Posted on December 6th, 2010 by Mark Stopa
Every time I think things can’t get more screwed up with how judges handle foreclosure lawsuits in Lee County, Florida, they do.
Today, I had the unfortunate displeasure to read an Order from a Lee County Judge that states, and I quote “Lee County is not requiring that Plaintiffs comply with Fla.R.Civ.P. 1.510(e).”
Respectfully, this is disgusting. It’s bad enough for the Lee County judges to intentionally and systematically disregard the law on a widespread basis, as I’ve reported on this blog on a number of occasions. It’s even worse to actually say, in a written Order, that they’ve decided that they don’t have to follow the law in foreclosure cases. The Order might as well say “Lee County Judges have decided the law doesn’t matter and banks can always foreclose when they file suit.”
If this is too hard to believe, read the Order – here
If this issue doesn’t make sense, let me explain.
When bank representatives who sign affidavits in support of a summary judgment lack personal knowledge of the content of those affidavits (as they invariably do), the law requires that any documents relied upon in the execution of that affidavit be attached to the affidavit. For instance, if the affiant reviewed a life of loan history to determine the amount owed, the life of loan history should be set forth in the affidavit. This requirement is codified (by the Florida Supreme Court) in Rule 1.510(e).
The robo-signer controversy became a national media story when a handful of foreclosure defense attorneys in Florida realized that the individuals signing these affidavits for the banks lacked personal knowledge of the content of these affidavits (and, in fact, basically had no clue what they were signing yet signed thousands of these affidavits every day, hence the term “robo-signer”), but the required documentation was not attached. Hence, a standard argument for homeowners’ attorneys is to argue that the affidavits cannot be used to support summary judgment because the required documents are not attached. Candidly, there are legions of controlling Florida cases which indicate this argument to be well-taken. This alone requires that summary judgment be denied.
Unfortunately, the Lee County judges have taken it upon themselves to ignore this rule of law (along with many others) so as to “push through” foreclosure cases faster. Essentially, this Order says “We don’t care what the law says – we’ve decided that the law does not apply in foreclosure cases.”
It’s past time that everyone in Lee County complain about these issues. I mean, when it gets to the point that judges blatantly disregard the law – so much so that they openly say as much in written orders – something must be done. Alert the press. Complain to the judges. Don’t let this procedure remain without a fight.
Mark Stopa
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Posted on December 6th, 2010 by Mark Stopa
I am in receipt of a letter written by Honorable Peter Blanc, Chief Judge of Florida’s Fifteenth Judicial Circuit (Palm Beach County), wherein Judge Blanc asks bank lawyers to comply with an administrative order regarding the Cancellation of Foreclosure Sales. As Judge Blanc sees it, the problem is that his court system is burdened with administrative work caused by banks routinely cancelling foreclosure sales at the very last minute.
I read Judge Blanc’s letter, and, candidly, I am troubled – on a number of fronts. As such, I wrote a Response, which is found below.
My primary bone of contention is this – the eleventh-hour cancellation of foreclosure sales is a much, much bigger issue than the administrative work that results for the court system. I don’t want to sound disrespectful, but I believe Judge Blanc has lost the forest for the trees here. In other words, are the last-minute cancellations of foreclosure sales causing problems for the courts? Undoubtedly. But rather than telling banks to cancel the sales sooner, shouldn’t people in positions of authority, such as Judge Blanc, be trying to evaluate why these foreclosure sales are being cancelled and try to do something to change the process?
Personally, I find it absurd that thousands of homes are sitting, empty, abandoned, going further and further into disrepair (a result of homeowners being scared into vacating possession via a foreclosure judgment yet the banks cancelling the foreclosure sale and not taking title), yet the Chief Judge overseeing it all is only concerned about the impact on court staff.
Respectfully, shouldn’t we be doing something to address the fact that homeowners are being dispossessed yet the homes they’re being forced to vacate are sitting unoccupied (because the banks won’t conduct foreclosure sales and won’t take title)?
Am I the only one who finds it absurd that Floridians are being evicted yet banks aren’t taking title and these homes aren’t going back on the market?
What does a foreclosure accomplish if the home sits, unoccupied?
In his letter, Chief Judge Blanc indicates that effective January 3, 2001, all affidavits in support of summary judgment in foreclosure cases “shall include as an attachment copies of payment records upon which the affiant relies to support the motion,” as required by Fla.R.Civ.P. 1.510(e). Unfortunately, though, Chief Judge Blanc is not requiring this because this is the law requires it (and judges in his circuit have been overlooking this requirement). Rather, the judge’s concern is “the recent trend of post-judgment cancellations caused by concerns with the content” of these affidavits.
What does that mean, exactly? As I read it, Chief Judge Blanc is directing that Rule 1.510(e) be followed, per the law, only because of his concerns about the eleventh-hour cancellations of foreclosure sales, which burden court staff. In other words, as I read it, Judge Blanc is saying “I’m requiring that the law be followed, not because it’s the law and must be followed, and not because there are serious questions about the propriety of these affidavits, but because the failure to attach documents to summary judgment affidavits is causing foreclosure sales to be cancelled, burdening court staff, and I don’t want my court staff burdened.” In fact, it seems to me that the judge is advocating for the banks, as if he’s saying “attach these documents to summary judgment affidavits so these foreclosure sales can go forward and not be cancelled.”
Respectfully, judge, is this what it’s come to? Aren’t judges supposed to follow Rule 1.510(e), requiring documents be attached to affidavits in foreclosure cases, because it’s the law? Particularly given the legitimate concerns about the propriety of these affidavits, shouldn’t you follow the law because it’s the law? Respectfully, I can’t believe I’m reading a memo directing that the law be followed because to do otherwise burdens court staff.
Perhaps more significantly, aren’t you concerned about the cancellation of foreclosure sales for reasons besides the impact on your court staff? Respectfully, the entry of foreclosure judgments – and cancellations of foreclosure sales – is impacting hundreds of thousands of Floridians. Arguably, this is the single biggest issue in our economy today … yet you’re only viewing the issue from the perspective of the burden on your Court staff? Respectfully, that disappoints me. After all, if people in positions of authority, such as yourself, won’t take a “big picture” view, then who will?
In my view, the fact that banks are systematically pushing foreclosures yet not taking title is yet another reason for Florida courts to slow down in the prosecution of foreclosure cases. Respectfully, what’s the rush? If banks aren’t taking title, and homes are sitting abandoned, why throw a neighbor on the streets?
Mark Stopa
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