Aggressive Foreclosure Defense Can Prompt Changes in the Judiciary

One of my goals, both as a foreclosure defense attorney and the author of this blog, is to make everyone – the public, homeowners, and judges – aware of the many pitfalls with the way foreclosure cases are handled by our courts.  I realize not everyone agrees with my positions on all of these issues, and that’s okay.  I also realize I’m not well-liked in some circles for being so vocal in my views, and that’s okay, too.  My job isn’t to be well-liked – it’s to represent homeowners as well as I possibly can (consistent with the law and my ethical obligations).  Besides, meaningful change in how foreclosure lawsuits are handled is nothing but a pipe dream unless someone such as myself is willing to stand up and say “this is wrong.”  Not everyone will agree 100% of the time, but I stand no chance if I don’t try.

For example, a few weeks ago, I started receiving Orders from Honorable Douglas Baird in Clearwater which systematically denied my clients’ Motions to Dismiss, without a hearing.  I found this troubling, particularly since Judge Baird had not even placed me on notice that he might be ruling on such motions without a hearing.   Given my overwhelming belief that this disregarded the most basic notions of due process, I felt compelled to file a Motion to Disqualify the judge. 

As I’ve said before in this blog, I don’t want this to appear as if I disrespect Judge Baird.  I respect him plenty.  The issue is that I strongly disagree with him on these issues and, candidly, felt compelled to tell him so.  As I see it, if I can’t express respectful disagreement (especially on issues for which there is no clear “right” answer), what’s the point of being a lawyer? 

Anyway, Judge Baird granted the Motions to Disqualify, and in so doing, wrote me a letter.  The letter said, in essence, ”I figured foreclosure defense attorneys such as yourself realized that it was my procedure to deny motions to dismiss without a hearing, but since you didn’t realize that, I’m granting the Motions to Disqualify.” 

Judge Baird and I are never going to agree on some of these issues.  What I respect, though, is that even though he disagrees with me, Judge Baird realized how his procedure could be construed to others as unfair, particularly when I didn’t know about it beforehand.  In fact, since that happened, I have yet to receive an Order denying a Motion to Dismiss without a hearing from Judge Baird.  Is that a coincidence?  Maybe.  That said, I just received an Order (in a different case) from Judge Baird directing me to file a written memorandum to the bank’s response to my Motion to Dismiss within five days, after which he may rule on the Motion to Dismiss without a hearing.

Respectfully, I still find this new procedure patently unfair, and I said as much in another Motion to Disqualify.  As I see it, the judge should not be taking it upon himself to prosecute a lawsuit that the Plaintiff has chosen, for whatever reason, to let stagnate.  In other words, it’s not a judge’s role to say “I see the Plaintiff has stopped prosecuting this case.  It’s time for me to help advance the case towards judgment.”  My concern about this conduct is heightened by the fact that the Plaintiff is seeking relief in the case and the Defendant is not.  Where only one party is seeking relief, the judge’s attempts to advance a dormant case towards judgment, sua sponte, reveal bias. 

Also, I find it unfair to be given five days “from the date of the Order to file a written response.”  By the time I received the Order, that gave me three business days to respond.  Respectfully, that’s unreasonable.  There is no emergency here; this case has been languishing for months.  For the judge to suddenly, out of the blue, require me to file a written response within three business days, failing which my client’s argument may be denied without a hearing … I find that inappropriate.  What if I were on vacation?  What if I were in trial?  What if I were busy with other files?  I have handled all types of lawsuits, from inception through trial and appeal, and I can’t ever recall being given such a short deadline.  Respectfully, why should I have to drop everything to file a written memo (in three days)?  Simply because the judge decided, on his own, to start prosecuting this case towards judgment?  

All of that said, I can’t help but feel a bit encouraged.  After all, even though I suspect he still disagrees with me, it appears that Judge Baird has changed his procedure, if only a little.  Instead of denying a Motion to Dismiss outright, without a hearing (and without any warning that a ruling may be coming), he’s at least giving me a chance to file a written memorandum before he rules.  I still think this is insufficient, but at least it shows that the judges are receptive to opposing viewpoints.  It’s a baby step, yes, but Rome wasn’t built in a day. 

Candidly, I’m don’t know how Judge Baird is going to react to this most recent Motion to Disqualify.  I’m sure no judge likes receiving such a motion, and I suspect he still disagrees with my belief that his procedures are flawed.  That said, I remain hopeful that he will continue to re-evaluate his stance on these issues.  After all, I’ll argue all day long, as I have several times now, that it’s not a judge’s role to set a foreclosure case for hearing when the plaintiff has decided, for whatever reason, not to push the case towards judgment. 

Part of my willingness to express these views in an open forum, other than my stern conviction that I’m right, is that judges are all over the map on issues such as these.  To illustrate, consider the procedures of Judge Anthony Rondolino.  Like Judge Baird, Judge Rondolino is a Pinellas County judge.  The rules are the same for both judges, the law is the same, and the cases are generally the same.  Nonetheless, Judge Rondolino often grants Motions to Dismiss, most recently via this seven-page Order (entered after a 45-minute hearing), yet Judge Baird routinely denies Motions to Dismiss, often without a hearing.  When one Pinellas County judge is regularly granting well-taken Motions to Dismiss, after duly-noticed hearings, and another is regularly denying them without a hearing, there is clearly room for reasonable people – even reasonable judges – to disagree.  As such, it’s up to us, as foreclosure defense attorneys, to assert our views as respectfully but persuasively as possible.  Be respectful, but don’t back down, and don’t give up.  Judges are paying attention, and your efforts may make a difference.

As for homeowners out there, I strongly encourage you to evaluate which foreclosure defense lawyers are willing to fight, respectfully but forcefully, and which are just “going through the motions” of a foreclosure case.

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12 Responses to Aggressive Foreclosure Defense Can Prompt Changes in the Judiciary

  1. Hi there thanks for this nice and good post.

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  4. Sunny Seabrook says:

    Please advise. I am losing my home back to the homeowner who refused to work with me on lowering either my payments or interest. Could not sell even in a short sale. i currenty have tenants on a month to month rental of the property. Although the foreclosure has apparently been started I have not received notice that the foreclosure has gone through and public records still show me as the owner. The tenants received a hand delivered letter from the opposing attorney who stated that the rental income should now be going to the note holder. It was my understanding that I could continue to collect the rent UNTIL the foreclosure process had been completed. The rental income is the only way I have to recoup all of the monies I have put into the property. Please advise…
    Thank you

    • Mark Stopa Mark Stopa says:

      It is entirely possible, even typical, to collect rents on an investment property while a foreclosure lawsuit is pending, with two exceptions. First, if a bank files a motion to assign rents, and the homeowner executed an assignment of rents, then the bank is typically entitled to collect rents during the pendency of the foreclosure case. The good news here is that banks typically only do this on higher-end commercial properties; it’s rare on residential properties. Second, if a condo association or an HOA pushes to recover unpaid assessments, they will collect your rents. They are entitled to this by statute, and there’s likely nothing you can do about it.

      As a practical matter, if your goal is to keep collecting rent, it’s probably best to pay your association dues, as otherwise you’ll lose your rent monies to the association.
      Good luck

  5. Linda G Catania says:

    I lost my job a couple years and months ago. Was unable to pay HOA Fees. The HOA took me to court June of 2009. The amount at that time was $3400 the judge told him that she was going to take $500 off that amount, which brough the amount down to $2900. I explained to the judge that I was unable to pay the full amount owed at that time. She told me and the HOA atty to make out some arrangements. I spoke to the atty. afterward and he told me to email me. I did email him and stated that I would make a payment each month for $200 for 6 months and hen $600 each month for the remainder. This was in June I received no response after many many emails sent to him. In August of 2009 I received a copy from the courts that the deed to the house was auctioned for $100. I filed for bankruptcy, it was discharged April 2010. The HOA was included. I am not the only name on the mortgage my mate is as well. We worked out a modication with the mortage co. And now we (I) received a court order to writ of possession. This address is in Hillsborough county. Is there something that can be done. The mortgage co. advised Kevin my mate to put the deed in his name, which he did Sept. of last year. We sent all this information to the mortgage co. I think that this is fowl play from the HOA to auction our house. Is there something that can be done. Please Help. My Phone is 813-672-0682 and Kevin cell is 813-478-6799. IN DESPRISE NEEDED I HOPE THAT YOU GET THE FULL UNDERSTANDING OF THIE EMAIL, BECAUSE I AM VERY HEART BROKEN, THAT PEOPLE CAN GET AWAY WITH SOMETHING LIKE THIS. THANKS THANKS

  6. Ray says:

    Hello my mother’s home is being foreclosed due to not paying property taxes and she doesn’t work. Is there anyway we can work something out with the County to make payments and save the house from being sold?

    Please email me back I am willing to pay for your services.


    • Mark Stopa Mark Stopa says:

      You can pay any unpaid property taxes up until the time the property is sold at a tax deed sale. Payment automatically cancels the sale. Of course, payment has no impact on a mortgage foreclosure lawsuit. That said, banks will usually pay the property taxes while a mortgage foreclosure lawsuit is pending. There’s no guarantee of that, though – the best thing to do is check your county’s property tax records to make sure.

      I hope this answers your question. If not, give us a call. 888-450-1549.
      (I should clarify – this is how it works in Florida. It could be different in other states.)

  7. Shirley Dedmon says:

    We are coming to a close of a foreclosure case ( I think) and the mortgage company has come back with a payment for us to start in June being alot larger than what it was in the beginning before all this started. They originally did not have the note to the house and has cost us extra money when they did not even own it however they said they have found the note since all this began. Is this unusal for them to charge alot more than what was before especially with this loan modification I was under the impression it was to help people get back on thier feet not charge more than before they got into trouble. Please respond.

    • Mark Stopa Mark Stopa says:

      Unfortunately, I’ve seen this many times – modifications where the bank charges *more* than it did initially. Please read my blogs about loan modifications (on the front page of my website) for more information.

  8. Fran says:

    Thank you for having the guts to recuse a judge for writing orders without a hearing. Many attorneys are afraid to cross a judge at all.

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