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Posts Tagged ‘Palm Beach’

Wells Fargo admits more mistakes in foreclosure affidavits

As if we needed more proof that the banks’ foreclosure procedures are fundamentally flawed, Wells Fargo just announced it is re-doing affidavits in 55,000 foreclosure cases, as the original affidavits, executed by robo-signers, were flawed.  Lest you think 55,000 improper foreclosure filings is not a big deal, bear in mind – that’s just what Wells Fargo is admitting, based on its own, internal investigation.  If Wells Fargo is admitting to 55,000, you can bet the problem is far more widespread.

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Rush to Judgment – Why?

I’m seeing an increasing number of reports that banks are cancelling foreclosure sales, and, candidly, I’m as perturbed about it as the judges, but for different reasons. 

Judges are upset because they want to keep “pushing through” foreclosure cases so as to reduce their caseloads.  I’m perturbed because these cancellations show that the entire foreclosure process is senseless. 

When a foreclosure case gets to the stage that the bank is cancelling a foreclosure sale, that means the bank has convinced a judge to grant a Final Judgment of Foreclosure, and caused the homeowner to vacate possession (presumably), but won’t take title to the property.  I suppose I could sort of understand, maybe, a little bit, sort of, if the property was going on the market.  But if it’s just going to sit, abandoned, then what’s the point?   

Judges, why rush to enter judgments, and foreclose on Florida homeowners, when banks are leaving the houses vacant (and aren’t even taking title)? 

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Strategic Default and Bankruptcy – Where is Florida Headed?

The ongoing and systematic refusal by banks to enter meaningful loan modifications with homeowners will have long-term consequences that the average American cannot yet imagine.  Just try to picture it…

Imagine your typical American family.  Married couple, two kids.  Earn $40,000 per year.  Own a house worth $150,000 but owe $250,000.  Have two cars, a small amount of savings/retirement money, and $10,000 in unsecured debt (credit cards).   The numbers can vary, but you get the picture – your typical, middle-class family that’s making ends meat but not much else. 

There’s a strong argument to be made, for such a couple, that it’s in their best interests to strategically default, i.e. stop paying on their mortgage, defend their ensuing foreclosure lawsuit, and file a bankruptcy (Chapter 7 or Chapter 13, depending on their circumstances).  Each situation is different, but in all likelihood, this would drastically reduce or eliminate their credit card debts, drastically reduce or eliminate the deficiency on their mortgage (the $100,000 difference between what they owe on their home and what it’s worth), enable them to save money while their foreclosure case is pending, and give them a “fresh start” if/when the foreclosure is finalized. 

For instance, suppose the foreclosure lawsuit were to take a year to conclude (a conservative estimate in light of recent reports out of Palm Beach that the average case takes 18 months), and their mortgage payment was $1,500 per month.  With those figures, this couple would accumulate $18,000 in savings, merely by not paying their mortgage while the foreclosure lawsuit was pending ($1,500 x 12 = $18,000).  If they completed a bankruptcy, they could keep this $18,000 if/when the foreclosure case was over.  The $250,000 debt on the house?  Poof – gone (or substantially reduced).  The $10,000 in credit card debt?  Poof – gone (or substantially reduced).  Sure, this couple would lose their house, but what was the house really worth anyway?  As I see it, and I suspect most accountants would agree, losing a house worth $150,000 when you owe $250,000 means you eliminated a $100,000 liability.  Hence, the liabilities are gone, but the $18,000 – that’s the couple’s money to keep. 

Now imagine the foreclosure case takes two years instead of one.  Again, no way to know for sure, but given what I’m seeing in Florida, it’s certainly within the realm of possibilities.  In that event, the couple would have $36,000 when the foreclosure lawsuit ends in two years.  Think about that.  $36,000 cash and little or no debt (depending on the type of bankruptcy), and all you had to do was defend your foreclosure case and file bankruptcy!  And it’s all perfectly legal! 

With this example in mind, who wouldn’t want to strategically default?  I realize there are strong moral arguments not to do this, but let’s put aside morality for a moment and view this purely from a purely financial perspective. (That’s not terribly unreasonable, since that’s what the banks typically do.)  Isn’t it clear this couple would be better off by strategically defaulting on their mortgage, defending the foreclosure lawsuit, and filing bankruptcy?  In other words, isn’t it better to eliminate most or all of your debt, save up money, and have $18,000 or $36,000 or whatever amount in your pocket, and start fresh, than to owe $100,000 more on a house than it’s worth and credit card debt?  Heck, in today’s economy, $18,000 or $36,000 (or whatever amount you were able to save) could buy you a house, free and clear.  As such, it may be possible to convert your $250,000 mortgage into a free and clear house by doing nothing except strategically defaulting on your existing mortgage, filing bankruptcy, and retaining a competent foreclosure defense attorney to defend your foreclosure lawsuit. 

Now the staggering thought – there are literally millions of Florida homeowners in this type of situation.  Sure, there are plenty of Floridians who aren’t realistic candidates for bankruptcy because they have too many assets, too much income, or both.  In today’s economy, though, such people seem to be few and far between.  As such, what percentage of Florida homeowners could strategically default, stop paying their mortgage, file bankruptcy, and be better off?  40%?  50%?  More? 

Now, try to imagine what our country’s financial system will look like if this happens.  Imagine half of all Floridians with a mortgage – or half of all Americans with a mortgage – go into default.  If that happens, what will our financial sector look like?  Will big banks even exist?  What will property values fall to?  What will our court systems look like?  These are staggering questions for which there is no clear answer. 

Now a tough question – should the typical Florida homeowner care?  In other words, to what extent should homeowners continue paying their mortgages for the “good of society,” even to their own detriment?  Undoubtedly, there are arguments to be made on both sides of this issue as well.  Given society’s “me first” attitude, though, I’m confident many people will disregard the impact on society and embark on this path.  Hence:

As things now stand, millions of homeowners will choose a strategic default.

Avoiding this consequence should be the primary objective of the U.S. government.  Quite simply, our government must step in and do something to ensure that everyone doesn’t have the incentive to strategically default.  Our economy and financial sector as a whole will not be able to function if so many Americans have the incentive to stop paying. 

How does one go about this?  The problem, in my eyes, goes back to the absence of meaningful loan modifications.  People have the incentive to default because they see that a bankruptcy court would eliminate or reduce their debt and nobody else, i.e. the banks, is willing to do so.  Using the example above, if the banks reduced the mortgage to $150,000 or even $175,000, maybe that homeowner would have some incentive to keep paying.  Suffice it to say that to fix this looming crisis the government must implement some type of loan modification program that will work on a massive, widespread level.  Absent that, our country is headed down a path of “stop paying, file bankruptcy, defend the foreclosure, and come out on the back end far better off.”

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Explaining Judge Rondolino’s Order – a case study on the issues we face

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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Defending a Foreclosure Case – Re-Visiting the Basics

With foreclosure-related stories dominating national headlines on a daily basis, many lawyers, judges, and reporters have gotten knee-deep, if not neck-deep, in the foreclosure crisis.  Sometimes, we’re so immersed in the battle, so deep in the forest, it’s easy to forget that many Floridians are unaware of the basics when it comes to foreclosure defense.  Let’s take a step back, dispel some myths, and re-visit the basics:

1.  As a Florida homeowner, you don’t need to leave your home unless and until the bank *wins* a foreclosure lawsuit.  As such, even if you’re hopelessly behind on your mortgage, you don’t have to leave your home.  Even if the bank writes you a default letter and sends it by certified mail, files suit against you, and threatens you on the phone, you don’t have to leave your home.  You don’t need to leave your home unless and until the bank wins a foreclosure lawsuit against you

To put it differently, there’s a reason I chose the name of this website – www.stayinmyhome.com.   

Repeat after me:  “I have the right to ‘stay in my home’ unless and until the bank wins a foreclosure lawsuit against me.”

2.  As a Florida homeowner, you are entitled to have a foreclosure defense attorney represent you until the conclusion of your foreclosure lawsuit.  In my view, my job as a foreclosure defense attorney is quite simple – to do whatever I can, within the law and consistent with my ethical obligations as an attorney, to try to prevent banks from winning foreclosure lawsuits against my clients.  In any given case, my hope is that I can do a good enough job that the bank will offer my client a reasonable settlement offer and/or loan modifications that it otherwise would not offer.  I’ve said this when I started practicing foreclosure defense and I still believe it – if you give up, you’re going to get foreclosed, but if you fight your foreclosure case, you at least give yourself a chance to avoid foreclosure

3.  Many non-lawyers think it’s easy for a bank to win a foreclosure lawsuit.  That’s not necessarily so.  When foreclosure defense attorneys such as myself force lawyers to prove their entitlement to foreclose in court, banks sometimes struggle to meet their burden of proof.  Every case is different, and there’s no way to know for sure how any particular case will play out in court.  That said, it’s possible the bank’s lawsuit will get dismissed.  It’s possible, once you retain a competent and reputable foreclosure defense attorney, that the bank will be hesitant to go to court altogether.  It’s possible the court will deny the bank’s motion for summary judgment and force the bank to prove its entitlement to foreclosure at trial (which would extend the duration of the foreclosure lawsuit and, hence, your time in your home).  The court process, candidly, can be a bit uncertain.  In my view, though, uncertainty is better than giving up and accepting foreclosure on your home. 

As we’ve seen with the huge, national stories in recent weeks, nobody knows for sure what the future will bring.  If you give up, foreclosure is all but set in stone.  But if you defend your foreclosure lawsuit, you just may be able to stay in your home, perhaps for a long time, or even avoid foreclosure altogether.

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Florida – one state, two court systems

Today’s article in the Washington Post does a fantastic job of encapsulating the two vastly different ways that foreclosure cases are being handled in Florida courts.  In some circuits, like the Twelfth (Sarasota/Manatee) and Sixth (Pinellas/Pasco), most judges seem intent on ensuring fairness.  In others, though, like the Twentieth (Lee), Seventeenth (Broward), and Fifteenth (Palm Beach), the judges, well, as one foreclosure defense attorney quoted in the article put it – “they are the robo-signers!”  There are exceptions within each circuit (and I’ve seen some bad procedures in the “good” counties), but, generally speaking, the Washington Post is spot-on in its breakdown.  This disparate treatment of foreclosure cases is a trend that I’ve noticed for many months, so much so that it’s often hard for me to believe these counties are part of the same court system.  How can judges in the same state treat foreclosure cases so differently? 

I’ve already given several examples in this blog of what I perceive to be improper procedures utilized by judges, and I will be posting more such examples in the coming days.  As I continue on this process, I’d be remiss not to mention judges who are doing it correctly.  For instance, I’m pleased to read the quote from Pasco Judge Lynn Tepper, who says “I’m not there to grease it, to let anything slide.  We need to be making sure these are done right.” 

Think about that for a moment.  There’s nothing “over the top” about that statement.  This judge isn’t saying “I feel sympathy for homeowners – I want them to get to stay in their homes.”  She’s not saying “the banks are crooked and need to be punished.”  She’s saying:

“we need to [make] sure these [foreclosure cases] are done right.” 

That’s all that most homeowners and foreclosure defense attorneys are asking – do it right.  Isn’t that reasonable?  Why am I not reading quotes like that from every judge?  All too often, the judges are saying, essentially, ”you can’t expect me to review the court file before I finalize a foreclosure.”  I wish such judges realized, when they say such things, they’re encouraging the foreclosure mills to perpetuate the same abuses that got us into this mess.  After all, do you think the mills are going to take the time to do cases the right way if judges don’t make them (and don’t even review the files)?

I sincerely hope the Judges in Lee, Palm Beach, Broward, Hillsborough, and other such counties take a hard look at how things are being done in the Twelfth and Sixth Circuits.  There’s a right way and a wrong way, and spending “a few seconds” per file is wrong.

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Title insurance, where we go from here

Kimberly Miller of the Palm Beach Post was the first reporter who explained how the foreclosure moratoriums we’re now seeing are a direct result of title insurance problems.  She first reported that on September 24, 2010

After B of A announced it was halting foreclosures, Ms. Miller reported it again in today’s Palm Beach Post

This is the story, folks.  The banks didn’t stop foreclosures out of the kindness of their hearts, out of the sudden urge to “do the right thing,” or because judges made them.  The banks stopped foreclosures to give lip service to the title insurance companies, like Old Republic, that have stopped writing title insurance policies on foreclosure properties.  After all, even the banks realize that if they can’t get title insurance, the value of their REO will go down even more (yes, more). 

Soon, the banks are going to try to convince the title insurance companies that their title problems are fixed (the “lip service”), after which it will be “business as usual.”  At that point it will be up to foreclosure defense attorneys such as myself to continue to expose the pervasive fraud that permeates every aspect of foreclosure lawsuits in Florida and throughout the country.

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It’s not just Jeffrey Stephan, folks!

Many media outlets seem to be suggesting that GMAC’s decision to halt foreclosures in 23 states, including Florida, is a result of Jeffrey Stephan’s false affidavits. 

This is simply not true.  The issue is much bigger.  To illustrate, attached is an Affidavit and a withdrawal of that affidavit signed by Kristine Wilson, as Limited Signing Officer of GMAC Mortgage, LLC. 

More fallout is coming, but clearly the problem is not limited to Jeffrey Stephan.

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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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