponte (meaning on the court’s own initiative, without having been requested by either party), and they specifically provide that summary judgment will be entered at that hearing, failing which the case “will” be set for trial. These Orders also impose a discovery cut-off, usually the day of that hearing, meaning the parties cannot take discovery thereafter. Essentially, the judges have taken it upon themselves to litigate an entire foreclosure lawsuit in the span of a few months.
Here’s the first problem. A case cannot be set for trial until it is “at issue,” under Fla.R.Civ.P. 1.440. This means that if a motion to dismiss is outstanding, and the homeowner has not filed an Answer, the case cannot be set for trial. 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). (En Banc means that every judge on the First District joined in the decision – a rarity in appellate cases.) In Ft. Myers, the judges routinely find the case is “at issue” and ready to be set for trial, even when the Motion to Dismiss has yet to be heard – a very basic legal error.
In my eyes, this is more than just a technical problem. When a judge is sua sponte saying a case will be set for trial, even though the Motion to Dismiss has yet to be heard, he’s making it clear that he’s already decided he’s going to deny the Motion to Dismiss. Think about it this way. If a Motion to Dismiss is granted, then, unless leave to amend is granted, there is no trial at all! By setting a trial before the motion to dismiss is heard, the Ft. Myers judges are foreclosing the possibility that the Motion to Dismiss would be granted – without having heard the Motion to Dismiss on the merits! Under basic law, judges cannot pre-judge a case in this manner.
I’m also deeply troubled at how these Orders impose a two-month period to conduct discovery. Respectfully, that’s grossly inadequate – so much so that it’s insulting. Respectfully, I find that offensive. You see, discovery often takes many months. You have initial discovery, then follow-up discovery, sometimes with hearings to compel the other side to produce discovery. At minimum, parties would need six months to take discovery in a typical civil case – and that would be a bare minimum, if we were rushing through it. Also, a defendant should not be forced to complete discovery prior to a determination whether the Complaint states a cause of action. After all, if an Amended Complaint is required, the defendant is being forced to complete discovery prior to the date an Amended Complaint is even served. How can a defendant litigate a case without getting discovery on the operative complaint? You can’t, and that’s precisely the point – the judges have predetermined that they won’t require an Amended Complaint even without having heard the Motion to Dismiss. The entire approach is patently ridiculous, but that’s what the judges in Lee County are doing.
It’s also unfair that these judges are routinely setting these hearings without clearing the date yet refusing phone appearances. I’ve discussed that issue before vis a vis Orange County, so let’s summarize like this – it’s clear to me that the judges are trying to make it harder for foreclosure defense attorneys to represent homeowners and defend foreclosure cases. Personally, I won’t stand for that. Foreclosure is a huge issue in a homeowner’s life. Homeowners are entitled to counsel. Widespread conduct that violates the law and is aimed at making it harder to represent homeowners is intolerable in my book.
Recently, I was so irritated by this procedure (and the unfairness that results from it) that I filed a Motion to Disqualify Judge Carlin. He denied it, so I am filing this Petition for Writ of Prohibition in the Second District.
I’m very confident this Petition will be granted. In fact, this won’t be the first time I’ve convinced the Second District to grant a Writ of Prohibition when Judge Carlin inappropriately denied a well-taken Motion to Disqualify him. My hope, though, is much bigger than this one case. I’m concerned about the “big picture” in Lee County. To illustrate, I urge you to check out the portion of the Petition for Writ of Prohibition (near the end) that I labeled “Analysis: The Big Picture.” My point, simply, is this:
The procedures being utilized in foreclosure cases in Lee County are perverse, unlawful, and reflect the courts’ obvious bias against homeowners. It’s time the Lee County change their procedures, even if it means the Second District tells them to do so.
By posting this blog in this manner, I realize I’m opening myself up to criticism. That’s not ideal, but at this point I see little alternative. Also, please realize this – I wouldn’t be writing in this tone unless I was 100% confident I am that the procedures being utilized in Lee County are wrong. The law is clear – judges can’t set trial and a two-month discovery cutoff when motions to dismiss are outstanding. It’s time someone stood up and told them to stop. Also, I’m hopeful that other litigants and attorneys reading this will agree with me and push these same arguments. It’s past time that the judges in Ft. Myers started treating homeowners fairly, even in foreclosure cases.
Mark Stopa
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Posted on November 17th, 2010 by Mark Stopa
I don’t know that the fact pattern in this case is going to happen very frequently, but I’m sure there are more cases out there where brokers have made misrepresentations in connection with a loan, as in this appeal. In any event, it’s certainly good to see the Second District continuing to reverse summary judgments of foreclosure!
Mark Stopa
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Posted on November 4th, 2010 by Mark Stopa
Below is a horribly sad, tragic story. Putting aside the emotional aspects of it (to the extent that’s possible), two questions jump out at me. Please think about these questions after you read the story:
1. Without foreclosures, would the home have been abandoned and the pool left in the shape that it was? Before you answer, ask yourself this – do people living in homes leave their homes looking like that? Or do homes wind up in that condition because banks foreclose and the homes wind up vacant?
2. What does it say about the foreclosure system that the parents of this deceased child have to join 20 defendants because it’s so unclear who owns the home?
When a toddler wandered into a foreclosed home and drowned in the pool, a host of legal complexities surfaced.
Woulby Dieudonne holds a photo of his son Dieudonne who drowned in this pool that was boarded up two years ago in Miramar. October 20, 2010. Only the attorney and the father were there.
BY TONY PUGH
In a nation with millions of foreclosed homes, the one next door proved the most dangerous for 2-year-old Isaac Dieudonne.
On Oct. 11, 2009, Margarrette and Woulby Dieudonne were moving into their new home in the 6700 block of Southwest 26th Street in Miramar when their son Isaac strolled unnoticed out the family’s open front door. Minutes later, the toddler was found floating facedown in the algae-ridden backyard pool of a neighboring foreclosed home.
A neighbor administered CPR as the foul water spewed from Isaac’s mouth. Thirteen minutes after arriving at the hospital, he was pronounced dead.
The Dieudonnes’ tragedy led to a wrongful death lawsuit that shows how complications from the nation’s housing downturn can slow the wheels of justice.
The Dieudonnes never moved into their new home after the accident and Margarrette hasn’t been back since that fateful evening. Between bouts of depression, insomnia and emotional emptiness, she has found it difficult to visit her son’s grave, even on the anniversary of his death. But with a heavy heart and four helium-filled balloons in hand, she made the solemn cemetery trek last month out of respect for Isaac.
“I feel an obligation for me to at least show up on his birthday and on his birthday in heaven because I feel like he’s watching over me and he may feel like I abandoned him. But I haven’t,” she said, fighting back tears. “So I went there to place two balloons [at his grave]. And I released two to the sky to let him know I love him and, even though he’s in heaven, I truly do miss him.”
SAFTEY HAZARDS
Untold thousands of foreclosed homes across the United States pose an added public safety hazard because of their green, murky backyard pools, which can breed mosquitoes, nourish problem animals and rodents, or, in the case of Isaac Dieudonne, attract young children.
The Dieudonnes’ lawsuit hinges on a simple, but painful, question: Who is most liable for the boy’s accident? Was it the parents who were watching him or the property owners, servicing companies and maintenance firms that were responsible for making sure the vacant house met public safety requirements?
Like millions of foreclosed properties across the country, the home where Isaac drowned has been awash in legal action over the years, making it difficult to determine who owned the property at the time of the accident.
It took months for the family’s attorney, Janet Spence of Pembroke Pines, to sort through the property’s muddied chain of title possessions and transfers. At one point, Spence said, the home had two separate foreclosure actions pending simultaneously.
Spence also has faced some of the same paperwork irregularities that have put the nation’s foreclosure cases on indeterminate hold. Several documents transferring the mortgage appear to be flawed or possibly fraudulent, with conflicting dates. Two documents show that the mortgage was transferred from one mortgage company to an affiliated company in November 2007 and again in February 2008.
One of the questionable documents was generated by the Florida Default Law Group in Tampa, one of four law firms that are under state investigation for allegedly “fabricating and/or presenting false and misleading documents in foreclosure cases,” according to the Florida Attorney General’s Office
COMPLEX TRAIL
Because of the confusing paper trail, Spence has named 20 defendants in the case. They include banks that once owned the mortgage, companies that serviced the loan, property maintenance companies and even a company that was holding the mortgage for the banks.
Some defendants, such as American Home Mortgage Servicing, and the property management firm, Field Asset Services, are claiming parental negligence in the case. Others, including JPMorgan Chase, say they had no ownership stake in the property when the accident occurred.
“What you’ve described is a really tragic example of what happens when properties are abandoned and no one individual or institution will accept responsibility for the property,” said Dan Kildee, president of the Center for Community Progress, which pushes for redeveloping vacant and abandoned properties. “It’s particularly troubling when mortgage-foreclosed properties are managed by a servicer who claims they don’t own the property and therefore they don’t have any obligation to protect the public.”
On a recent visit to the Florida home where Isaac died, Spence and Woulby Dieudonne said the side gate where Isaac probably entered the property was still open. The screen door to the enclosed pool area was locked, but Spence said holes and tears in the enclosure still allowed easy entrance to the pool, which remains full of dirty water, but is now covered by wood scaffolding.
The Miramar city code requires that gates on pool safety barriers have spring locks that self-close after opening. The requirement applies to the screened pool enclosure and the fence around the backyard, Spence said. Safety barrier gates also must be locked when the pool isn’t being used. Spence said that neither the pool enclosure nor the backyard fence met either requirement at the time that Isaac drowned.
The Dieudonne case was filed originally in state court, but was moved to U.S. District Court after a defendant claimed that the case lacked a valid Florida-based defendant. That claim was later proved false and ultimately was withdrawn. Because of that, Spence is asking that the case go back to state court and that the federal judge impose punitive sanctions against the defendants for allegedly providing false information about the disputed Florida defendant. A hearing on those issues is set for this month.
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Posted on November 2nd, 2010 by Mark Stopa
As CNN adeptly reports, President Obama has done a complete 180 in his stance on foreclosures, now taking the position that foreclosures are “necessary” for the economy to recover. As I read the article, below, two questions jump out at me:
1) How does throwing homeowners on the streets “help” the economy?
2) Who is going to buy all of these foreclosed properties?
I don’t have an answer to #1. (Please spare me the lip service about how it’s ”necessary” to get these properties on the market - we all know most houses that become bank-owned remain vacant for months or years, and clearly that benefits nobody). The answer to #2 is clear. The only people who can afford to buy foreclosed properties are people who are already rich; the rest of the foreclosed properties will go back to the banks. Hence, Obama is standing by, watching, as the country re-distributes wealth on a massive, widespread basis from middle class homeowners to big banks and wealthy investors. Anyone else find this ironic, coming from a Democratic President?
What’s unfortunate is that Obama’s original thoughts on this issue were right - the country needs to find a way to create meaningful loan modifications to keep homeowners in their homes.
NEW YORK (CNNMoney) — The Obama administration is singing a different tune about foreclosures.
A year ago, officials focused on stemming the foreclosure tide. Now they are touting the need for foreclosures to rebuild the housing market.
Last week Phyllis Caldwell, head of the Treasury Department’s Homeownership Preservation Office, told a congressional panel that “an important part of ensuring longer-term stability in the market is to enable properties to be resold to families who can afford to purchase them.”
And White House Press Secretary Robert Gibbs last month told reporters that without sales of homes in distressed areas the “recovery in the housing market stops. It’s frozen.”
“That obviously can have — we believe and others believe — a very negative and detrimental impact to our economic recovery efforts and the housing markets in states that have been hardest hit,” Gibbs said.
But when Obama unveiled his signature foreclosure prevention program in February 2009, he said loan modifications were a key way to prevent the housing crisis from deepening. His initiative called for reducing distressed borrowers’ monthly payments to 31% of their pre-tax income.
“We’re not just helping homeowners at risk of falling over the edge; we’re preventing their neighbors from being pulled over that edge too — as defaults and foreclosures contribute to sinking home values, and failing local businesses, and lost jobs,” the president said.
The shift in rhetoric signals the Obama administration is recognizing that its loan modification program is foundering, experts said. Also, it is acknowledging that banks must address their swelling ranks of delinquent loans.
To be sure, the administration is still concerned with helping homeowners avoid foreclosure. Officials have rolled out a series of initiatives in 2010 aimed at assisting the unemployed and the underwater who owe more than their houses are worth.
And, they have called for reviews into the institutions’ foreclosure policies and procedures, stressing that servicers must comply with the law.
But they also now acknowledge more vocally that foreclosures must continue for a normal housing market to return. And that, in part, is why the administration is not supporting a nationwide foreclosure freeze despite the paperwork scandal that is roiling the mortgage industry.
The administration says there has been no change in either policy or rhetoric surrounding foreclosures and the housing market. The loan modification program was never meant to save every homeowner and officials always acknowledged the role of foreclosures in the market’s recovery, according to a Treasury spokeswoman.
“We have always thought some foreclosures needed to happen for there to be a full housing recovery,” said the spokeswoman, Andrea Risotto.
But, experts say, the new tone eminating from the White House also recognizes that the modification program is not living up to its initial goals of helping up to 4 million people avoid foreclosure. Some 496,000 distressed borrowers have received long-term modifications through September.
“What they have now realized is there are a lot of borrowers who can’t be saved and have to be moved through the foreclosure process,” said Laurie Goodman, senior managing director with Amherst Securities.
And they must break this news to Americans.
Officials are “trying to soften everybody up” to the fact that foreclosures are necessary, said Guy Cecela, publisher of Inside Mortgage Finance, an industry newsletter.
The new talking points, however, won’t likely result in a change in policy, said Anthony Sanders, a real estate finance professor at George Mason University. Administration officials will continue to support foreclosure alternatives because they are more palatable.
“As long as politics are involved, they’ll keep doing it,” said Sanders
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Posted on October 21st, 2010 by Mark Stopa
This article from the Washington Post is worth the read.
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Posted on October 21st, 2010 by Mark Stopa
Indiana’s Attorney General has filed suit against ten companies who took advantage of homeowners in financial distress, i.e. foreclosure rescue scams. Given the nature of my practice, I’ve encountered many homeowners with horror stories about foreclosure rescue scams. ”They promised me a loan modification, took $2,500, and I never heard from them again.”
Unfortunately, there is sometimes no way to know for sure if the company with whom you are dealing is a “scam” until after the fact. That said, here are some warning signs that the company with whom you are dealing may not be on the “up and up”:
1. An out of state company. I have received inquiries from from homeowners facing foreclosure from all over the country. My response is always the same. “Unfortunately, I can only represent homeowners with properties in Florida.” Is that to say it’s impossible for an out-of-state company, or even an out-of-state lawyer, to help you? Not necessarily. That said, how is someone going to handle a foreclosure lawsuit from out of state?
2. A non-lawyer. If you’re sued for foreclosure, there are only two types of people who can defend the foreclosure lawsuit - (1) the defendant/homeowner; and (2) a lawyer. A non-lawyer cannot defend a foreclosure case; to do so would constitute the unlicensed practice of law.
3. A guarantee. The Rules Regulating The Florida Bar preclude lawyers from guaranteeing a result to a client (in any case, including foreclosure cases). Even if the Rules did not so require, I’d never give a client a guarantee. Unfortunately, there’s no way to know, for sure, what the bank is going to be willing to do in the future. Likewise, there’s no way to know, for sure, how a judge will rule. If you’re being given a guarantee, chances are pretty good that it’s a scam.
4. Up-front payments. This one is tough, because most lawyers charge up-front fees. So don’t view this as a determining factor in and of itself, but consider it in conjunction with the others. In other words, if an out of town, non-lawyer is guaranteeing you a loan modification and requiring you to pay up front, chances are excellent that it’s a scam.
5. The company instructs you not to communicate with your bank. It’s hard for me to envision a scenario where I’d tell a client who is seeking a loan modification or some other resolution in lieu of a foreclosure not to talk to the bank. If that’s what you’re being told, chances are good that your “foreclosure rescue” company doesn’t want you to talk to your bank to catch on to the fact that they aren’t doing anything.
6. The company is not filing papers in response to your foreclosure lawsuit. As I’ve blogged repeatedly, meaningful loan modifications are few and far between, especially prior to a foreclosure lawsuit being filed. If the “foreclosure rescue” company you’ve retained is not going to defend your foreclosure case, chances are they aren’t going to help you.
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Posted on October 3rd, 2010 by Mark Stopa
I’ve been stewing about the Florida Supreme Court’s response to Congressman Grayson for several days now. After all, it’s very clear to me, notwithstanding what the Court said to Congressman Grayson, that the Court has the authority to issue a “foreclosure moratorium” via an amendment to Fla.R.Civ.P. 1.510.
Today, I decided to do something about it. Instead of staying home and watching the NFL, I went into the office and drafted this Letter to Chief Justice Canady.
My hope is that the Court will realize, even if it disagrees with my request for a moratorium, that Floridians deserve an explanation as to the Court’s rationale. There’s too much at stake for too many people for the most powerful Court in the State to punt the issue without an explanation.
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Posted on September 6th, 2010 by Mark Stopa
Foreclosure defense attorneys, consumer advocates, and homeowners are up in arms over the content of this transcript from a recent mass-motion hearing before a Senior Judge in Palm Beach County. I encourage you to read the entire transcript, but, essentially, the Senior Judge engaged in various acts that I find, quite candidly, utterly reprehsensible, particularly since they’re taking place on such a widespread level, including:
1. Referring, in open court, to plaintiff’s attorneys (from Shapiro and Fishman), as “my lawyers.”
2. At the start of the mass-motion calendar, telling dozens of pro se homeowners he’s going to try to “help” them (at a summary judgment hearing of foreclosure, mind you), acting like he’s on their side (by pointing out the unemployment rate in Palm Beach and how homeowners have no options), then giving them legal advice (most notably, by telling them that deeds in lieu and short sales usually “don’t work,” suggesting that homeowners not do them).
3. Telling everyone in the courtroom that he’s “heard it all” (with respect to arguments like the bank lacks standing and the bank lost the modification paperwork), as if to generate an excuse not to allow homeowners to be heard in opposition to summary judgment.
4. Limiting all parties, even attorneys, to sixty seconds of argument in opposition to summary judgment, even going so far as to “count down” when the attorney has 20 seconds and 10 seconds left. (This countdown is not reflected in the transcript, but I have it on good word from lawyers who participated in a different hearing on that same mass-motion calendar.)
5. Not reading any motions, affidavits, objections, or case law from homeowners or their attorneys (which the judge necessarily couldn’t do given his self-imposed 60-second deadline).
6. Granting summary judgments of foreclosure without letting defendants and their attorneys be heard and without reading their written filings, even when the law requires that he not.
7. Telling everyone in the courtroom, before any hearings had begun, that if he denied summary judgment on their case, he would set it for trial within 30 days.
I recently engaged in a conversation with a fellow foreclosure defense attorney, wherein I wondered “What would I do in this situation?” The following is not intended as legal advice, as it’s not possible to give advice about any one particular person’s situation without knowing the ins and outs of the case. That said, I think it’s worth mentioning - here’s what I’d do in such a situation.
I would be very aggressive and, essentially, try to force the Senior Judge to listen to my arguments and provide ample time for those arguments, and if the Judge refused, move to disqualify him/her.
In my view, one of the reasons these “rocket dockets” have gotten so far out of control, stomping all over parties’ right to be heard, is that too few lawyers are willing to stand up to some of these judges and call them out on their improper conduct. (I say “some of these judges” because certainly not every judge needs to be “called out.”)
To illustrate, if I’m attending a hearing with 50 or 100 other summary judgment motions all being heard at the same , and I saw a judge do what this Senior Judge did, when it got to my hearing, I’d forcefully tell the Judge that I have numerous arguments in opposition to summary judgment, with case law, and my arguments cannot possibly be heard in sixty seconds. If the Judge refuses to give me more time, I will ask him/her to review my case law and written objections and affidavit in opposition to summary judgment. When he doesn’t (because he can’t possible do so in sixty seconds), I will ask the Judge: “Are you refusing to read my client’s affidavit in opposition to summary judgment, written objections and case law?” If he says that he’s read them but he hasn’t, I’d say “Let the record reflect that you have not read my client’s affidavit, written objections, or case law.” Unless the Judge changes course and agrees to read them all (hence giving me more than sixty seconds to present my argument), I would make an ore tenus motion to disqualify him from presiding as the judge in that case. I’d envision saying something like this:
“Judge, your refusal to give me more than 60 seconds of hearing time and refusal to read my written filings and case law in opposition to summary judgment causes my client to fear that you have prejudged this matter and are not neutral and detached. You’re not even giving me a chance to be heard. Additionally, you referred to opposing counsel as “your” attorneys, showing you’ve taken their side in this lawsuit, and you gave legal advice to all of the defendants in the courtroom, telling them you were trying to “help” them and suggesting that they not to do a deed in lieu. You also prejudged that this case would be set for trial if summary judgment was denied. My client hereby moves to disqualify you from presiding over this case.”
The judge will probably be taken aback initially. That’s when I’d say “Florida procedure dictates that I file such a motion in writing, which I obviously cannot do right now. As such, the law provides that I should ask for a continuance of this hearing in order to file the motion to disqualify in written form.”
Obviously, depending on what the Judge says, this may not play out exactly like I’ve typed it. The key, though, in my view, is to ensure I make the motion to disqualify before the judge rules on the summary judgment motion. If I were to wait until after the Judge grants summary judgment, the motion to disqualify would look like sour grapes, and there’s legions of cases that hold that a judge cannot be disqualified merely because he ruled against you. On the right fact pattern, though, such as the one set forth above, I strongly believe a motion to disqualify the judge would and should be granted. (To illustrate, the Motion to Disqualify that I discussed, below, was granted.) Of course, I can’t make the Judge grant the motion, even if the law requires that he do so. However, I could go to the appellate court, as I’ve done before when a judge improperly denied a motion to disqualify. See Case No. 09-1278 in Florida’s Second District Court of Appeal (granting petition for writ of mandamus, directing judge to disqualify himself).
Many lawyers refrain from going down this path out of fear of upsetting the judge. I’m not oblivious to that argument, particularly if it’s a judge you will appear before on a regular basis. However, if it’s clear to me that the judge isn’t giving homeowners a chance to be heard, and is granting summary judgments that shouldn’t be granted, then, the way I see it, I’m not losing anything even if the motion to disqualify upsets him because he wasn’t going to rule in my favor regardless. If more people were willing to “call out” judges on these facts, then maybe these judges would get out of their comfort zone and start to realize the extent of their improprieties.
What is the right fact pattern to seek a judge’s disqualification? There are legions of reasons why a judge should properly be disqualified from a case. Given what’s happening in Florida courtrooms today, particularly in foreclosure cases, it’s worth discussing a few:
1. Prejudging a case and/or refusing to let a party be heard. What is most irritating to me about the Senior Judge’s conduct, above, was the fact that he had obviously prejudged the case. He all but admitted it at the start of the hearing, telling everyone he’s “heard it all,” then limiting all defendants and their attorneys to sixty seconds of hearing time. If a judge refuses to allow a party to be heard, or has prejudged the outcome of the case, a timely motion to disqualify should be granted. See Marvin v. State, 804 So. 2d 360, 363 (Fla. 4th DCA 2001) (“A trial judge’s announced intention before a scheduled hearing to make a specific ruling, regardless of any evidence or argument to the contrary, is the paradigm of judicial bias and prejudice. We could not imagine a more telling basis for a party to fear that he will not receive a fair hearing.”); Barnett v. Barnett, 727 So. 2d 311 (Fla. 2d DCA 1999) (requiring judicial disqualification where the judge’s comments during trial created the impression that he had prejudged the case); Wargo v. Wargo, 669 So. 2d 1123 (Fla. 4th DCA 1996) (Writ of Prohibition issued where the judge began to rule without giving a party a chance to be heard).
The most obvious example of how the Senior Judge had prejudged the foreclosure cases before him was when he said that if he denied summary judgment that the case would be set for trial within 30 days. Though some may think that was a benign problem in light of everything else that transpired (and in a sense I’d agree), the setting of trial is not governed by the denial of a summary judgment motion - and it certainly isn’t automatic upon the denial of summary judgment. In fact, a judge is precluded from setting a case for trial unless it is “at issue,” as defined by Fla.R.Civ.P. 1.440. Here, the Senior Judge was openly telling everyone in the courtroom that he was going to set a case for trial (even if it was not “at issue”), if summary judgment was denied. That’s wrong. If, for example, a motion to dismiss had yet to be adjudicated, and the defendant had yet to file an Answer, such a case should certainly not be set for trial. As the Fourth District has noted, “strict compliance with Rule 1.440 is mandatory.” See Bennett v. Continental Chemicals, Inc., 492 So. 2d 724 (Fla. 4th DCA 1986) (en banc) (reversing a final judgment where trial was set prematurely); see also Precision Constructors, Inc. v. Valtec Construction Corp., 825 So. 2d 1062 (Fla. 3d DCA 2002) (“Failure to adhere strictly to the mandates of Rule 1.440 is reversible error. Accordingly, the judgment is vacated and the cause is remanded for a new trial.”).
The fact that the Judge had predetermined the propriety of a trial date, without regard to Rule 1.440 and without regard to the facts of each particular case, should have, upon timely motion, required his disqualification. The judge’s actions also illustrate a far larger problem - that some of these senior judges are willing to do anything to “push cases through,” even if it means disregarding the law. (It just so happens, in this instance, that most people don’t know the law about 1.440, so nobody was in a position to call him out on what he was doing, but that doesn’t make the misconduct right.) Personally, I don’t know this particular Senior Judge, but I have little doubt that he knows the requirements of Rule 1.440 - any judge who had been on the bench for any period of time would. Hence, it’s clear to me that this judge knows the requirements for setting a case for trial but was disregarding them to “push cases through.” Again, that’s wrong.
2. Ex parte communications. When a judge communicates with one party or his/her attorney about a pending case outside the presence of the other party and/or his attorney, that’s called an ex parte communication. Given how these foreclosure hearings are set up nowadays, I suspect this happens more often than anyone could imagine. It happened to me recently, and I discussed that situation in detail, below. Anyway, think about the setting - the judge has a lawyer from Shapiro & Fishman, Florida Default, or some other foreclosure mill in his/her chambers for an hour or two, hearing one case after another, but the defendant and/or counsel are present for just a small portion of that time. Is it crazy to think the Judge is talking to the plaintiff’s attorney about the case outside the presence of the homeowner and/or his attorney? Certainly not. That said, a motion to disqualify cannot be based on a suspicion of impropriety - the homeowner or counsel has to know that an ex parte communication took place. If it did, a timely motion to disqualify should be granted. See State v. Riechmann, 777 So. 2d 342 (Fla. 2000) (“Canon 3B(7) of the Code of Judicial Conduct provides that a judge shall not initiate, permit, or consider ex parte communications … We are not concerned with whether an ex parte communication actually prejudices one party at the expense of the other. The most insidious result of ex parte communications is their effect on the appearance of the impartiality of the tribunal. The impartiality of the trial judge must be beyond question.”); see also Smith v. State, 708 So. 2d 253 (Fla. 1998); Pearson v. Pearson, 870 So. 2d 248 (Fla. 2d DCA 2004) (“Petitioner’s allegation of an ex parte communication alone established a reasonable basis to fear she would not receive a fair hearing in subsequent proceedings.”).
3. Giving legal advice to parties or their counsel. Judges are supposed to be neutral and detached arbiters. They are absolutely precluded from giving legal advice to one side or the other. If they do, a legally sufficient motion to disqualify should be granted. That’s why, in my opinion, the Senior Judge’s conduct, above, in telling homeowners he was going to “help” them and suggesting that they not do a deed in lieu of foreclosure would have, upon timely motion, required his disqualifiaction. See Blackpool Associates, Ltd. v. SM-106, Ltd., 839 So. 2d 837, 838 (Fla. 4th DCA 2003) (“We grant relief in connection with the trial court’s order that denied disqualification as the trial court provided Blackpool/Kevin Murphy with legal advice and suggestions.”); Cammarata v. Jones, 763 So. 2d 552, 553 (Fla. 4th DCA 2000) (“we conclude the trial judge’s suggestions to the Respondent’s counsel caused the Petitioners to have a well-rounded fear that they would not have a fair trial); Shore Mariner Condo. Ass’n, Inc. v. Antonious, 722 So. 2d 247, 248 (Fla. 2d DCA 1998) (“[t]rial judges must studiously avoid the appearance of favoring one party in a lawsuit, and suggesting to counsel or a party how to proceed strategically constitutes a breach of this principle.”); Chastine v. Broome, 629 So. 2d 293 (Fla. 4th DCA 1993).
4. Filing a JQC Complaint. On a fact pattern such as that provided above, I feel like I’d have no choice but to report the judge to the Judicial Qualifications Committee (particularly if the judge denied the motion to disqualify and entered summary judgment). This is, essentially, a grievance against the judge. I realize this is an extreme measure, but, in my opinion, this judge’s conduct was just that bad. If lawyers and homeowners started filing JQC complaints upon egregious conduct such as this, perhaps judges would start to “get it” and change their conduct.
If I had a JQC Complaint filed against a judge, and had another hearing before that same judge, I’d move to disqualify that judge on the basis that the JQC Complaint was pending. Florida law does not “automatically require” that the motion to disqualify be granted merely because of the pending JQC Complaint. See In re Code of Judicial Conduct, 659 So. 2d 692 (Fla. 1995). However, if the JQC Complaint was predicated on the judge’s predetermination of the case and refusal to let me be heard, and the judge was about to begin another hearing with the same format, I firmly believe that Florida law would require his disqualification. After all, I’d be complaining about the very conduct that gave rise to the JQC Complaint, and I don’t see how any judge could be neutral and detached when that same issue is coming up over and over again.
This is not meant to be an exhaustive list, and as explained above, it’s not meant to be legal advice. That said, when discussing a motion to disqualify a judge, a few things bear mentioning: (1) motions to disqualify must be brought within 10 days of the party learning of the conduct that gave rise to the motion or the argument is waived and must be denied; (2) the motion must be signed by the party, under oath, and if there’s an attorney on the case, he/she must sign a certificate of good faith, and (3) the motion must be brought to the attention of the judge, ensuring that the judge knows about the motion and has a chance to rule. It sounds daunting that the judge for whom disqualification is sought gets to rule on the motion, but the good part is that the judge must accept all facts in the motion as true and can only rule on the legal sufficiency of the motion. That’s also why appellate courts review the motion de novo.
The issues set forth herein are complex. Essentially, it’s another example why it’s a good idea to retain an experienced foreclosure defense attorney to help with your case. Meanwhile, my point in writing this blog is to make people realize that when judges act like this Senior Judge acted, he shouldn’t be able to get away with it.
Such conduct needs to be “called out” by everyone to help ensure a fair judicial process for everyone involved.
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Posted on July 14th, 2010 by Mark Stopa
Never let it be said that foreclosure defense attorney Mark Stopa backs down from a challenge.
In my first post on this blog, below, I described in detail my argument in a Motion to Disqualify Counsel in a foreclosure case. Now, I’m attaching a Petition for Writ of Certiorari to the Second District after a Tampa judge denied a similar motion.
Denial of Motion to DQ - Cert Petition
My argument, essentially, is that my Motion to Disqualify Counsel presented a prima facie case of disqualification given counsel’s conflict of interest under 4-1.7 and the bank’s commission of a fraud under 4-1.16, and the judge was required to grant the motion in the absence of any record evidence to the contrary. Alternatively, at minimum, the judge was required to grant an evidentiary hearing in the face of the disputed factual issues. Of course, the Petition also contains numerous real-world arguments on why this is a big issue in the Florida court system and why the Second District should stop allowing the systemic fraud being perpetuated by banks in cases throughout our courts.
I welcome any feedback or dialogue about this issue. Any lawyers out there, have you had any experiences with these types of motions?
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