Matt Weidner – Fighting With The American People

Posts Tagged ‘florida bar’

A constant source of frustration by members of the ethical and responsible foreclosure defense bar has been the perceived lack of support and attention this area of the law has been given by the established institutions like the Florida Bar. While we all acknowledge that the Bar has initiated many worthwhile programs and worked with other groups in response to the crisis, many believe that more must be done.  I see hopeful signs that the Bar is ready to do much more.

I believe the foreclosure crisis presents the single greatest opportunity the Bar has had in generations to show the general public the very real value ethical and responsible attorneys provide for our communities. The interaction I receive when saving my neighbor’s homes, the respect I get when I’m doing my job properly before the court and the positive news reporting we’re getting all supports my belief that this effort of ethical and responsible foreclosure defense should be the primary focus of the Florida Bar at least for the immediate future.

We’ve all got a real opportunity coming up when we meet with both the leadership of the Florida Bar and the other members who are present this Thursday and Friday at the Boca Raton Resort and Club.  While our “War Room” session is Thursday from 5:00 p.m. – 8:00 p.m., please keep in mind that there will be a Bar sponsored CLE on Thursday from 12:00 – 5:00 (Although this is apparently sold out) and there will be a consumer-focused event, not affiliated with the Bar on Friday. (See Foreclosure Hamlet for more information.)

The “War Room” will be restricted to attorneys only and will be on a first come, first served basis. It is a private event not sponsored by or affiliated with the Bar in any way and we reserve the right to exclude any person not willing to provide an oath that they are engaged in foreclosure defense.  Having said that, we will reach out to members of the judiciary and Bar leadership and encourage them to participate in our discussions.  While the initial focus on this session will be to share war stories, we should all be keeping in mind that we have an obligation to the Bar, to the courts and to the communities we serve to try to come up with practical and real world solutions to this crisis.

As further evidence that The Bar is listening, I attach here an article that appears in this month’s edition of the Florida Bar Journal.  Read the article and let’s all get focused on creating solutions to the foreclosure crisis that the Bar, the bench and the legislature will deem worth paying attention to.

The Mortgage Foreclosure Crisis in Florida: A 21st Century Solution

by Kevin F. Jursinski
The current national mortgage foreclosure crisis has been felt the hardest in communities throughout Florida.¹ The crash in Florida’s real estate economy has been fueled by a staggering 400-plus percent increase in foreclosures during the last three years.² Consequently, the court systems in many jurisdictions have been overwhelmed and have incurred significant expenses and backlogs.³ It is estimated that the backlog of mortgage foreclosure cases in Florida results in added costs and lost property values of $9.9 billion dollars per year, as well as adversely affecting an estimated 120,219 permanent Florida jobs.⁴ This crisis is anticipated to get worse, and a proactive solution is necessary to address the problem.

This article will review the purpose of foreclosures, the current status of foreclosures in Florida, the current process for addressing foreclosures, approaches being considered, and a proposed solution for the 21st century.

Purpose of Foreclosure
A mortgage foreclosure is an equitable remedy that seeks equitable relief from the court to foreclose the interest of the mortgagor and any and all parties claiming by, through, or under such mortgagor to enable the mortgagee not only to foreclose its interests, but also for the mortgagee to acquire title to the collateral securing the mortgage loan.⁵ Nevertheless, the general rule in Florida is that a foreclosure must not be unconscionable or inequitable.⁶ Mortgagees have a duty to act in good faith and equitably with its contracting parties.⁷ This includes mitigation of damages and efforts to avoid exacerbating damages.⁸ A mortgagee should not recover for the consequences of a mortgagor’s act that are readily avoidable by the mortgagee.⁹ Similar to a standard breach of contract action, an underlying purpose of the mortgage foreclosure is to put the nonbreaching party in the same position it would have been in without the breach.¹⁰

Status of the Current Foreclosure Crisis and Problems Ahead
The current real estate crisis was fueled by subprime loan defaults.¹¹ A recent study indicates that the current foreclosure crisis will be followed by yet another influx of foreclosures, arising out of defaulting adjustable rate mortgage loans.¹² The projections are that Alternative A mortgages and Option ARM mortgage defaults will mirror or exceed subprime mortgage defaults, which will result in a “second wave” of residential mortgage foreclosures.¹³

A “third wave” of foreclosures¹⁴ will result from those people who decide to “strategically” allow a foreclosure to take place — essentially residential or commercial property owners who at one time had been able to make their mortgage payments but, due to a large reduction in the equity of their property, choose to “walk away” from their mortgage obligations. A recent study by Deutsche Bank indicates that by the year 2012, almost 50 percent of all residential properties nationwide will have a negative equity between the mortgage balance and the property values.¹⁵ Current studies show that over 60 percent of the homes in Florida to be below or at negative equity at this time.¹⁶ The Florida Foreclosure Task Force noted, “The flow of foreclosure cases and homes in the Florida pipeline to foreclosure filing shows only signs of increasing.”¹⁷

This large volume of mortgage defaults has created delays in our court system and has resulted in foreclosures now typically taking between 12 and 18 months or more to wend their way through the court system. When a borrower defaults on his or her mortgage, the borrower faces not only a foreclosure against the borrower’s property, but also a potential deficiency judgment after foreclosure. Where a deficiency exists, and in order to recover a deficiency, additional legal proceedings must be pursued following the foreclosure. In foreclosure actions generally, a deficiency or deficiency decree is determined by subtracting the fair market value¹⁸ of the subject property on the date the mortgagee obtains title as determined by the court from the total amount due the mortgagee, generally in the form of a final judgment.¹⁹ The burden of proving that fair market value is less than the debt is on the secured party.²⁰ A deficiency decree in a mortgage foreclosure action is left to sound judicial discretion,²¹ which may reduce the deficiency established if equitable considerations warrant such reduction, and if the court offers reasons for justifying its reductions.²²

Throughout the foreclosure process, a borrower is exposed to a larger deficiency amount due to the accrual of interest, taxes, insurance (current or “force placed”), as well as the cost of maintenance on the property due to such delays. For some, homeowner or condominium association dues may also accrue. Furthermore, the property may functionally depreciate since properties in foreclosure are not maintained to the same standard if the property was occupied²³ and may suffer from market depreciation during the extended foreclosure process due to a drop in residential home prices. Abandoned, foreclosed properties may likewise suffer devaluation by vandalism and theft. These factors result in the mortgage balance increasing and the value of the property decreasing, all contributing to a larger deficiency judgment exposure to the borrower, as well as real loss in collateral value to the lender.

In an apparent attempt to address the problem of statewide budgetary issues, the Florida Legislature increased filing fees for foreclosure actions.²⁴ While the clerk’s filing fee on most civil actions remains at $400, foreclosures are charged a higher rate in a new three-tier system: $400 for foreclosure actions up to $50,000; $905 for foreclosure actions more than $50,000 but less than $250,000; and $1,905 for foreclosure actions more than $250,000.²⁵ These increased filing fees substantially increase the exposure to a deficiency judgment by those least able to pay (i.e., those individuals who are the subjects of the foreclosure actions) and immediately increased litigation costs to the lender without any viable plan in place to utilize these additional funds to address the statewide foreclosure crisis.

Court clerks statewide opposed the increased filing fees because they are not earmarked to be utilized by the individual clerks of court who are charged with collecting such increased fees.²⁶ Instead, the increased filing fees are mandated to be collected and paid to the State of Florida, the Department of Revenue, and the State Court Trust Fund. These additional filing fee charges ultimately penalize and act as a surcharge on the foreclosed homeowner, adding to the debt that the homeowner has to repay to the lender, either in the form of a larger deficiency judgment or larger liability for debt forgiveness.²⁷

Programs Attempting to Address Foreclosure Issues
A number of current programs exist at the federal, state, and local levels to address the foreclosure crisis, but almost all of these programs are either outdated or have been less than effective in addressing the large number of foreclosures that exist today. For example, the federal government has promoted a mortgage modification program, “Making Home Affordable.”²⁸ This program has recently been updated, but has fallen far short of its initial projected expectations of modifying seven to nine million mortgages. As of the writing of this article, less than 200,000 mortgage modifications have been undertaken with a much smaller number of modifications actually completed nationwide, evidencing the ineffectiveness of this program and its failure to be a viable solution to the foreclosure crisis.²⁹ Despite being the hardest hit economy of all 50 states,³⁰ Florida is the 50th state per capita in receiving federal TARP money and assistance.³¹ Therefore, Florida must look at correcting its own foreclosure procedures and not look to federal intervention or assistance to “bail out” Florida from the foreclosure crisis.

Florida’s Chief Financial Officer Alex Sink sponsored a series of statewide seminars to provide educational opportunities and information to those affected borrowers.³² In addition, Gov. Charlie Crist formed a foreclosure task force, “H.O.P.E.,” which studied the problems and identified some of the issues, but it is not clear if any of these recommendations have been implemented.³³ Thus far, neither of these programs has matured into a viable means for addressing the foreclosure dilemma.

A number of jurisdictions in Florida have attempted to address the mortgage foreclosure problem with only minimal success. Some jurisdictions have imposed restrictions on foreclosures, required certain procedures be undertaken by the lender, and, in some progressive jurisdictions, the courts have been encouraging mediations of foreclosure cases.³⁴ In Lee County, the court created a program known as the “Rocket Docket,” an expedited court procedure enabling up to 500 foreclosure cases to be heard in a single day by a single judge. The impact of this procedure has been questioned by The Wall Street Journal³⁵ and has been the subject of a television exposé on TRU-TV. None of these local court programs has proven to be the viable answer to the foreclosure problem.

The Florida Supreme Court has created the “Task Force on Residential Mortgage Foreclosure Cases.”³⁶ The foreclosure task force has made suggestions to protect the rights of homeowners and lenders and to ease the burden on the courts, pursuant to its August 17, 2009, report.³⁷ The report identified and emphasized a need to have a uniform statewide mediation program implemented as one suggested solution. On December 28, 2009, the Florida Supreme Court issued an administrative order requiring mediation for foreclosure of residential properties.³⁸

The Florida Bar has been proactive in developing a program to provide legal assistance for those homeowners who may not be able to qualify and pay for legal assistance. This program is known as F.A.S.H. (Florida Attorneys Saving Homes) and has been instrumental in helping many homeowners. Unfortunately, due to the vast number of foreclosures, F.A.S.H. has not made much of an impact statewide.³⁹

Some lenders have created their own programs to address the mortgage default of borrowers and foreclosures on their residential loans. Due to slow development and implementation of such programs, and hampered by the vast number of defaults facing each lender, both homeowners and governmental offices have been critical of the pace of the lender response.⁴⁰

All of the above programs still require cooperation of the lender, and all take time. Moreover, none of these programs affirmatively address the time or costs that necessarily accrue by doing it the way that it has always been done. While stare decisis is an important doctrine, today’s economic situation mandates a fresh look and a new solution. The real issue is how to effectively bring the borrower and lender together to efficiently resolve a mortgage foreclosure dispute.

Contrary to many schools of thought promoted by certain jurists and lender advocates who believe that “once a mortgage is in default, there is no defense, nor is there anything to mediate,” other viable options exist, including, but not limited to:

• Modification of the mortgage interest rate or principal, resulting in a reduction of the mortgage payment.

• Short sale of the property with either release of the mortgage with waiver of liability for any deficiency against the borrower or a structured payment arrangement for an agreed upon deficiency.

• Stipulation for conveyance of a deed to the lender and release of borrower from any deficiency or structured payment arrangement for an agreed upon deficiency.

• Stipulation as to entry of an agreed upon foreclosure judgment with a release of liability against the borrower for any deficiency or a structured payment arrangement for an agreed upon deficiency.

A positive and proactive solution must be found to effectively deal with the foreclosure crisis that currently grips Florida, and based upon all projections, will continue to wreak havoc on our real estate marketplace. The weaknesses in our existing judicial foreclosure process have come to light given the vast amount of foreclosures currently in the system.

Deed in Reduction — A New Paradigm for the 21st Century
Given the “perfect storm” of flat or declining real estate prices coupled with the long delays to process foreclosures in the court system, borrowers are faced with a significant exposure to larger deficiency judgments or tax liability from forgiveness of debt. In such circumstances, the borrower should look to minimize and mitigate their exposure to such damages. Lenders should likewise be motivated to reduce the accruing loss in value of its collateral. Barring viable defenses to the enforceability of the mortgage and/or note, one solution is for the borrower to tender an unconditional fee simple deed to the lender. This unconditional fee simple deed and the tender process have been labeled by this author as “deed in reduction” to reflect the fact that the unconditional fee simple deed is delivered to reduce the damages of both the borrower and lender. Unlike a “deed in lieu of foreclosure” that requires the lender to waive and relinquish all claims against the borrower, the tender of an unconditional fee simple deed is provided to the lender without any conditions or restrictions. The lender accepts the deed, but retains all rights and remedies that the lender may have against the borrower for a deficiency.

Rather than a protracted and delayed foreclosure process, the borrower can take a proactive and positive approach by tendering the deed in reduction to the lender to reduce deficiency judgment damages. When the first mortgage is the only lien on the property, the mortgage is in default, and the borrower will not be able to continue payments on an enforceable mortgage, a borrower can tender a deed in reduction to the property without merger of the mortgage and without a waiver of the lender’s mortgage, nor a waiver of any deficiency claim against the borrower by expressing such intent in the deed.⁴¹ By transferring a deed in reduction to the lender, the borrower enables the lender to:

• Recapture the lender’s collateral immediately without any further court costs or litigation expense.

• Avoid the expense of court delays.

• Avoid the increased damages that accrue during the long foreclosure process, including interest accrual, attorneys’ fees, court costs, taxes, and other related expenses.

• Open the possibility that the lender in such a situation may elect to modify the mortgage.

At the time the lender receives the deed in reduction, the lender has a number of options, including acceptance of the deed without waiver of its deficiency claim or refusal of acceptance of the deed and initiation of a foreclosure action. Under long standing Florida law, the delivery of a deed by a grantor and the acceptance by a grantee are essential requirements to convey effective title and, as such, a lender is not required to accept a deed without the lender’s consent and acceptance.⁴² When a deed in reduction is tendered and accepted by the lender, the lender may still pursue any remedies it may have for the deficiency and propose its own resolutions to the default, including a mortgage modification.

The platform to address foreclosure disputes, whether in the deed in reduction format or other approaches, is the implementation of a suggested statewide program encouraging the lender and borrower to submit to mediation,⁴³ an efficient procedure to deal with the foreclosures and deficiencies rather than clogging the court system with another foreclosure. As no case law or statute currently requires a lender to accept an unconditional fee simple tender of deed or to voluntarily submit to mediation, both the borrower and lender would have to agree to adopt this procedure as a positive and proactive solution.

Proposed Legislation for Deed in Reduction
The author has proposed legislation to:

• Allow for the borrower to voluntarily elect to tender a deed in reduction to the lender when such viable option exists.

• Require the lender to accept the deed in reduction or propose a modification of the mortgage or other acceptable loan workout to seller and buyer. If no modification or loan workout is proposed or acceptable, the lender would be required to accept marketable title to the property, subject only to the lender’s first mortgage, which mortgage would not merge with the deed.⁴⁴

• Require the borrower and lender in such a situation to engage in a mandatory two-step alternate dispute resolution procedure: 1) The first step is nonbinding mediation to address any potential deficiency decree or loan workout opportunity based upon the difference in the value of the property on the date of the tender of the deed in reduction and the amount of the mortgage as of the date of the tender of the deed in reduction; and 2) if the mediation is not successful (mediation is estimated to be successful in approximately 73 percent of foreclosure cases),⁴⁵ the second and final step would be that the borrower and lender promptly submit to binding arbitration on the issue of the amount of the deficiency owed by the borrower to the lender.

The expedited procedure under the proposed deed in reduction legislation would result in the following:

• The lender immediately would recapture its collateral (the property) with no significant litigation expense, attorneys’ fees, or court costs, nor would it be in a position to propose a mortgage modification or loan workout.

• The carrying costs — including interest, taxes, insurance, maintenance, court costs, and attorneys’ fees — would be greatly reduced and, in some cases, eliminated.

• Market and functional depreciation would be minimized.

• The lender would reserve its rights to pursue a deficiency decree which would be addressed by prompt mediation, or, if mediation is not successful, binding arbitration.

• There would be an elimination of a foreclosure action, elimination of the current inherent delay in the foreclosure process with attendant cost savings for both the lender and borrower, as well as relieving overcrowded court dockets of yet another foreclosure suit.

The tender of a deed in reduction can be a win-win-win scenario for the lender, borrower, and court system. However, the legislation and authority to implement such a program is not in place. As such, borrowers must request the lenders to voluntarily agree to mediation or file a motion to compel mediation. The suggested legislation contains a mediation component, which is one of the recommendations of the foreclosure task force.

Refusal of Lender to Accept Deed Raises Equitable Defenses for the Borrower
If a lender refuses to accept a deed in reduction, the lender may take action to initiate a foreclosure suit, sue on the note, or take any other action the lender deems appropriate pursuant to the loan documentation. However, if a lender refuses to accept a deed in reduction, an equitable argument can be advanced by the borrower that the lender should not be entitled to recover a deficiency decree for the additional interest accrued, attorneys’ fees, court costs, and other expenses related to the subject property incurred during the lengthy foreclosure process. These fees and costs continue to accrue as a result of the lender’s refusal to accept the deed in reduction. A borrower can argue that the lender could have avoided such foreclosure and resultant fees, costs, and expenses by simply accepting such a deed and recapturing its collateral with a complete retention of the lender’s deficiency claim and nonmerger of its mortgage and, thereby, making a good faith effort to mitigate damages.

As noted earlier, a mortgage foreclosure is an equitable remedy in which a mortgagee seeks equitable relief from the court to foreclose the interest of the mortgagor and all subordinate interests to allow the mortgagee to acquire title to its collateral and pursue a claim for deficiency if one exists.⁴⁶ The mortgagor, who tenders a deed in reduction, can assert that the lender should not be entitled to recover damages in the form of a deficiency judgment for the difference between the value of the property on the date of the foreclosure sale and the amount of the mortgage as of such foreclosure sale.⁴⁷ Rather, the mortgagor can raise an equitable defense that the lender should be limited to recapture only the difference in value between the value of the property on the date that the deed in reduction is tendered and the then existing amount of the mortgage, since any other recovery would allow the lender to recover damages that would be unnecessary under the circumstances.

The defense to be raised by the mortgagor, if the mortgagee refuses to accept a deed in reduction and initiates a foreclosure action, is that the mortgagee in such foreclosure action has the duty to act equitably. Further, the lender, as mortgagee, has the duty to minimize and mitigate damages.⁴⁸ The starting point for these defenses is that the general rule in Florida is that a foreclosure procedure must not be unconscionable or inequitable.⁴⁹

The lender, as mortgagee, has a duty to act in good faith and equitably with its contracting party.⁵⁰ This includes the duty of the mortgagee to take reasonable steps to prevent or mitigate damages resulting from the default by the mortgagor.⁵¹ It can be argued that such duty to mitigate damages also includes a mortgagee timely accepting the deed in reduction of its collateral (which originally was pledged for its debt), without any liens, mortgages, or encumbrances thereon, save and except the mortgagee’s own mortgage and with a reservation of the right to pursue a deficiency, thereby avoiding additional damages.⁵² As such, a mortgagee should not recover damages resulting from its own acts, which damages may be readily avoidable, such as the anticipated consequences of the continued accrual of interest, costs, attorneys’ fees, taxes, and insurance, as well as functional and market depreciation that occurs during a drawn-out foreclosure process, all of which can be eliminated by acceptance of a deed in reduction to reduce a prospective deficiency amount.

The principle of avoidable consequences is that one seeking damages (in this case the mortgagee seeking a deficiency judgment) as a result of another’s actions cannot recover those damages that he or she could have avoided by the exercise of reasonable care. Failure to act equitably and in an appropriate manner is not in keeping with the concept of avoidable consequences.⁵³

The effect of a conveyance of a deed in reduction is to place the mortgagee in title to the subject property free and clear of all liens except for the existing first mortgage and with a reservation of all of the lender’s rights. By refusing the deed in reduction and electing to seek foreclosure, the lender will not realize any greater benefit than what it can already receive by accepting the deed in reduction. The refusal to accept a deed in reduction may also subject the property to waste during the foreclosure process. A court of equity has the inherent power to address issues of waste.⁵⁴

A deficiency decree in a mortgage foreclosure action is left to sound judicial discretion.⁵⁵ The court may reduce the deficiency established if equitable considerations warrant such reduction and if the court offers reasons for justifying its reductions.⁵⁶ A deed in reduction tendered to the lender and refusal thereof by the mortgagee resulting in the accrual of unnecessary damages may be argued by the mortgagor as a reason to justify a reduction of a claimed deficiency.

The Second Mortgage Dilemma
In certain instances, the borrower is faced with a second mortgage on the property. In such circumstances, the borrower cannot mitigate its damages by tendering true marketable title to the first mortgagee without the release of the second mortgage.

In the event of a second mortgage — and in the event equity exists for the second mortgagee (the value of the property exceeding the amount of the first mortgage) — the borrower can seek to tender a deed in reduction to the second mortgagee. If the second mortgagee refuses to accept the deed, then the borrower would be in a position to request the second mortgagee to elect its right of redemption. The request to exercise the equity of redemption would be for the second mortgagee to pay off the first mortgage to protect its second mortgage equity position.⁵⁷ In a case where no equity exists for the second mortgagee (the value of the property is equal to or less than the first mortgage), the mortgagor can file a motion to request the second mortgagee release its claim against the subject property, but maintain its claim on the mortgage note because there is no effective collateral security value for the second mortgage.

In such a situation, by releasing its second mortgage, the second mortgagee would still be able to pursue its claims on its note. In the event a second mortgagee refuses to exercise its equity of redemption — if one exists — or alternatively fails to release the second mortgage if no effective collateral value exists for the second mortgagee, the mortgagor’s argument could be asserted that the second mortgagee cannot clog the system and prevent the deed in reduction tender to the first mortgagee by refusing to release its second mortgage against the subject property. The borrower’s argument may be that the actions of the second mortgagee under such circumstances would be to prevent mitigation of damages by the mortgagor by directly increasing the overall exposure to the mortgagor and increasing damages to the first mortgagee by inherent delays caused by the actions or inactions of the second mortgagee.

Conclusion
Due to the mortgage foreclosure crisis affecting our state, the current mortgage foreclosure procedures in Florida and the prior legal framework have become outdated, and there is a need for an alternative solution. Given the vast amounts of foreclosures and the adversarial nature of a foreclosure default, oftentimes the lender and borrower do not have the time, inclination, or — in the cases of pro se borrowers — the knowledge to engage in such effective mitigation procedures. A proactive and positive format of engaging in prompt, efficient resolution of a mortgage default to minimize and mitigate damages for all parties, utilizing a deed in reduction followed by an effective loss mitigation program of mediation (and, if necessary, arbitration) is an efficient way to minimize and mitigate damages.

Short of new legislation (such as suggested by the author’s proposed legislation for deed in reduction) that could offer borrowers an alternative to the existing method of foreclosure and streamline the foreclosure process, we must look to the courts in Florida for guidance. As an alternative to the current drawn-out foreclosure process and absent new legislation, Florida courts should consider adopting uniform statewide guidelines to encourage mediation, or, at the very least, allow cases involving foreclosures to proceed to mediation, whether they are residential or commercial. Mediation is appropriate in instances when the borrower can make a prima facie representation to the court that the borrower is in good faith interested in resolving the foreclosure action in an expeditious manner. Mediation opens up a whole host of options to successfully resolve a mortgage dispute.

In foreclosure actions, our courts should recognize legitimate efforts made by a borrower to minimize and mitigate damages and consider such efforts as a basis to reduce any claimed deficiency sought against a borrower in a foreclosure action. Such proactive efforts by a borrower will not only minimize damages for the borrower and lender, but also directly relieve the backlog in our courts.

Hyperlink to the full article can be found here.

Scridb filter

The following is a touching, sad and brilliantly-written essay provided to me by a client.  From time to time, we lose sight of the fact that foreclosure is not just some abstract court case.  There are real losers here.  When a defendant loses, he’s your neighbor and when justice is ignored and he loses, he loses not just his home, but his dignity, his well-being, his trust in government and his place in this world.  Some of our judges, in the rush to push things along, probably have lost sight of the concepts of equality and courts of equity and fundamental fairness.  They are tired, they are weary, they are overworked.  That being said, I believe that if judges across this state read this article below….if advocates and homeowners across the country read this article, we would all take a step back from the foreclosure sale docket and develop a new way to deal with this Wall Street Crisis that has infected our courtrooms.

Take the time to read this article slowly….please let me know if it moves you as much as it moved me.

Foreclosure proceeding and the mockery of justice

My opinion is that in the foreclosure arena, our justice system is badly broken. Many Courtrooms have simply become nothing more than “defendant slaughterhouses”. The purpose of this article is to document what is occurring every day in courtrooms across our nation and to show how defendants, especially pro se defendants in mortgage foreclosure actions, are facing extreme bias and therefore a travesty of justice that is severely impairing their Constitutional rights to due process, and no one seems to care.

To the Judges and attorneys that are exceptions to the abomination I am about to describe, I apologize in advance. While there are Judges and attorneys that still have a deep respect for the law, ethics, and the principles of unbiased justice, unfortunately they are becoming few and far between, especially on the plaintiff’s team. In my opinion, many of the “Officers of the Court” representing the plaintiffs, demonstrate a clear disrespect and even contempt for the law, justice, the Constitutional rights of the defendant, the Florida Rules of Civil Procedure, and the burden of proof on the plaintiff.  They often violate the oath they took when they were admitted to the Florida Bar. They operate on the premise that the “ends justify the means” and their version of “justice” is pre-determined , regardless of the law, the Florida Rules of Civil Procedure, the actual evidence, the facts, Court rulings, DCA rulings, etc. They operate with an air of arrogance as if they are above the law and that Judges will grant them their wishes of pre-determined “justice” at their will and beckon call. Every single day, in courtrooms across the fruited plain, justice is being made a mockery of and people are losing their homes, many times based on criminal fraud and perjury committed by fraudsters that are “Officers of the Court” and their co-conspirators, the plaintiffs who willing manufacture the fraudulent documents they need to perpetuate their fraud. Judges, who choose to ignore this fraud, become their partners in crime in this travesty of justice. While there are some Judges that seem to be waking up, unfortunately far too many are still “turning a blind eye” to many of the fraudsters’ shenanigans.

To those of you that think I am mistaken or overly harsh I reply. On several occasions I have spoken with quite a few defense attorneys, as well as other defendants, and in virtual unison, the majority all express the same sentiments and concern. Some of the things I will address in this article, defense attorneys share with me in confidence. They are in a difficult situation. Some of the things I am about to say, they would like to say, however the reality is that they are inhibited since they will probably have to face the same Judge in other cases. I am not restricted in that manner. Being pro se, this is my one shot and everything is on the line. I only get one go around and I will speak my mind. The elephants in the rooms have been ignored and tiptoed around for too long.

While defense attorneys face the same obstacles I have, in attempting to defend their clients, the problems are magnified for the pro se defendant. Judges and the Officers of the Court seem to have little respect for a pro se defendant and seem to think and act like they can walk all over them, almost acting as if they are not even there. The plaintiffs’ attorneys are so arrogant that I have personally witnessed them bringing pre-prepared orders to a hearing on a defendant’s motions to dismiss, ready for the Judge to sign, with the plaintiff prevailing. This reeks of “pre-determined” justice. In these hearing, the plaintiff’s counsel often does not even have to argue their case or refute anything the defendant presents. They seem to “know” that the Judge will summarily rule in the plaintiff’s favor regardless of the defendant’s arguments or the facts and the law. What is this all about? Do they “know” something that the defendant doesn’t? Something smells about this.

I think it is safe to say that no defendant in their right mind wants to defend a foreclosure case pro se. Every defendant would love to have a legal “dream team” defending their case. The harsh reality is that many pro se defendants simply have no other choice than attempt to represent themselves for obvious financial reasons. This is the “elephant in the room” and the Judges, the plaintiffs, and the foreclosure mill attorneys, are well aware of this. I maintain that this is an enabling factor, permitting Judges, plaintiffs, and foreclosure mill fraudsters to ignore the law, ignore the Florida Rules of Civil Procedure, and “manufacture” and file fraudulent, legally insufficient, false assignments, affidavits, notes, and other documents, committing fraud on the Court in the process, virtually without fear of sanction or reprisal. This same “gang of co-conspirators” is aware that the defendant, especially one that is pro se, is very unlikely to have the resources or the wherewithal to appeal their case when their home is taken from them and they are forced to move out, many times based on intentional fraud on the Court. Even when there are valid legal reasons for appeal, the conspirators know that the probability of an appeal is very unlikely. They count on this as they openly perpetrate their fraud, denying the defendant their Constitutional rights to due process along the way.

Most foreclosures in Florida are prosecuted through several large “foreclosure mills” such at the Florida Default Law Group, P.L., David J. Sterns, P.A., Marshall C. Watson, P.A., and Shapiro. These firms often follow a “template” with a very high priority on either getting the Clerk of the Court to default the defendant, and if unsuccessful in that endeavor, in rushing to get the Court to grant a summary judgment against the defendant. Very low on their priority is actually litigating the cases on issues of law and fact and allowing the defendant due process.

In their rush to default the defendant or gain a summary judgment, in their minds, the “end” justifies the “means”. Attorneys in these foreclosure mills virtually ignore the Florida Rules of Civil Procedure all along the way, and count on the Judges to ignore this reality. They will stop at nothing. They will lie to the Court, manufacture and file false documents and affidavits, file documents with the Court without noticing the defendant, and use every other trick in the book to deny the defendant due process in defending himself. They will refuse to litigate the case, refuse to answer requests for admission, refuse to produce documents, refuse to answer interrogatives, engage in ex parte communications with the Court, acting as if the defendant is not even there and has no right to be heard or to due process. Even when these egregious violations of law and the Florida Rules of Civil Procedure, by the plaintiffs and their counsel, are pointed out to the Court, the Judges often turn a blind eye towards this unethical conduct, intentional fraud on the Court, perjury, and even criminal acts, perpetuated in an attempt to deny the defendant due process.

On the other hand, the defendant is held to very strict standards and is virtually helpless as these “Officers of the Court” from the foreclosure mills perpetrate their tricks, deceit, and fraud on the defendant and the Courts. Just let a defendant miss a deadline for filing a response and see what happens. On the other hand, the fraudsters, bearing the title of “Officers of the Court”, can ignore the rules and miss deadlines at will without penalty. Judges regularly allow the fraudsters to correct improper and legally deficient filings, to ignore the Florida Rules of Civil Procedure, to ignore requests for production, and allow responses to requests for admissions submitted months and months after the deadline for a response has passed, to name just a few of the travesties of justice being perpetrated. In hearings on a single motion to dismiss, for example a motion to dismiss for lack of proper notice, Judges are often ignoring the evidence and refusing to grant the defendant’s request for dismissal as well as issuing a “blanket dismissal” of all of the defendant’s pending and unheard motions, without a hearing on the individual motions. It is vey clear that the “end” is an attempt to clear the path to granting summary judgment without due process and in the eyes of the fraudsters, the “end justifies the means”. The fraudsters do not want a case to go to trial because they lack the evidence to back up their lies. They depend instead on fraudulent, manufactured evidence to gain a summary judgment.  Not only should these fraudsters be harshly sanctioned, many of them should be behind bars.

The only hope and prayer a pro se defendant has, is to incur the expense of having a Court Reporter at every hearing. By having a Court Reporter present there is at least a chance that some semblance of justice will be maintained since the hearing is on the record and the proceedings can be reviewed on appeal. I maintain that it is a virtual death wish, especially for a pro se defendant, to go to a hearing without a Court Reporter present. Many of the rulings and orders coming out of the pre-trial hearings are valid grounds for appeal but remember, the fraudsters are aware that that the defendant probably does not have the financial resources or the wherewithal to appeal the case. This is especially true after their home has been virtually stolen from them without due process or only a “lip service” version of due process, and they have been evicted from their home. I maintain that this is part of their strategy. Since the majority of homeowners will not appeal an adverse ruling for financial and other reasons, the fraudsters know they have nothing to lose. They know that if the homeowner, even with valid grounds for appeal, throws in the towel, case closed, they win, end of story. In the unlikely case that the homeowner does appeal and by chance is successful, then the worse case scenario they are likely to face is that the case will be reprimanded back for further proceedings. In other words, they would be right where they were. They play the odds. Why litigate and allow due process to run its course when the odds are in your favor.

At this point, less you doubt my claims, let me reassure you that I speak from a position of first hand experience. In addition to defending myself in two foreclosure cases, I have researched many foreclosure cases before the Courts. Based on my research, I feel that in 80 to 90% of the cases before the Court, fraudulent pleading and evidence is involved. A stark reality of the foreclosure process is that upwards of 80% to 90% or higher, of those that face foreclosure simply walk away, not putting forth any defense. The fraudsters know this and count on it. Those 10% to 20% or so that attempt a defense face an uphill battle against the “beast” in a judicial process that is heavily biased toward the plaintiff and the fraudsters representing them. This is especially so in the case of a pro se defendant.

When the pro se defendant attempts a defense, it is almost like being in the Super Bowl, down 13 points with less than two minutes to go and the plaintiff’s team on your one-yard line with a first and goal. Winning or even getting the benefit of due process is seemingly a virtual impossibility. Remember, the pro se defendant often has little resources, and must learn both the law, the Florida Rules of Civil Procedure, the defense, and the offense, and the execute an efficient game plan while in the process of learning and fending off the “tricks”,  “deception”, and often blatant fraud, perpetuated by the plaintiffs and the fraudsters, also known as “Officers of the Court”, that represent them. On top of all that, the pro se defendant, and even those represented by counsel, must hope and pray that the Judge will be fair and unbiased, intervening and disallowing fraud, requiring adherence to the Florida Rules of Civil Procedure, as well as objectively insuring a level playing field and allowing due process to run its course. Oh yea, did I forget to mention making a living and putting food on the table at the same time? It is a daunting task, I know, I have been there and am still living and experiencing the nightmare. Let me tell you about a couple of these proceedings and hearings that will illustrate what I am referring to.

J.P. Morgan sued me on a first mortgage. They filed the action on December 18, 2008. I was served on January 5, 2009. The foreclosure mill representing J.P. Morgan was the Florida Default Law Group, P.L. I responded to the complaint within the allotted time, filing 5 motions to dismiss on January 23, 2009. I properly noticed the Florida Default Law Group, P.L of these five motions with copies via certified mail and I have a return receipt showing they received the filings. The Court docket reflected my filings and the filings were in the physical file. That did not stop the fraudsters however. Without noticing me, on April 14, 2009 the fraudsters filed a Motion for Default, attesting in their filing that I had filed no response with the Court and that they had received no papers from me. What a bunch of liars. Remember, I have a certified mail receipts showing that they received my filings. I guess it is “acceptable” for “Officers of the Court to lie to the Court. Luckily, the Clerk checked the file and denied the liars and fraudster’s motion for default.

The first hearing in the case was on June 30, 2009, a scheduled 5-minute hearing on my MOTION TO DISMISS COMPLAINT BECAUSE PLAINTIFF FAILED TO STATE A CAUSE OF ACTION. I had a Court Reporter present at the hearing so the hearing is on the record. When the plaintiff filed the case, they did not attach a copy of the note or any assignments to the initial complaint; they only attached a copy of the alleged mortgage. Within the four corners of their pleading, it was deficient under the Florida Rules of Civil Procedure, statute, and case law, and did not show in any way that the plaintiff had standing. The plaintiff was not the lender on the copy of the mortgage filed with the complaint.

The hearing was in the Judges’ chambers, rather than in the open Courtroom. My impression, based on how things transpired, was that it took the form of a sort of pre-trial discussion or conference, rather than a hearing on merits of my motion. When I attempted to present my argument in the 2 and ½ minutes that I expected to be allotted, the Judge attempted to cut me off. I requested that I be allowed to present my arguments and facts and the Judge then allowed me to present most of my argument. The opposing counsel for the plaintiff offered no argument or opposition to the points I made. He sat there like a bump on a log. Instead, the Judge addressed me and suggested that the plaintiff’s failure to attach a copy of the alleged note and all assignments to the initial pleading, was not of concern, that those “things would all come out later as the proceeding progressed”. When I attempted to provide the Judge with case law from the DCA that supported my argument for dismissal, his response was that “those kinds of decisions are for the Appellate Courts”. In addition, he then brought up my other four motions to dismiss.  I think he was trying to dismiss them all without a hearing. I reminded him that the hearing was not on those motions, that it was scheduled only on this one motion and the discussion ended. I am grateful that I had a Court reporter present. In the end, the Judge denied my MOTION TO DISMISS COMPLAINT BECAUSE PLAINTIFF FAILED TO STATE A CAUSE OF ACTION. He ordered the plaintiff to file a copy of the note and assignment within 10 days. They complied and filed an assignment that is false on its face, obviously a fraudulent manufactured document. In addition, though fraudulent, the assignment is dated after the date of filing of the complaint, proving they did not have standing when they filed the action.

In the hearing, and on the record, I noted that opposing counsel had not noticed me on several things they had filed with the Court, and reaching them for communication was difficult. I requested the opportunity to review the final order before it was submitted to the Court. The Judge concurred that I must be allowed to review the order before it was submitted to the Court and instructed opposing counsel to provide the proposed order for my review before submitting it to the Court. They did not comply with the Judge’s instruction. They never supplied the proposed order for my review and instead submitted it to the Court, to a different Judge who was not even present at the hearing, who then signed the order, which contained things that I objected to. One thing was that it gave the impression that I had not filed an answer to the complaint which I already had, as clearly reflected on the docket, and which I also informed the Court of on the record in the hearing. I then filed a motion for a rehearing in opposition to the order, which the Judge then denied.

This hearing left me somewhat puzzled for the above reasons and as the proceedings seemed to be different from the many cases that I have reviewed. I felt, that the Judge, rather than opposing counsel, argued the plaintiff’s position for them. The thought entered my mind that he sounded like counsel for the plaintiff. Motions to dismiss are valid filing when there are issues regarding cause of action, standing, notice etc. The Florida Rules of Civil Procedure, state and federal statutes, and case law all confirm that the rules and the law must be followed in filing a complaint and that when they are not, they are valid reasons to dismiss. The Judge ignored all of this.

I left the hearing with the feeling that rather than have my arguments heard and ruled on based on their merits and the law at the trial Court level, I may have to depend on an appeal.  If I should lose and be evicted from my home, this might make my initial arguments somewhat moot, since my family would be displaced and my home sold at auction. It was very clear to me that the playing field was not level and the burden of proof on the plaintiff was simply, “we say it is so, so it’s true.”

The next hearing on was on September 30, 2009, a  scheduled 5 minute hearing, on my MOTION TO DISMISS COMPLAINT  FOR LACK OF PROPER NOTICE, the proceedings took a similar track.  I had a Court Reporter present so the hearing is on the record.

Once again it was held in the Judge’s chambers, rather than in the open courtroom. The proceedings were like a Déjà vu of the first hearing. Once again it took the form of a sort of pre-trial discussion or conference, rather than a hearing on the merits of my motion. Just as in the first hearing, when I attempted to present my argument in the 2 and ½ minutes I expected to be allotted, the Judge again attempted to cut me off. I requested that he allow me the opportunity to present my case and was able to present most of my argument. Once again, the opposing counsel for the plaintiff offered no argument or opposition to the points I made. Instead, the Judge again then addressed me and told me that my concerns “may be valid” but that “he would not dismiss this case on a motion to dismiss because the appellate Court would” “throw it right back to him”. Again, it appeared that my argument against the plaintiff’s failure to notice me that they were accelerating the alleged note and mortgage, per the terms of the mortgage was not of concern regarding my motion to dismiss. When I attempted to provide the Judge with case law from the DCA that supported my argument, his response left me with the impression that I might have to depend on appeal at the DCA level, rather than at the trial Court level should I lose and be displaced from my home. One interesting point is that the DCA case I handed him was a DCA case in which the DCA reversed his prior ruling in a case, refusing to grant the defendant’ motion for the very reasons I was arguing that very day. In other words, the case reversed him for his ruling in a prior case as he was ruling that very day on my motion. Can you believe that? He ignored the case and ruled against me anyway.

In addition, the Judge then brought up my other motions to dismiss and dismissed all of them without a hearing. In the end, the Judge denied my motion to dismiss and all other outstanding motions to dismiss to that date, including the ones that were not yet heard. Maybe he was mad at me for showing him the case where the DCA had overruled him. Who knows?

Similar to the first hearing, as mentioned, I felt that the Judge rather than opposing counsel, argued the plaintiff’s position for them. Motions to dismiss are valid filing when there are issues regarding cause of action, standing, notice etc. The Florida Rules of Civil Procedure, state and federal statutes, and case law all confirm that the rules and the law must be followed in filing a complaint and that when they are not, they are valid reasons to dismiss.

As I left the hearing, I was more convinced than ever that rather than have my arguments ruled on based on their and the law at the trial Court level, I may have to depend on an appeal. Of course that might mean that I may evicted from my home, all making my initial arguments somewhat moot, if my family is displaced and my home is sold at auction.

Here is another thing. In this hearing, the Judge also ordered mediation. I attended the mediation and paid $240.00 for the “pleasure” of doing so. The mediation was a total joke. I was the only one prepared to mediate. The foreclosure mill sent to junior “fraudsters in training” to the mediation that had no idea regarding the issues in the case. The plaintiff was going to participate via telephone. The mediation was held at the foreclosure mill, the offices of the Florida Default Law Group, P.L.  The junior fraudsters could not even figure out how to operate the conference telephone. We wasted over 30 minutes until they finally gave up and we used a cell phone. The representative for the plaintiff had no ideas regarding the issues of the case. The representative for the plaintiff wasn’t there to mediate, the person just restated what they alleged I owed them. I attempted to negotiate but the person had no interest. I doubt that the person representing the plaintiff had full and complete settlement authority The plaintiff as not even aware of the second mortgage case they had filed. In the end, the plaintiff agreed to send me some “loan modification documents” and to consolidate the cases. They did neither in the coming months. As we left the mediation, the mediator told me that I was the only one prepared to mediate. As I mention I had the “pleasure” of paying $240.00  for this worthless dog and pony show, a pretend mediation just going through the motions with no real mediation, ordered by the Court.

I was forced to mediate with a plaintiff that I do not feel owns the alleged note, does not have standing to bring this action, has filed a false assignment with the Court in an attempt to perfect the chain of title, and has not properly accelerated the alleged note. I have questioned, in motions before the Court and in affidavits that I have filed with the Court, the validity of the copy of the alleged note and the validity of my alleged signature on the copy of the note they supplied, as well as the validity of the alleged assignment. I have noted to the Court on the record that there are others that claim ownership to the alleged note, which conflicts with statements and filings with the Court by the plaintiff. In fact, the forms that opposing counsel has given me requesting detailed financial information prior to the mediation, confirm on their face that the plaintiff is not the owner of the alleged note as affirmed in their initial complaint. While there are many other valid issues of fact and law that have not been resolved, I was ordered to mediate with the plaintiff that I believe is not even the owner of the note and does not have standing to bring this action. There are other issues as well but I will leave explaining them at another time.

One thing that really bothers me is that while I have complied with the Florida Rules of Civil Procedure in attempting to defend myself in this instant action, the plaintiff has not. They have not proved they even have standing to bring this action, or are the holder in due course, or even the actual owner of the note.  They have refused to litigate the case, relying instead on attempts to trick the Court into defaulting me or giving them a summary judgment, which they are not entitled to by statute, under case law, or under the Florida Rules of Civil Procedure. Plaintiff’s counsel has filed false affidavits, a bogus assignment that is false on its face, prepared after the filing of the first mortgage action, in an attempt to rush the case through the Court and deny me due process. They have supplied statements and documents that, on their face, conflict with previous statements they have made or documents they have filed. They have refused to litigate this case, they have refused to provide anything I have requested and need to defend myself in my request for production. They have failed to respond to my answer or avoid or refute my numerous affirmative defenses. They have admitted things which are fatal to their action or even standing to bring this action.

Where is the due process in all of this? Where is the equity? Where is the justification for allowing this case to go forward without these issues being resolved?

If one studies the case law from around the country and reads the news regarding foreclosure proceedings, they will find that there is a history of improper filings, sloppy paperwork, and even intention fraud on the part of lenders that are seeking to foreclose, as well on the part of the attorneys representing them. New evidence of this fraud, often ignored by the Courts is coming to light daily. Some Judges are beginning to get it. Unfortunately, many of these Judges are out of state, in New York, Ohio, and Massachusetts. When will the majority of Judges in Florida wake up to what is going on?

I realize that I am pro se but I do not think that means that I am not entitled to due process or that I leave my Constitutional rights at the Courthouse steps. All I ask for is a level playing field and that all parties are required to follow the rules.

On September 14, 2009 J. P. Morgan filed a second action against me. This action was for an equity line that was an extension of the first mortgage through an open-end feature in the original loan. This open-end equity loan was secured by the same mortgage against the property. The foreclosure mill they used was Albertelli Law.  I guess J.P. Morgan was unhappy with the slow progress by the Florida Default Law Group, P.L. in the first mortgage action so they chose another foreclosure mill for this action.  I was served with the action on September 22, 2009. This case was with a different Judge. I responded to the complaint within the allotted time, filing a Motion for an expansion of time to respond to the complaint on October 9, 2009.  I then filed.3 Motions, and Answer with affirmative defenses, an Affidavit, and a Request for Production. I noticed the Albertelli Law on all of these filings via certified mail and I have a return receipt showing they received the filings. The Court docket reflected my filings and the filings were in the physical file. That did not stop the fraudsters however. Without noticing me, on November 23, 2009 the fraudsters filed a Motion for Default, attesting in their filing that I had filed no response with the Court and that they had received no papers from me. What a bunch of liars. Remember, I have a certified mail receipt showing that they received my filings. I guess it is “acceptable” for “Officers of the Court to lie to the Court. Luckily, the Clerk checked the file and denied the liars and fraudster’s motion for default.

The first hearing in the case was on April 20, 2010, a scheduled 5 minute hearing on my MOTION TO DISMISS COMPLAINT BECAUSE OF LACK OF PROPER NOTICE. I had a Court Reporter present at the hearing so the hearing is on the record. When the plaintiff filed the case, they had not noticed me that they were accelerating the note and giving me 30 days to cure the default prior to filing a foreclosure action as required by the terms of the mortgage.

As I mentioned, this action was before a different Judge, not the Judge that was presiding over the first mortgage suit. The hearing was held in the Judges’ chambers, rather than in the open Courtroom. I had a Court reporter present so the hearing is on the record. In the hearing, I presented my position asserting that the plaintiff did not comply with the terms of the mortgage in that they failed to send me an acceleration letter, accelerating the mortgage and giving me 30 days to cure the default, prior to filing the instant foreclosure action, as specified in paragraph 18 of the mortgage. I had also filed an affidavit affirming the fact that they had not complied with the terms of the mortgage and had not properly noticed me that they were accelerating the note and giving me 30 days to cure the default.

In the hearing, the Judge questioned the plaintiff’s counsel, asking them if they were able to provide any evidence or affidavit to refute my claim of their lack of properly accelerating the mortgage. They could offer no evidence except their “claim they did”. The plaintiff’s counsel tried to object that this was not an evidentiary hearing and therefore, their “claim that they did” should suffice. The Judge then gave the plaintiff’s counsel the choice of scheduling an evidentiary hearing on the matter or of a dismissal of the complaint, giving the plaintiff 20 days to amend the complaint showing evidence that they had properly noticed me and accelerated the mortgage 30 days prior to filing suit, in accordance with the terms of the mortgage. The counsel for plaintiff, declined the evidentiary hearing and the Judge ordered that my Motion to Dismiss was granted, giving the plaintiff 20 days to amend the complaint and provide evidence that they had properly notice me and accelerated the mortgage 30 days prior to filing the instant action.

I thought I had won the hearing on my motion.

The Judge then began to lecture me as if I was a deadbeat. He asked me if I was simply trying to get out of paying my mortgage. I found this line of discussion offensive, inappropriate, and uncalled for. I told the Judge that I simply wanted my day in Court, due process to raise my defenses and the issues of law and fact regarding this action. I told him I wanted justice and the opportunity for due process guaranteed under the Constitution.

This discussion then led to my telling the Judge that the plaintiff was suing me in two different Courts, on two separate actions, both actions on the same mortgage and that this was a splitting of a cause for action and that the cases should be consolidated since it was the same mortgage. The Judge had his judicial assistant check the dockets to confirm what I said and he agreed and ordered that the cases to be consolidated.

At the conclusion of the hearing, I requested that the Judge summarize, for the record, what he was ordering. He said he was issuing the following two orders, the first one granting my motion to dismiss For lack of Proper Notice, giving the plaintiff 20 days to amend their complaint evidencing that they had in fact noticed me and accelerated the mortgage 30 days prior to filing suit. The second order was that the two cases to be consolidated. I requested that I be allowed to prepare the two orders but the Judge allowed the plaintiff’s counsel to prepare the two orders.

On the record, I asked that I be given the opportunity to review both orders before they were submitted to the Court. The plaintiff’s counsel agreed that he would allow me an opportunity to review the orders BEFORE  they were submitted to the Court. I gave the plaintiff’s counsel, my contact information.

On April 24, 2010 via e-mail, I received the order for consolidation.  I immediately contacted Albertelli Law via phone and e-mail and asked where the second order was, the one granting my motion to dismiss, giving the plaintiff 20 days to amend their complaint and provide evidence that they did in fact notice me and accelerate the mortgage 30 days prior to filing suit. The Albertelli Law’s legal assistant, Regina Davis, told me that the second order, granting my motion to dismiss would be done later. I insisted that they both be done at the same time and submitted to the Court at the same time. It was then that she informed me that the order to consolidate had already been sent to the Court, without my having a chance to review it. Needless to say this was upsetting as they had agreed to allow me to review it prior to submitting it to the Court. I requested that the second order be sent to me immediately for my review. They knew I was upset about how they were handling these orders so they rushed to send me the second order, granting my motion to dismiss.

I do not believe these fraudsters had any intention of submitting this second order to the Court because I had prevailed in the hearing. I do not believe they ever submitted it to the Court. Once again, these “officers of the Court” lied and took out their “bag of tricks”. They rushed the order to consolidate the cases, which I was never given an opportunity to review, to the Judge and he signed it on May 5, 2010. The fraudsters then filed an Amended complaint on May 3, 2010 which did not include evidence that they had properly noticed me which was the reason the Judge has allowed them to amend the complaint. Instead, it was amended to drop the count to reestablish the note.

On May 5, 2010, I received a copy of the amended complaint that Albertelli filed with the Court on May 3, 2010. The amended complaint was not amended in accordance with the issues at hand in the April 20^th hearing in that it does not provide evidence that they properly noticed me and accelerated the mortgage 30 days prior to filing suit. It does not refute the affidavit I filed or the assertions I made in the hearing that resulted in the Judge’s order granting my motion to dismiss. Their amended complaint does not cure the defect that was the VERY ISSUE in the April 20^th hearing and which was the basis for the Judge granting my motion to dismiss. Instead, the plaintiff’s amended complaint changes their pleading in the initial complaint, dropping a count. They did not petition the Court to amend their complaint in fashion so in amending the complaint in the manner they did, they violated the Florida Rules of Civil Procedure once again. There amended complaint is also unverified.

On May 6, 2010, I received via regular mail, a copy of the Judge’s order to consolidate the two cases, dated May 5, 2010. I contacted the Judge’s judicial assistant and asked about the second order and she was of no help. I then prepared the second order that the fraudsters probably never submitted to the Court and personally took it to the Judge with a letter explaining the matter.

To date, I have not received a copy of the signed second order, granting my motion to dismiss for lack of Proper Notice. I believe that Albertelli Law intentionally delayed or did not submit this second order because I prevailed and they are unable to present evidence that they properly noticed me and accelerated the mortgage 30 days prior to filing suit. I believe they are once again trying to “trick” the Court, as they have done in the past when they attempted to default me, affirming to the Court that I had not filed an answer when the Court file and the docket clearly reflected that I had filed an answer. The reality is that they cannot prove that they properly noticed me without “manufacturing” evidence, which many of these foreclosure firms have been known to do. Maybe they are reluctant to do it in this case since there is so news about lenders and their counsel “manufacturing” fraudulent affidavits, assignments, even notes and filing them with the Court. Lender Processing Services and the Florida Default Group, P.L. both are currently under investigation for that very practice.

In my letter to the Judge I explained my concern that Albertelli Law was playing games, hoping to make his order, granting my motion to dismiss, of no effect, by either not filing it, or hoping it will be disregarded since the Judge has signed the order consolidating the cases, the order they eagerly rushed to the Judge. I attached an order, per his ruling in the hearing, for his signature. He has not signed it. I also explained that I was concerned that their filing of an amended complaint on May 3, 2010, which does not address the issues litigated in the April 20^th hearing as the Court intended, is yet another “trick” to compel me to answer that amended complaint or risk their trying to “trick” the Court into defaulting me. They also could be trying to get another opportunity to refute my affirmative defenses which they did not do when I filed my first answer. These fraudsters do not litigate or the law and the facts of the case, nor do they obey the orders of the Court and the Florida Rules of Civil Procedure. They simply depend on their “template of tricks” to trick the Court into allowing them to prevail, many times without even proving proper standing to bring suit, and often based on false claims, affidavits, assignments, and other documents.  .

I incurred the expense of a Court Reporter for that April 20, 2010 hearing. I presented my case, an affidavit, and evidence including case law, all of which the plaintiff was unable to refute and the Judge gave the plaintiff 20 days to amend their complaint evidencing that they had properly noticed me and accelerated the mortgage, giving me 30 days to cure the default. Today is May 18, 2010 and now 28 days have passed since the April 20^th hearing and the plaintiff still has not supplied evidence of their compliance with the proper notice clause of the mortgage. Remember, the Judge gave them 20 days to do so.

On the 22^nd day, after the hearing, I received a letter from the Judge’s judicial assistant telling me that my letter to the Judge had been filed with the Court, which by the way, I had already done. I asked if the Judge had signed the order granting my motion to dismiss and she had nothing to say. My fears were substantiated, even though I had prevailed in the hearing; the fraudsters were successful in “tricking” the Court and the Judge specifically into making my motion to dismiss of no effect. By allowing their “tricks” to prevail, justice was not served. The fraudsters at Albertelli Law had turned a loss into a victory and the Court allowed them to do this. Once again, the “tilted playing field” and bias of the Court towards the plaintiff became glaringly evident.

Who loses, me, the pro se defendant. The plaintiff’s case is not dismissed per the Judge’s ruling. The plaintiff never had to prove they properly noticed me and accelerated the note prior to filing suit, the cases are now consolidated, and the plaintiff has filed an improper amended complaint without petitioning the Court and being granted permission to amend their complaint in the manner they did. They amended it in a manner that was totally unrelated to the issue of the April 20^th hearing, without leave of the Court. The Judge is now out of the consolidated case and he walks away, having done “his part” in “protecting the plaintiff’s position”, violating and ignoring his own ruling in the process.

What justice!!!!!!!!!!!!!!!

What lessons can be learned from the proceeding in these three hearings? There are many! One is that the playing field is not level. Judges favor the plaintiff. The defendant, especially a pro se defendant, is at a great disadvantage. They are fighting not only the lies and fraud perpetrated by the plaintiff and their counsel, the fraudsters aka the “Officers of the Court”, but they are forced to compete on an unlevel playing field, enabled and even intentionally tilted by the Court in the plaintiff’s favor. Another is that the fraudsters are not required to follow the Florida Rules for Civil Procedure, either in their filings or in their behavior before the Court. The fraudsters are allowed to lie, file false affidavits, assignments, and other manufactured documents to perfect their claim. They are allowed to use any “means” they choose to get the “ends” they seek, stealing the defendant’s home by hook or by crook. Another lesion is that, rather than being unbiased arbitrators of justice based on the facts and the law, many Judges have become willing surrogates to the plaintiffs and the fraudsters that represent them. These Judges have allowed their courtrooms to become, not bastions of unbiased justice, but rather coliseums in which defendants, especially pro se defendants, are thrown to the lions seeking to devour them by any “means” that will accomplish the “ends” the plaintiffs desire.

All of this places the defendant in a quandary. Defendants become reluctant to schedule hearings on their valid motions because they begin to feel that they are virtually moot. The Judge will likely deny their motion, regardless of the fact that the law, DCA opinions, the Florida Rules of Civil procedure, and the facts, support the defendant’s claim. In addition, the defendant begins to fear other things that may happen in these hearings, such as the Judge issuing a blanket dismissal of all of the defendant’s unheard motions. The defendant begins to look at the Court, not as place where they can go before an impartial arbitrator of the law and the facts and receive unbiased justice, but rather as a place where the deck is stacked against them. I cannot understate how this is contrary to the foundational principles of our justice system

A foreclosure case is a case in equity and the reality is that equity is getting harder and harder for defendant to find in the foreclosure coliseums of slaughter that many courtrooms have become.

I want to respect the Courts and, as a defendant, I look to the Court to be an unbiased arbitrator of justice, insuring that I am allowed to defend my position with due process, not subject to “tricks on the Court” by the plaintiff and the fraudsters representing them. There are many valid concerns regarding foreclosure proceeding as prosecuted in many courtrooms today. Who is listening? What recourse does the defendant have? The media does not care. The Florida Bar does not care. Our elected officials do not care and the Courts are accountable to no one.

Perhaps we should skip the dog and pony shows, the illusions of justice that occurring daily in many Courts around the country. Perhaps it should all begin at the Appellate level. The Judges, the plaintiff’s, and the fraudsters that represent the Plaintiff’s are counting on getting their way though any means to the end they desire at the circuit level. They are betting that though many valid issues of appeal are being created daily in the “show trial” hearings of today, that the defendant, once vanquished and thrown out of their homes will not have the resources or the wherewithal to file an appeal. If the defendant’s only hope is at the Appellate level, then perhaps justice would be better served if we started at that level. Let us eliminate the defendant slaughterhouses that many courtrooms have become. In a time of budgetary crisis, that would save the taxpayers a great deal of money, and perhaps restore a modicum of justice to the foreclosure process and reverse the travesty and mockery of justice that many courtrooms have become.

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For the first time in many years, two attorneys are competing to become the President of the Florida Bar, Ervin Gonzalez of Coral Gables and Scott Hawkins of West Palm Beach.  An article regarding the contest can be found here. The following letter is being published and sent to the candidates by a member of the Florida Bar’s Committee.  Many lawyers that represent consumers are deeply concerned about the unethical practices that are being used to victimize consumers, and those concerned lawyers want to know how or if the Florida Bar is prepared to stand up and protect consumers.

Millions of consumers in Florida have been negatively affected, either directly or indirectly, by the foreclosure  crisis that continues to grip the country and which is concentrated in Florida. Consumers who find themselves in foreclosure are directly affected by the crisis but every citizen is affected as the crisis continues and property values continue to fall.

A contributing factor in the scope and magnitude of the crisis is the fact that mortgage brokers, title agents, con artists and an assorted cast of unscrupulous characters preyed on the unsophisticated and unprotected. True some attorneys may be included among the cast of bad actors, but their numbers are small and all members of the Bar undoubtedly support their prompt dismissal from the ranks of practicing attorneys.

In the midst of this crisis it is widely perceived by those who practice in real estate/consumer law that the Florida Bar has consistently ignored the interests of real estate/consumer attorneys and that the Bar is not doing nearly enough to protect consumers who continue to be victimized by con artists and out of state attorneys who are preying upon them in the middle of this crisis.

Consumers who have been served with a foreclosure lawsuit are aggressively targeted by loan modification companies operating both in the state and from out of state.  Many such firms emphasize their actual or fictitious affiliation with out of state attorneys or law firms then make direct and specific promises that they can absolutely save the consumer’s home and stop the foreclosure process.  I have emailed several of these companies, told them I’m in foreclosure then asked them if I should hire a Florida attorney.  They have responded, “Absolutely not.  You don’t want a Florida attorney, Foreclosure is federal law.  We’re based in California where the lenders are and you need a California based attorney.”  That’s just one example, but this problem is epidemic. The Florida Attorney General’s Office is doing a great job of pursing this problem, but the Florida Bar seems unwilling to address this problem as aggressively as it should.  The reality is that consumers who fall victim to these schemes do not distinguish that the lawyer or law firm might have been out of state, they only perceive that they have been victimized by an attorney.

Although it’s bad enough that the Florida Bar is not being proactive in response to this crisis, I am even more concerned by the Bar’s recent failures to protect our existing scope of practice.  In 2008, the Florida Bar allowed a law to take effect which made it a violation of law for attorneys to represent homeowners in foreclosure or bankruptcy. (See the 2008 version of F.S. 501.1377)  The Attorney General subsequently issued a letter clarifying that while the law did in fact make the practice of law illegal, that was not what was intended.  Was the Bar aware of this piece of legislation or did the Bar simply not understand the issue and allow this bad law to pass?  An attorney exemption was hastily added (See the 2009 version of 501.1377) which reads as follows:

An attorney licensed to practice law in this state who provides foreclosure rescue-related services as an ancillary matter to the attorney’s representation of a homeowner as a client.

This is bad language because it encroaches on the broad scope of practice that attorneys are entitled to if an agency other than the Bar might be asked to determine whether the attorney’s representation is in fact “ancillary” to that attorney’s representation of the client.

While it was disconcerting to me that the Florida Bar would allow a law to pass that made the practice of law illegal in the first place, I am even more concerned that a similar situation was permitted to occur again in the 2009 legislative session when yet another bill with this “ancillary” language passed that once again encroaches on broad scope of practice attorneys have earned.  I wonder whether the Bar fall asleep again or whether this bad law was allowed to pass with the Bar’s consent?  The issue is as follows:

Chapter 2009-241 was signed into law by Governor Crist on June 29, 2009.  This law, which amends the mortgage lending and brokering licensing statute, includes an amendment which again improperly restricts the practice of law and which must be amended.  The 2008 and previous versions of Florida Statutes contained the following attorney exemption:

494.003  Exemptions– (e)  Any person licensed to practice law in this state, not actively and principally engaged in the business of negotiating loans secured by real property, when such person renders services in the course of her or his practice as an attorney at law.

The exemption has now been restricted and reads as follows:

494.00115 Exemptions— (d) An attorney licensed in this state who negotiates the terms of a mortgage loan on behalf of a client as an ancillary matter to the attorney’s representation of the client.

Many attorneys are now actively involved in foreclosure defense and other issues relating to mortgages and real estate.  All exemptions relating to our scope of practice should be broad, unrestricted and consistent throughout Florida Statutes. The exemption should simply read, “An attorney licensed to practice law in this state.”

The thousands of attorneys who are ethically representing homeowners in foreclosure dramatically improve the public’s perception of attorneys and the Bar in general because we serve them in a time of acute crisis and provide service with a value that far exceeds the fees charged.  The Florida Bar should not be allowing any language to pass which encroaches on our scope of practice and it certainly should not allow this be occurring in the middle of an acute crisis.
Every crisis presents an opportunity. The ongoing foreclosure crisis presents the Bar with a unique and powerful opportunity to provide real service to consumers and citizens who find themselves in peril.  What will you do, as president of the Florida Bar, to ensure more laws are not permitted to pass which further encroach on the attorney’s scope of practice and how will you use your position to protect consumers from continued harm caused by out of state attorneys and other unscrupulous individuals?

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