Archive for November 23rd, 2010

Lee County – It’s Time to Change your Foreclosure Procedures

I’ve spokenly openly and candidly on this blog on many occasions about the need to change the perverse judicial procedures that permeate some of our courtrooms in Florida.  Nothing has gotten my gander up more in this regard than the perverse judicial procedures employed in Lee County, Florida (the Twentieth Judicial Circuit, based in Fort Myers).  I realize “perverse” is a strong word, but that’s the only word that comes to mind for what’s happening in Ft. Myers

Here are the facts.  In foreclosure lawsuits in Ft. Myers, judges (typically Judge Carlin) routinely enter an Order setting a docket sounding, right after the case is filed.  These Orders are entered sua sponte (meaning on the court’s own initiative, without having been requested by either party), and they specifically provide that summary judgment will be entered at that hearing, failing which the case “will” be set for trial.  These Orders also impose a discovery cut-off, usually the day of that hearing, meaning the parties cannot take discovery thereafter.  Essentially, the judges have taken it upon themselves to litigate an entire foreclosure lawsuit in the span of a few months.

Here’s the first problem.  A case cannot be set for trial until it is “at issue,” under Fla.R.Civ.P. 1.440.  This means that if a motion to dismiss is outstanding, and the homeowner has not filed an Answer, the case cannot be set for trial.  See Precision Constructors, Inc. v. Valtec Constr. Corp., 825 So. 2d 1062 (Fla. 3d DCA 2002); Bennett v. Continental Chemicals, Inc., 492 So. 2d 724 (Fla. 1st DCA 1986) (en banc).  (En Banc means that every judge on the First District joined in the decision – a rarity in appellate cases.)  In Ft. Myers, the judges routinely find the case is “at issue” and ready to be set for trial, even when the Motion to Dismiss has yet to be heard – a very basic legal error. 

In my eyes, this is more than just a technical problem.  When a judge is sua sponte saying a case will be set for trial, even though the Motion to Dismiss has yet to be heard, he’s making it clear that he’s already decided he’s going to deny the Motion to Dismiss.  Think about it this way.  If a Motion to Dismiss is granted, then, unless leave to amend is granted, there is no trial at all!  By setting a trial before the motion to dismiss is heard, the Ft. Myers judges are foreclosing the possibility that the Motion to Dismiss would be granted – without having heard the Motion to Dismiss on the merits!  Under basic law, judges cannot pre-judge a case in this manner. 

I’m also deeply troubled at how these Orders impose a two-month period to conduct discovery.  Respectfully, that’s grossly inadequate – so much so that it’s insulting.  Respectfully, I find that offensive.  You see, discovery often takes many months.  You have initial discovery, then follow-up discovery, sometimes with hearings to compel the other side to produce discovery.  At minimum, parties would need six months to take discovery in a typical civil case – and that would be a bare minimum, if we were rushing through it.  Also, a defendant should not be forced to complete discovery prior to a determination whether the Complaint states a cause of action.  After all, if an Amended Complaint is required, the defendant is being forced to complete discovery prior to the date an Amended Complaint is even served.  How can a defendant litigate a case without getting discovery on the operative complaint?  You can’t, and that’s precisely the point – the judges have predetermined that they won’t require an Amended Complaint even without having heard the Motion to Dismiss.  The entire approach is patently ridiculous, but that’s what the judges in Lee County are doing. 

It’s also unfair that these judges are routinely setting these hearings without clearing the date yet refusing phone appearances.  I’ve discussed that issue before vis a vis Orange County, so let’s summarize like this – it’s clear to me that the judges are trying to make it harder for foreclosure defense attorneys to represent homeowners and defend foreclosure cases.  Personally, I won’t stand for that.  Foreclosure is a huge issue in a homeowner’s life.  Homeowners are entitled to counsel.  Widespread conduct that violates the law and is aimed at making it harder to represent homeowners is intolerable in my book. 

Recently, I was so irritated by this procedure (and the unfairness that results from it) that I filed a Motion to Disqualify Judge Carlin.  He denied it, so I am filing this Petition for Writ of Prohibition in the Second District. 

I’m very confident this Petition will be granted.  In fact, this won’t be the first time I’ve convinced the Second District to grant a Writ of Prohibition when Judge Carlin inappropriately denied a well-taken Motion to Disqualify him.  My hope, though, is much bigger than this one case.  I’m concerned about the “big picture” in Lee County.  To illustrate, I urge you to check out the portion of the Petition for Writ of Prohibition (near the end) that I labeled “Analysis:  The Big Picture.”  My point, simply, is this:

The procedures being utilized in foreclosure cases in Lee County are perverse, unlawful, and reflect the courts’ obvious bias against homeowners.  It’s time the Lee County change their procedures, even if it means the Second District tells them to do so.

By posting this blog in this manner, I realize I’m opening myself up to criticism.  That’s not ideal, but at this point I see little alternative.  Also, please realize this – I wouldn’t be writing in this tone unless I was 100% confident I am that the procedures being utilized in Lee County are wrong.  The law is clear – judges can’t set trial and a two-month discovery cutoff when motions to dismiss are outstanding.  It’s time someone stood up and told them to stop.  Also, I’m hopeful that other litigants and attorneys reading this will agree with me and push these same arguments.  It’s past time that the judges in Ft. Myers started treating homeowners fairly, even in foreclosure cases

Mark Stopa

Posted in Main | 30 Comments »