An Appeal to the Trial Court Judges
Posted on July 16th, 2011 by Mark Stopa
Below is an email I just wrote to the Honorable Thomas McGrady, Chief Judge of Florida’s Sixth Judicial Circuit. My point in writing him was to show him the Florida Supreme Court’s recent ruling regarding lack of prosecution, i.e. Rule 1.420(e), and see if he’d be willing to discuss the issue with the powers that be, i.e. the Florida Supreme Court.
After I hit “send,” I realized that this appeal needs to be made to all Florida judges and all Florida homeowners.
If you’re a judge, and you agree with me that our courts desperately need a mechanism to adjudicate/dispose of foreclosure cases that have been languishing for years with little/no activity, then tell the Florida Supreme Court it should amend Rule 1.420(e) to give it some “teeth.”
If you’re a homeowner, and you agree with me that giving Rule 1.420(e) some ”teeth” is a better solution than the procedures currently being employed in Florida courts, then tell someone about it.
The Florida Supreme Court’s recent ruling on this issue is, in my view, terribly impractical. With the tremendous backlog of cases before our courts, the Court should be making it easier, not harder, to dismiss cases for lack of prosecution.
Respectfully, I cannot help but think that if the Court realized what was going on – if it saw what we see on the front lines of the foreclosure crisis, that it would agree that Rule 1.420(e) should be amended to make it easier, not harder, to dismiss cases that have been languishing.
Here is my email …
Your Honor,
I know this seems like it’s out of the blue, but if you haven’t seen it already, I wanted to discuss with you the Florida Supreme Court’s recent opinion,
here, which clarified just how high the standard is to dismiss cases for lack of prosecution.
Respectfully, I find this ruling bitterly disappointing, and I suspect you do as well, particularly as it pertains to the foreclosure crisis.
I mean, this case gave the FL SUP CT an opportunity to help judges such as yourself deal with the enormous backlog of cases by making Rule 1.420(e) have some “teeth.”
I’m not suggesting it go overboard, but at least make it more like the Rule was prior to its amendment in 2006.
If that had happened, judges such as yourself would have a legitimate way to adjudicate/dispose of foreclosure cases that have been languishing with little/no activity for years.
I think anyone on the front lines of the foreclosure crisis would acknowledge the need for such a mechanism.
Instead, the way the Court ruled, it is basically impossible to dismiss for lack of prosecution.
The plaintiff can file any piece of paper in a year and the case remains active.
I understand the Court’s rationale, it just seems to me to be terribly impractical in today’s climate.
I’d point you to the last paragraph of Justice Pariente’s concurring opinion, where she notes:
Unfortunately, the significantly diminished resources available to the trial courts, including lost case managers and the flood of mortgage foreclosure cases, have taxed our trial courts to the limit, making active case management more difficult in all cases. Regardless, the bottom line is that these problems cannot be solved by using Rule 1.420(e) to dismiss cases where the litigants intend to continue to prosecute the case to a conclusion.
She recognizes the problem but declines to apply the rule in a way that would help cases be dismissed.
My question is … why?
Why not employ the rule as it previously existed, at least with respect to the 60-day period after the Notice of Intent to Dismiss?
I know that judges throughout Florida are looking for ways to get through the backlog of cases.
Why not have a Rule 1.420(e) that allows courts to legitimately do that?
I’d argue that is much better than some of the procedures going on throughout the state.
In my view, a rule like that would help courts legitimately deal with the backlog AND help the budgetary constraints.
After all, every time a case is dismissed for lack of prosecution, it is dismissed without prejudice, so the case is re-filed, and a new filing fee ensues.
My point here is this …
I believe you have the power, if you were so inclined, to bring this issue to the attention of the appropriate people.
I respectfully request/encourage you to do so, as I think it will help you and other judges/courts throughout the state.
I am willing to help however, I can, but my ”power” is quite limited (though I will note that I interned for Justice Quince several years ago, and she wrote the dissenting opinion).
If this email is out of line, then I apologize.
I just can’t help but think that you will agree with me on this issue and that if this Rule were given more thought, that the Court could be convinced that its recent ruling is not the best way to deal with the current climate of foreclosure cases.
If you prefer to talk to me about this, feel free to do so at 727-XXX-XXXX.
Thank you for your attention to this matter.
Mark
Mark Stopa
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