This ruling is a disgrace: Lee County Judge Hugh Starnes has ruled that banks in foreclosure cases don’t have to follow court rules.
At a recent foreclosure hearing, the defense attorney (Conrad Willkomm) argued that the bank had violated an important evidentiary rule: the bank was relying on its business records, but no one swore that those records are correct, and no records were even provided to the court.
For Circuit Judge Hugh Starnes, however, that plea fell on deaf ears. Why? Because, he said, in Lee County, foreclosure plaintiffs don’t have to follow those rules. And then he signed an order that said exactly that:
Lee County is not requiring that Plaintiff’s [sic] comply with Rule 1.510 (e), Fla. R. Civ. P.
Note what Judge Starnes did not say: He didn’t say that he doesn’t think the rule applies to foreclosure cases. He didn’t say that the rules exempt both plaintiffs and defendants. He said that there is no judge in the county that will expect a plaintiff to obey this particular rule.
For the curious, here’s what Rule 1.510 (e) says:
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.
When a bank wants to foreclose on a home, they have to have a witness swear that the bank’s payment records are correct. Without those records, there’s no admissible evidence that the homeowner missed any payments—the most important element of a foreclosure lawsuit.
And in Lee County, evidence apparently doesn’t matter—so long as you’re the bank.
The sad thing is, Judge Starnes had a reputation for being a sympathetic problem-solver during his time on the bench in family court. He’s not, by any means, a bad person or even a bad judge. But he’s telling the truth about the system: in Lee County, at least, it’s rigged in favor of the banks.
What a disgrace.