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Posts Tagged ‘foreclosure defense blog’

Facing Foreclosure from a Homeowner’s Association

Did you know your home/condo can be sold at a foreclosure sale even if you’re current on your mortgage payments?  Or even if you own your home/condo free and clear?  I’m not talking about nefarious acts by a bank (this time).  Rather, foreclosures can happen in Florida, consistent with the law, if you live in an association and you fail to pay your association dues.  

Given the nature of my mortgage foreclosure defense practice, I’ve seen this dynamic many times.  Typically, the homeowner: (i) doesn’t realize he/she is behind on association payments, then gets sued for foreclosure; (ii) doesn’t think he/she can afford those payments and gets sued for foreclosure; or (iii) wrongly presumes an association foreclosure lawsuit can be defended like a mortgage foreclosure case.  No matter the situation, the homeowner is making a mistake that must be avoided.  Quite simply, you can’t fall behind on association payments. 

Let’s put it this way – even though I make my living charging attorneys’ fees, I do everything possible to prevent/turn away these cases, for a variety of reasons: 

First, unlike mortgage foreclosure cases, there often aren’t any defenses in a foreclosure case brought by an association.  Yes, sometimes the association attorneys charge ridiculous attorneys’ fees, but that’s not going to defeat a foreclosure, it’s just going to reduce the amount of the judgment.  Call me crazy, but I don’t like charging attorneys’ fees if I don’t think I’m going to help a client. 

Second, foreclosure lawsuits brought by an association tend to go much quicker than mortgage foreclosure cases.  If you think delay will be a by product of defending an association foreclosure, you’re probably wrong. 

Third, getting current on association payments isn’t nearly as daunting as getting current on a mortgage – often it’s just a matter of a couple thousand dollars, perhaps less.  Although that’s a lot of money for some people, it’s a small price to pay to avoid foreclosure and keep living in your home (especially if you have an attorney defending a mortgage foreclosure case).  Plus, unlike mortgage foreclosure cases, where a few thousand dollars in attorneys’ fees for the bank’s attorney are a drop in the bucket compared to the total amount owed on the mortgage, thousands of dollars in attorneys’ fees in association cases make a big difference in the total amount owed.  In association cases, it’s almost always best to stop the bleeding as soon as possible. 

Fourth, the amount you owe your association will go up astronomically if you don’t stay current.  By the time the association tacks on include late fees, penalties, interest, and attorneys’ fees, $1,500 in association dues can easily become $3,000, $4,500, or more.  Then, if you have to hire a lawyer to defend the case, you’re paying your own lawyer while you’re also incurring more fees to the association’s lawyer.  Again, I like getting paid, but collecting fees in a situation like this rarely behooves the client.  I’d rather see homeowners keep the money they’d pay me and use them to get current with their association. 

The combination of these factors cannot be overlooked.  Association foreclosures go quicker, there are fewer defenses, and they’re very expensive to defend, especially compared to the total amount owed.   Don’t lose your home to a foreclosure by your association.  And don’t let your unpaid balance get so out of hand that you get sued – you’ll win up paying far more than you otherwise would, and there’s probably not much a lawyer can do to change that.

Mark Stopa

www.stayinmyhome.com

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Failure to Amend = Dismissal With Prejudice

I’ve said many times that if you defend your foreclosure case then you never know what good may come of it.  Today, I saw another example of that.

I filed a Motion to Dismiss early in 2011.  It was pretty standard.  The motion was granted, and the judge’s Order gave the plaintiff 20 days to amend.  That was over two months ago and the plaintiff never amended.  So I got creative.  I wrote this letter to the judge, enclosing this Renewed Motion to Dismiss

As the motion reflects, I asked that the judge enter an Order dismissing the case with prejudice unless the plaintiff amended within a certain number of days.  In response, the judge did exactly what I asked – he entered this Order saying the case was dismissed with prejudice unless the Plaintiff filed an Amended Complaint within 10 days. 

Last week, the 10 days passed and the plaintiff did nothing.  Hence, this case has been dismissed with prejudice. 

Reasonable lawyers, and even reasonable judges, can disagree about what “with prejudice” means in the context of mortgage foreclosure cases.  However, it is clear this case is over, and the homeowner, at worst, has an argument that the plaintiff is barred from re-filing a new lawsuit.  

Note that there wasn’t anything terribly special about what I did here.  I didn’t prove the bank committed fraud.  I didn’t prove any nefarious acts.  I simply defended the case and utilized the rules of procedure to my advantage.  Consider this another illustration of why you should defend your foreclosure case!

Mark Stopa

www.stayinmyhome.com

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The solution to the courts’ funding problems

Charles Canady, the Chief Justice of the Florida Supreme Court, is concerned about the lack of sufficient funds for Florida courts.  He’s quoted as saying:

We’ve seen a drop in the filings. It relates to these (robo-signing) problems. That has affected our revenue and it’s something that’s very much a concern.

Maybe I’m reading that wrong, but is the Chief Judge somehow suggesting the “robo-signing problem” was a good thing, as it resulted in more foreclosure filings and the fees resulting from them? 

Anyway, I think the solution for the courts is simple – when appropriate, dismiss cases! 

When a bank lacks standing at the inception of a foreclosure lawsuit, dismiss the case! 

When a bank files fraudulent foreclosure affidavits, dismiss the case! 

When a bank fails to state a cause of action, then fails to amend within the time limits permitted, dismiss the case!

When a bank fails to properly verify a complaint, dismiss the case! 

If Florida judges started dismissing foreclosure lawsuits (when permitted by law, of course), and forced banks to re-file, then the increased filing fees would help fix these budgetary concerns.  Oh, and it would keep homeowners in their homes, help prevent foreclosures, and show Americans that judges are willing to follow the law and not just “push through” foreclosure judgments.

Mark Stopa

www.stayinmyhome.com

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Posted on December 7th, 2010 by Mark Stopa

According to RealtyTrac (below), America won’t see a rebound in the housing market until 2014.  In fact, it’s predicted that things will get worse – and home values will decrease further – before they get better. 

From what I’m seeing and experiencing, I totally agree.  I’ve read about a “lost decade” before and, unfortunately, we’re in one. 

With this in mind, strategic default is becoming a more attractive option for more homeowners.  The stigma of strategic default is continuing to lessen, as, candidly, more and more people realize it is a sound business decision for many homeowners. 

Here is the article from Reuters…

(Reuters) – The housing market will remain depressed, with record high foreclosure levels, rising mortgage rates and a glut of distressed properties dampening the market for years to come, industry experts predicted on Tuesday.

“We don’t see a full market recovery until 2014,” said Rick Sharga of RealtyTrac, a foreclosure marketplace and tracking service. He said that he expected more than 3 million homeowners to receive foreclosure notices in 2010, with more than 1 million homes being seized by banks before the end of the year.

Both of those numbers are records and expected to go even higher, as $300 billion in adjustable rate loans reset and foreclosures that had been held up by the robo-signing scandal work through the process. That should make the first quarter of 2011 even uglier than the fourth quarter of 2010, he said.

There have been allegations banks used so-called robo-signers to sign hundreds of foreclosure documents a day without proper legal review.

Mortgage rates will start to rise in 2011, further dampening demand and limiting affordability, said Pete Flint, chief executive of Trulia.com, a real estate search and research website. “Nationally, prices will decline between 5 percent and 7 percent, with most of the decline occurring in the first half of next year,” he said.

Interest rates on 30-year fixed rate loans will creep up to 5 percent, and that alone will add $120 per month to the typical mortgage payment on a $400,000 loan, Flint said in a joint news conference.

The two firms released a survey showing a marked deterioration in consumers’ views of the housing market, too. Almost half — 48 percent — said they’d consider walking away from their homes and their mortgages if they were underwater on their loans. That’s up almost 20 percent from when the same question was asked in May. “If that continues it would be an epidemic of strategic defaults,” said Flint.

Roughly 1 in 5 consumers said they expect it to be 2015 before there is a recovery in housing, according to the survey, conducted in November by Harris Interactive. Most respondents said they think recovery will come in 2012 or 2013. Would-be buyers suggested they wouldn’t really get serious about purchasing a home for another two years.

Sharga sees a big glut in distressed properties hitting the market. There are about 5 million loans that are at least 60 days overdue, he said. In the next 12 to 15 months, another $300 billion in adjustable rate loans will reset, and “they will default at pretty high levels.”

“Even with today’s low interest rates, you’re looking at an average of $1,000 or more in mortgage payments on loans that are overvalued by about 30 percent. That is where you will see a high level of walkaways,” Sharga predicted.

Not all markets will share equally in the troubles. Flint said he expects to see improvements in several markets, including Raleigh-Durham, North Carolina; Austin, Texas; Oklahoma City, Oklahoma; Salt Lake City, Utah and Omaha, Nebraska.

Homebuyers who are willing to take risks and buy distressed properties are likely to see discounts of around 30 percent from prices on comparable homes that are not in distress.

Mark Stopa

www.stayinmyhome.com

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Foreclosure statistics – WHY? (More proof that banks are harming the economy)

A recent article on Yahoo shows that banks foreclosed on 95,364 properties in August, 2010.  Think about that for a moment.  In one month alone, nearly 100,000 homes were foreclosed.  Whenever I see statistics like this, my immediate reaction is to wonder “Why?  What is this accomplishing?” 

Some judges, including Palm Beach County Chief Judge Peter LeBlanc, have tried to justify the increasing number of foreclosure judgments (and the use of foreclosure “rocket dockets” and the use of senior judges) by arguing “it is important to clear the foreclosure cases so that vacant and dilapidated homes can go back on the market, presumably increasing neighborhood property values.”  When I saw this quote from Judge LeBlanc, I blogged about it, below, arguing that banks are harming the economy, not my clients, because banks cause homes to be vacant and abandoned, not homeowners.  If you read today’s Yahoo article closely, you’ll see what I mean.  After all, as Yahoo reports:

“Fewer than one-third of homes repossessed by lenders are on the market”

Ponder that for a minute.  Foreclosures are on the rise, at never-before-seen rates … yet the homes that banks are foreclosing are not being listed for sale.  What does that mean?  Simple –

Banks are causing homes to be vacant and abandoned.

That may sound harsh, but there is no other explanation.  To illustrate, if 95,000(+) homes were foreclosed in August, and banks are listing only 1/3 of those properties for sale, then 60,000 homes that were foreclosed in August are now vacant/abandoned. 

There is no other conclusion that can be drawn here.  The numbers don’t lie.  Banks are causing homes to be vacant and abandoned.  Every time another foreclosure judgment is pushed through, another homeowner is removed from his/her home, causing the home to sit, empty. 

This is what lawyers such as myself and fellow foreclosure defense attorney Matt Weidner have been saying for a long time. 

Why are Florida courts in such a rush to foreclose on homeowners? 

There simply aren’t enough buyers for all of these properties that banks are foreclosing upon, so all that’s happening when courts “push through” foreclosure cases is that homes which were occupied become vacant.  Instead of a family having a place to live, a bank adds another property to its inventory (and that property sits, unoccupied). 

Respectfully, I dare anyone to explain how this helps our economy. 

How does it help for homeowners to be removed from their homes so those homes can sit, idle, unoccupied, not even listed for sale?

How does it help for tens of thousands of homes to become vacant every month? 

I urge judges to ponder these questions when they are asked to sign a foreclosure judgment.  Ask yourself, judges, “am I really helping the economy?”  “Who is being helped here?”  If you don’t think that matters, remember – mortgage foreclosure cases sound in equity.

Where is the equity in foreclosing on another homeowner when that home will sit, unoccupied, without being sold, for months or years? 

I fear that some judges, in their ongoing urge to “clear the backlog” of foreclosure cases from their dockets, are not going to be persuaded by this argument.  If so, then please, at least spare us the argument that Chief Judge LeBlanc made when he told the media that “it is important to clear the foreclosure cases so that vacant and dilapidated homes can go back on the market.”  Respectfully, at this point, we all know that’s simply not true.  In other words, let’s call a spade a spade.  

The only thing foreclosures are accomplishing is filling the bank accounts of fat cat bankers, who are accumulating homes at record rates and waiting to sell those homes so as to maximize their own profits. 

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Forcing judges to listen during a “rocket docket”

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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401(k) withdrawals increasing – WHY?

One of the stories making national news right now is how 401(k) withdrawals have increased drastically.  As the article reflects, the main reason for these increases is people paying their mortgages.

I can’t begin to tell you how much this disappoints me.  I’m not going to repeat my entire blog about strategic default, below, but I will say this.  Loan modifications aren’t happening.  If you think the bank will agree to a loan modification if you can “hang on” a little longer (by paying your mortgage with 401(k) funds), you’re probably waiting for Santa Claus.  In other words…

Before you pillage your retirement account, and ruin your future, to keep paying a mortgage you probably can’t afford (on a house worth far less than you owe), I strongly suggest you re-evaluate your situation.

In my view, it’s rarely a good idea to use retirement funds on monthly mortgage payments.    

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