Dear Florida judges:
You’re under a lot of pressure. We understand. Foreclosure cases are at an all-time high, and still rising – and you have to figure out a way to handle them all.
The foreclosure docket threatens to crowd out almost every other civil matter pending before the court – and now that foreclosure victims are getting wise and defending themselves instead of just rolling over, these cases are taking a lot more of the court’s time and effort than the old way, when uncontested foreclosures would be granted without any real critical attention to the evidence.
You’ve got chief judges breathing down your neck about the size of your docket, and the speed in which you handle these cases. While most of you became judges because you wanted to make important decisions, you’ve now been relegated to the role of case managers – speeding these cases along as fast as you can, ordering people out of their homes in five-minute hearings, relying on “evidence” that you wouldn’t even consider in any other kind of civil case, taking as true the representations of plaintiffs’ lawyers that you know have taken shortcuts in other cases… this isn’t why you went to law school.
I’ve got some good news for you: there is an answer to this overwhelmed docket. It’s called due process. And there are a number of ways in which due process will solve your ills.
Dismiss cases that should be dismissed.
The easiest way to clear your docket is to remove cases. Many judges take that approach in favor of the plaintiff: granting summary judgment prematurely, ordering the home sold, even when there are real factual issues that should prevent that. But most foreclosure cases, as they are filed today, should never make it to that stage. The complaint – the initial papers – are so completely defective that the court should throw them out on its own accord.
For example, since February 11, 2010, the Florida Supreme Court has required that all foreclosure complaints be filed under oath – “verified,” as the rule calls it. Few foreclosure plaintiffs’ law firms are submitting these sworn complaints, and unsworn complaints should be thrown out. At least one county is about to announce a policy of throwing them out without leave to amend – the plaintiff must re-file, and pay another $1,900 filing fee. They won’t make that mistake too many times.
Many other complaints should be tossed as well for a complete failure to state a claim. Where it’s obvious from the pleadings and the exhibits that the wrong bank has filed – kick it. This takes the case off your docket, and prevents sloppy lawyers on the plaintiffs’ side from wasting your time with cases that should never have been filed.
Circuit courts that get a reputation for dismissing non-compliant or sloppily-pled cases will soon find that they have fewer of those cases to deal with, and can focus on the ones that have merit.
Make plaintiffs respond to discovery.
One of the greatest complaints from the foreclosure defense bar is that plaintiffs deliberately stonewall and raise frivolous objections when met with even the most basic of discovery requests. I routinely ask plaintiffs to tell me who the witnesses are that know about the facts of their case – a simple, fundamental request that should be fully answered in all civil cases.
They object, every time.
I ask them for documents to prove they have the right to enforce the loan. Same boilerplate objections. I ask for documents my client has signed – objection. I ask for statements they’ve made to third parties about the loan – objection. All of these thing,s and many more, are routine discovery requests that the parties are entitled to ask and have answered. But in foreclosure cases, it’s almost impossible to get those answers.
But what if foreclosure cases wee treated the same way as all other civil matters? The judge would order the discovery answered. The plaintiff would either obey the rules and comply…. or they wouldn’t. And if they don’t, the case should get thrown out. And sometimes, they do.
Throwing cases out because a plaintiff has filed to obey the rules of discovery is a time-honored response to foot-dragging and stonewalling… in very other civil case. So too should it be in foreclosure cases.
Throw cases out for fraud or dishonesty.
Fraud on the court cannot be tolerated. Unfortunately, it happens all too often in foreclosure cases. Sworn testimony of the people working for plaintiff’s law firms has shown time and time again that foreclosure mills generate fake documents as “evidence” to submit to the court, and every once in a while, that fraud gets discovered. Dismiss those cases with prejudice and they’ll never come back. Sanction those attorneys and they’ll stop committing fraud on the court. And if they don’t have the evidence to foreclose – which is surely the reason they take the risk of fabricating it – they won’t file the case in the first place. There’s a another dent in the docket problem.
Stop granting summary judgment on flimsy evidence
Summary judgment, all too often, cuts off a defendants’ right to trial in a foreclosure case even though the plaintiffs’ “evidence” is flimsy at best… a far cry from the “slightest doubt” standard that is supposed to apply in a summary judgment proceeding. Judges should deny these cases and allow them to go to trial.
This is counterintuitive – reduce your docket by spending more time on each case? Here’s how that will work – a trial flushes out those cases in which the evidence is too slim to grant the foreclosure. Each piece of evidence may be challenged, and if it falls short, excluded from admission. At first, this will take more time to process, but after losing a few cases when the evidence simply isn’t there, plaintiffs’ lawyers will stop bringing flimsy cases. And since so many of these cases involve flimsy evidence, the total number of cases filed will drop.
I could go on for days about the due process as a matter of fairness and justice. Instead, I’d like you to think of it in a new way: a way to improve your efficiency.
When filing an action for foreclosure of a mortgage on residential real property the complaint shall be verified. When verification of a document is required, the document filed shall include an oath, affirmation, or the following statement:
“Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief.”