When I was a kid, I used to read science fiction novels with aliens who swooped down to Earth, attached themselves to poor innocent human beings, and control their minds to do the aliens’ bidding.
When I read this order, the second of its kind from this judge, I have to wonder if that’s what’s going on in the Lee County Courthouse. Judge Starnes has once again issued an order that says the banks don’t have to follow the basic rules of court—the rules that protect the rights of all parties to a lawsuit and make sure that justice is dispensed fairly and properly.
What is this judge thinking? Again, I must note that before he became a senior judge handling foreclosures, this judge had a reputation as a fair and thoughtful judge who handled family law cases with sensitivity and care. And now he’s either signing orders without reading them, or he doesn’t care that he’s carving out special rules of law that say banks can do whatever they want in Lee County foreclosure court. I don’t know which would be worse.
For every judge who gets it right, it seems there’s another judge who’s getting it wrong, and badly so.
So what’s the big deal?
This order is especially bad for two reasons. (If you don’t want a review of court rules, just skip this part.) Rule 1.440 says that the Court has to give fair notice to all the parties before setting a matter for trial—and that the Court cannot set a trial in any matter until all parties who have a right to answer the complaint have filed their answer, and the court has disposed of any motions that challenge the legal sufficiency of the complaint and any responses to it—that’s what the rule means when it says the case is “ready for trial.” The reason for the rule is that the parties don’t completely know what issues will be discussed at the trial until the complaint and the answer are in their final form, and will no longer be amended. Only those matters in the complaint and answer that are disputed are properly before the trial court.
That was the main issue in the Leeds case mentioned in the order: what issues will ultimately be heard at trial? Until the “pleadings are closed”—the complaint and answer are both filed with the court and no longer subject to being amended—there’s no way to know for sure.
But this judge doesn’t agree that he’s bound by the appellate courts, and doesn’t think that the banks have to give fair notice of the issues to be tried. And he thinks none of his colleagues care about that, either. Otherwise, how could he have written what he did?
Once is chance. Twice is a pattern.