Posts Tagged ‘foreclosure defense attorney’
Posted on April 3rd, 2012 by Mark Stopa
It’s only Tuesday, but it’s been quite a week already. I’ve had four different foreclosure cases dismissed – four different cases, for four different reasons. In contrast, I had one judge sua sponte set a plaintiff’s motion for summary judgment for hearing (refusing to set defense motions that were also pending, including a dispositive defense motion). Then, when plaintiff’s counsel refused to proceed with summary judgment at the hearing, the judge denied summary judgment. Upon doing so, however, the judge immediately set a trial date while refusing to hear my argument that the case could not be set for trial, showing such bias and hostility that I felt compelled to file a motion to disqualify. This stark contrast made me wonder … which do you think is better? Dismissing cases (where the law allows)? Or being intent on cramming through foreclosure judgments?
Let’s start with the dismissals.
In one case, the Honorable David Demers of St. Petersburg granted a Motion to Dismiss for Lack of Prosecution, appropriately ruling he had “no discretion” to deny the motion where there was no record activity in the 10 months preceding the Notice of Intent to Dismiss or the 60 days thereafter and Plaintiff failed to show good cause in writing five days before the hearing. Plaintiff’s counsel argued the case should remain pending, but instead of trying to cram a square peg into a round hole, the judge recognized the law required dismissal and he followed the law, dismissing the case.
In another case, the Honorable Anthony Rondolino of St. Petersburg dismissed a case without leave to amend because the Plaintiff failed to amend its Complaint for more than 6 months after a prior order giving it 20 days to amend. Again, Plaintiff’s counsel argued the case should remain pending, but the judge followed the law and dismissed the case.
Interestingly, during that hearing, Judge Rondolino lamented how Florida’s governor and the banks complain about how the court system is too slow to prosecute foreclosures (using those delays as an excuse to ask for non-judicial foreclosures), as, in his view, it’s clear the banks are the ones who are dilatory. That six-month delay was a good illustration of his point.
In a third case, the Honorable Douglas Baird of Clearwater granted a motion to compel discovery, ruling Plaintiff had waived objections thereto where it failed to file them for many months. Rather than providing these discovery responses, Plaintiff chose to voluntarily dismiss its case.
In a fourth case, the Honorable James Barton of Tampa granted summary judgment for my client given the bank’s failure to comply with conditions precedent to suit.
Four cases, all dismissed, each for a different reason. That, of course, makes for a significant point – it is very possible to adjudicate the “backlog” of foreclosure cases in a manner other than merely cramming through foreclosure judgments. In other words, there are many ways a foreclosure case can be dismissed, if you’re fighting it.
By contrast, I am filing this Motion to DQ Judge because I’m so troubled at what happened in today’s hearing in a different case. This judge took it upon himself to issue an Order setting a hearing on the plaintiff’s motion for summary judgment (not setting a hearing on any of my client’s motions). After denying summary judgment (where plaintiff’s counsel was unprepared to proceed), the judge immediately set a trial, refusing to listen to my arguments or read my case law about why trial could not be set. In fact, when I asked to be heard, he pointed at the door, basically telling me I could leave if I didn’t agree.
In my opinion, it was clear this judge had pre-determined that he was going to grant summary judgment or set trial, regardless of the facts of a foreclosure case. Summary judgment or trial, that was it (on a case, mind you, that the judge took it upon himself to prosecute by setting a hearing). Respectfully, is that really appropriate?
You tell me – which approach do you think is better? Dismissing cases where the law authorizes, or judges taking it upon themselves to set a plaintiff’s motion for summary judgment for hearing, then either granting that motion or setting a trial (without regard to any arguments or case law about the propriety of a trial date)? I know which approach I think is proper/better.
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 October 23rd, 2010 by Mark Stopa
If you’ve ever wondered what “foreclosure fraud” is all about or how a homeowner could possibly have legitimate defenses to a foreclosure lawsuit, take a close look at the Order of Dismissal from Judge Rondolino.
The Plaintiff in this case is Deutsche Bank National Trust Company, as Trustee Under the Pooling and Servicing Agreement Dated as of May 1, 2001. However, the Note and Mortgage attached to the Complaint are in the name of Maxwell Mortgage, Inc. The Note contains no indorsement, and there is no allonge, no assignment of mortgage, and no other documentary evidence reflecting a transfer of the Note/Mortgage from Maxwell to Deutsche. Hence, on the face of the Complaint, Deutsche has no basis to obtain a foreclosure.
After Judge Rondolino dismissed the case the first time, Deutsche filed an assignment of mortgage. However, the assignment was not created until after the lawsuit was filed, and Florida law does not enable a plaintiff to acquire standing after filing suit. See Progress Exp. Ins. v. McGrath Community Chiro., 913 So. 2d 1281 (Fla. 2d DCA 2005). To circumvent this deficiency, Deutsche contends the Note was transferred to it before the suit was filed (even though the written assignment was done after) by some sort of “equitable assignment.” However, as Florida law requires the pleading of facts, alleging an “equitable assignment” is insufficient without specifying the time, place, and manner of transfer. In other words, where the written assignment post-dates the filing of the lawsuit, how could the “equitable transfer” have taken place beforehand?
If this sounds like a lot of legal jargon, it is. So here’s what’s really going on, both in this case and many others.
Banks don’t have their paperwork in order. Banks, in this case Deutsche, file foreclosure lawsuits on a regular basis without the requisite paperwork. When foreclosure cases go unchallenged, these deficiencies go unchallenged, so the banks generally get away with the deficient paperwork. When foreclosure lawsuits are contested, by attorneys such as myself, banks and their lawyers often try to fix the problem after the fact. That’s why I routinely see allegations like those in this case alleging an “equitable transfer,” without any factual basis, before the suit was filed even though the written assignment is dated after suit was filed. Again, how could an “equitable transfer” have taken place before the suit was filed when the written assignment is dated months after?
Whether these types of allegations are permitted is the issue in thousands of Motions to Dismiss (and, ultimately, motions for summary judgment) in foreclosure cases throughout Florida. Many judges, particularly senior judges, in their ongoing attempt to “push through” foreclosure cases, have denied Motions to Dismiss by homeowners, enabling Plaintiffs such as Deutsche to get away with conclusory allegations of “equitable transfer” without any factual basis.
As you can see, Judge Rondolino is not one of these judges. He believes Plaintiffs, even in foreclosure cases, should have to plead some facts in support of an alleged “equitable transfer” of the Note/Mortgage, particularly when the filing of suit precedes the date of the written assignment. Obviously, I agree … but there’s more to it than that.
The issue isn’t just whether Plaintiffs such as Deutsche should have to plead facts in support of the alleged equitable transfer … the issue is whether such facts exist. Again, how could an “equitable transfer” have taken place before the suit was filed when the written assignment is dated months after?
Given his reference to “incacerative sanctions” (if Deutsche’s allegations are proven untrue), it seems Judge Rondolino shares the same belief that I do - in many of these cases, the requisite facts don’t exist. In other words, it seems there was no “equitable transfer” before the suit was filed, yet Deutsche alleges otherwise to try to “push through” the foreclosure.
This sounds complicated, but this is the issue in foreclosure cases throughout Florida. Is the Plaintiff entitled to foreclose? Can it establish standing as of the date it filed suit? Is the bank’s paperwork in order? Many times, the answer is “no,” and it’s good to see a judge call out the banks on these deficient filings.
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Posted on October 21st, 2010 by Mark Stopa
The foreclosure crisis has spawned a myriad of headline-grabbing, national stories. Foreclosure fraud. Robo-signers. Strategic default. Many brilliant Americans are trying to figure out how to solve the problem. Finding the solution begins with understanding the problem.
As a foreclosure defense attorney on the “front lines” of the crisis every day, I believe the problem is much simpler than people realize. Homeowners and bankers are in a Tug-of-War. On one side of the rope, homeowners are pulling, trying to get loan modifications. On the other side, bankers are pulling, trying to finalize foreclosures.
Homeowners vs. Bankers
(I have homeowners on the left because they’re clearly the underdogs, struggling with inferior resources. The bankers are on the right due to their vast resources, aided by the bailout from the government.)
Everything we’ve seen in the foreclosure crisis falls under the umbrella of this Tug-of-War. In my view, it started with the bail-out of the banks, so let’s start there.
1. In 2008, with our nation’s economy in the toilet, the government bailed out the banks, intending to spur lending and stimulate the economy. But the bankers don’t modify loans.
Government Bails Out Bankers ==> No Loan Modifications.
2. The lack of loan modifications spawned more defaults by homeowners and unprecedented increases in the volume of foreclosures.
No Modifications ==> More Defaults & More Foreclosures
3. Faced with higher volume, bankers instituted questionable procedures to cut corners. Robo-signers. Foreclosure fraud (or, at minimum, neglect).
No Modifications ==> More Foreclosures ==> Bankers Cut Corners
4. Without modifications, and facing foreclosure, homeowners fight back, hiring foreclosure defense attorneys (particularly in states like Florida, which require judicial oversight).
No Modifications ==> Homeowners fight back, Hire Lawyers
5 Foreclosure defense attorneys help homeowners, uncover fraud.
No Modifications ==> Homeowners Hire Lawyers ==> Bankers’ Fraud Exposed
6. As this whole process continues, the real estate market and economy as a whole continue to stagnate. The ongoing Tug-of-War is being played in quicksand - both sides are pulling, and everyone is sinking.
More and more Americans wonder why they should pay they should pay their mortgage when a house down the street is selling for 40% of the mortgage. It’s the advent of strategic default.
No Modifications ==> Strategic Default
7. Not wanting everyone to default, bankers still refuse modifications. (This is one of the big perversities of the system. Bankers will never admit it, but the single biggest reason they won’t modify loans is they don’t want to incentivize all of the homeowners who are current on their loans to go into default.)
No Modifications ==> Strategic Default ==> No Modifications
8. Meanwhile, in states with judicial oversight of foreclosures, like Florida, judges see their caseloads quadruple, essentially overnight, prompting unprecedented procedural changes, and, in many circles, skepticism in the judiciary (due to the increasing perception that courts have enabled the foreclosure fraud).
No Modifications ==> Higher Volume ==> Strain on Judiciary
Now we sit, in October, 2010, with terms like robo-signer, moratorium, and foreclosure-gate a part of daily conversation. The Tug-of-War is now more intense than ever. Public debate rages about which side is right - the bankers or the homeowners, each side growing larger in number and getting more entrenched in their respective positions. Meanwhile, high-ranking officials try to solve the problem, struggling to come up with a solution.
Respectfully, the solution is simple. AMERICANS NEED LOAN MODIFICATIONS. Let me shout it from the rooftops:
AMERICANS NEED LOAN MODIFICATIONS
I’ve blogged on this website repeatedly about the problems with the loan modification process. If the government has any intention of fixing the mess, and the economy as a whole, it must find a way to force banks to modify loans. A few suggestions:
1. Every time a bank forecloses, impose a tax. A stiff one. Make the tax pro rata based on the value of the property. “You want to foreclose, bank. Fine. Pay $25,000. Or $50,000.” If bankers won’t modify loans, incentivize them to do so by hitting ‘em where it hurts - the wallet.
2. Reduce the principal on every owner-occupied property to its present value. I made this suggestion on this blog weeks ago, before Foreclosure-Gate became a national phenomenon. Yes, it’s a drastic suggestion, but this would drastically reduce strategic defaults, eliminate the backlog in our courts, and make mortgages affordable again. The bankers got bailed out (and didn’t help homeowners at all) - it’s time to bail out the people. Bankers may argue this is unfair, but I’d counter that this would stabilize housing prices, spur home sales, and get homeowners to start borrowing again.
3. Require judicial oversight of foreclosures in every state. If it’s harder for banks to foreclose, it will give them incentive to work out loan modifications.
4. Require banks to attempt modifications as a condition precedent to foreclosure. More importantly, make the banks prove that they complied with these conditions, to a judge, even in uncontested cases, before they can begin a foreclosure suit.
Until some such actions are taken, the Tug-of-War will continue. So if you’re a homeowner facing foreclosure, unable to get a loan modification, you really have little choice but to retain a competent foreclosure defense attorney, fight your foreclosure, and see what happens in the court system. At worst, you’ll be able to stay in your home a bit longer, and, hopefully, get back on your feet.
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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 20th, 2010 by Mark Stopa
Maryland’s highest court has adopted an emergency rule, effective immediately, designed to identify and weed out irregularities in foreclosure cases.
Consider this another illustration of how, little by little, courts are doing more than rubber-stamping foreclosure judgments (in the wake of widespread proof of foreclosure fraud throughout our courts). Are you paying attention, Florida Supreme Court? As I blogged previously, you have the authority to do something similar.
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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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Posted on October 17th, 2010 by Mark Stopa
The Wall Street Journal called me last week, trying to gauge the uncertainty homeowners feel given the “moratoriums” in place by many banks. I’m quoted in the article as telling clients there’s “some uncertainty about the impact,” and that’s true. Foreclosure defense attorneys and homeowners alike really have no way to know for sure how long the moratorium(s) will last, what these banks are going to do next, or how the judiciary is going to respond to ever-increasing proof of foreclosure fraud. This picture encapsulates the uncertainty pretty well:
That said, I agree with the overall tone of the article - these temporary moratoriums won’t have much impact, especially in the long-term. Sure, a foreclosure sale will be cancelled here and there. The problem, though, is that when nobody is policing the banks, there’s only so much they’ll do to police themselves. As I’ve been saying for a long time, meaningful change will require action by the government and/or the judiciary.
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Posted on October 17th, 2010 by Mark Stopa
I’ve read lots of good articles about the foreclosure crisis, but this one really caught my attention. I totally agree with one point in particular:
“The main problem … was that banks were not paying lawyers and the other workers by the day or by the hour, but by the case. Thus, the way to make money was not to do a good job, but simply to get the job done. … One instance of unusual business was David J. Stern’s law firm in Florida. Instead of charging by the hour, 12 people took care of 12,000 cases for $1,300 per case. The one law firm alone took care of more than 70,000 cases in 2009, a large portion of the two million total cases. Much like many other firms, Stern’s had no organization and was essentially a factory line to get as many cases done as possible daily.”
I’ve seen this phenomenon at play in my foreclosure defense practice on a daily basis, and I assure you - this is a bigger deal than people realize. After all, when you’re paid a flat amount per case, as the foreclosure mills are, you have a huge incentive to compromise accuracy for the sake of speed. I’m not saying that’s right - if you’ve read this blog, you know I think it’s wrong - I’m saying I recognize the financial incentives for the foreclosure mills. At $1,300 per case, speed matters; accuracy doesn’t. As I see it, this is a huge reason for the foreclosure fraud that’s permeated our courts.
If you’re a prospective homeowner and think the fee structure of the banks’ lawyers doesn’t impact you, then, respectfully, you’re mistaken. Yes, it matters in the sense that it’s more likely there will be mistakes on your file, but there’s more to it than that. Think about it. If you have a foreclosure defense attorney such as myself defend a lawsuit, and the bank’s lawyers are getting paid a flat fee (the same fee they get if a case is uncontested), do you think those lawyers are going to be excited about getting into a big legal battle with me over your case? Or do you think they’re more inclined to set your file aside and work on an uncontested case? In my eyes, the answer is clear - if you hire an attorney to defend your case, and that attorney has a reputation for fighting vigorously for homeowners, the bank’s lawyers are more likely to set your file aside and pick up a different file. After all, why spend hours of work for $1,300 when the foreclosure mills can “push through” an uncontested foreclosure with minimal or no opposition (then ask the bank for another file)? As I see it, this dynamic is yet another compelling reason to retain a competent and well-respected foreclosure defense attorney.
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