Posts Tagged ‘Rocket Dockets’
Attorney Abandons Hundreds of Thousands of Cases Harming Clients And Costing Taxpayers Millions
Author: Matthew D. Weidner, Esq.
The news is reporting that a Florida attorney just walked away from hundreds of thousands of cases that are pending in Florida courts. This action places hundreds of thousands of defendants in legal jeopardy and will cost our court system millions of dollars in additional work hours that are directly related to protecting the interests of all who are impacted.
Fanne/Freddie, who paid for most of this (with my money) and who should have been supervising, did nothing.
What’s most maddening about this is it happened back in April 2011, we’re all still paying the price for this and no one, no one has done anything at all the parties who are responsible for this…
Nothing from the feds (remember Fannie/Freddie paid millions in advance attorney’s fees and knew long ago about these problems.)
Nothing from the Florida Attorney General (what exactly is happening with all the investigations?)
Nothing at all from any of the many groups or agencies that could do something about this train wreck.
From Today’s Palm Beach Post:
A report issued Friday by the Federal Housing Finance Agency Office of Inspector General said an outside law firm Fannie Mae hired to investigate allegations of wrongdoing confirmed “unlawful” practices and stated that foreclosure attorneys were sacrificing accuracy for speed by filing false documents.
After learning of the attorney misconduct in 2006, Fannie Mae failed to make any improvements in its oversight of the firms.
Remember:
“The judges are the gatekeepers to jurisprudence, to the Florida Constitution, to access to the courts and to due process,” said attorney Chip Parker, a Jacksonville foreclosure defense attorney who was recently investigated by the Florida Bar for his critical comments about so-called “rocket dockets” during an interview with CNN. “It’s discouraging when it appears as if there is an exception being made for foreclosure cases.”
The Revolution Began In Florida….
Author: Matthew D. Weidner, Esq.
There is a quiet and powerful revolution that is slowly and methodically making its way across this country. This revolution is a direct response to the White Collar Criminal Anarchy that stretches from sea to shining sea. The revolution is a response to the gross abuses and overreaching by the corporations and special interests that bought and paid for our state, federal and local governments. The direct payoff for their enterprise can be seen everywhere we turn. Wages down, jobs sent offshore. Remaining income stripped away to pay for increased fees on everything. Higher power, higher insurance, higher food and higher banking/commerce fees. While we’re not looking and because those who should protect us work for them, they have tightened the thumbscrews, squeezed down the noose.
The evidence that the United States is governed by a White Collar Criminal Oligarchy and that we are all being squeezed is everywhere but it is on display most acutely on the doorstep of every home in America, and especially those homes in foreclosure. In those judicial foreclosure states where judges still (theoretically) exercise some modicum of supervision over the foreclosure process, we have caught them all smack in the middle of grandest financial crime spree ever perpetrated on a people. Although they’ve been caught in countless ways, every single branch and level of government, every check and balance against crime, greed, avarice, failed and just about every person who could stop the abuse looked the other way. This all would have gone on unchecked until it was too late and our country had descended so far into the abyss that we could not recover but the right people stood up and took notice. Citizen activists and the press started pushing back against the machine and amazing things started to happen.
Although this story starts in Florida, the changes are rippling across the country. The Arkansas legislature passed a bill that requires lenders to collect their documents before filing and tell the truth (gasp). Similar legislation was introduced in Arizona, and while it disappeared under the most curious of circumstances, the controversy over its strange disappearance was a key factor in ensuring that a good piece of legislation passed in Hawaii. Things are creaking along in legislatures across the country and perhaps more importantly destructive legislation is not moving forward.
In the Beginning….
I trace the beginning of this revolution to the final weeks Florida’s 2010 Legislative Session. Consumer rights advocates who were monitoring legislation in the capitol alerted attorneys around the state that the Florida Senate was moving aggressively on a bill that would have turned Florida into a non-judicial state, that is a state where foreclosures were conducted outside the supervision of elected circuit court judges. For the attorneys and activists that had already been seeing first-hand the gross abuses that were occurring in foreclosure courtrooms, the lies, the fraud, the fabricated documents, the shortcuts and violations of basic rights, the thought that even these protections would be eliminated was a full scale crisis that could not be allowed to occur.
Immediately a half dozen attorneys mobilized and reached out to consumer groups and advocates across the state then hatched a plan to converge in Tallahassee to defeat these efforts by the banks to circumvent our Florida courts and turn our state into a non-judicial state. Tour buses traveled all the way from Naples and Miami, converged in Orlando then arrived on the steps of Florida’s capitol and in the shadow of the Florida Supreme Court early on the morning of a key vote. In one of the first key meetings of the morning, a small group met in the office of the senator who was the sponsor of the bill. The meeting was tense and frankly hostile. This senator specifically mentioned his bank contacts and the heavy influence he was under to pass this bill. He was totally opposed to everything we said and committed to bringing his bill forward…
I spent time in the Capitol years ago as an aide an analyst so I still have a few friends that know where the bones are buried. We sat down mid-morning and she told me, “Don’t worry about this bill, it’ s going nowhere!” Huh? How could she be so sure? That’s when she directed me to a Senate analysis that contained a fiscal impact statement. You see, Florida’s entire court system is funded like one of those coin-operated car washers. The lights will stay on and the salaries of judges and staff only get paid if filing fees keep being paid because those filing fees—and not a dedicated funding source—return back to fund the day-to-day operations of the court. The bill was dead on arrival because a disproportionate percentage of the budget or ALL COURT FUNDING was now coming from foreclosure filing fees. In short, the economic impact of turning Florida into a non-judicial state would deprive the courts of the filing fees and funding needed to keep the lights on. She was right….Florida was not going to turn into a non-judicial foreclosure state…at least in the 2010 legislative session.
The Money Changers in The Temple
Later in the day I bumped into an old friend from law school. She was scurrying (or slithering) around the Rotunda with all the other lobbyists. In the final days of every legislative session, there is a frenetic energy of tension and chaos on this floor, everyone peering up at the television screens, thumbing Blackberries and pecking away at laptops. There is a marked difference between the Senators and the Representatives. The Senators move slowly, imperial like and always with an aide or a flunkie in tow. The Representatives have no flunkie biting at their ankles and they sort of ping pong across the floor. Surveying the scene, a lobbyist friend shared with me all the sophomoric gossip that is a key element of lawmaking in this country. Forget about your notions of genteel and serious deliberations, the legislative session is more like a middle-aged spring break for many of the shucksters we elect and send to our state’s capitol. Except that anymore these elected leaders…particularly the Representatives, are not even middle-aged….they’re baby faced and look like they just walked in from one of the many Florida State frat houses that lie a few blocks from the capital.
So after the brief pleasantries and I explained that I was fighting foreclosures and was in town to fight the non-judicial foreclosure bill, she got all excited, whipped out her tracking sheet and showed me how one of the groups she was working for had secured millions of dollars in funding to help solve the foreclosure problem in Florida. I didn’t fully appreciate the significance of the conversation at the time, but this was the first time mention of Florida’s now infamous Foreclosure Rocket Dockets. (I’m fairly certain I remember she said there was also some funding as part of this appropriation that was supposed to go to legal aid groups across the state, and while that money “POOF!” disappeared.)
The Original Sin
From the beginning of my conflict with Florida’s Rocket Docket, I’ve been vexed by one dark and nagging question. How is it, that at the tail end of Florida’s 2010 Legislative Session, while the Legislature was cutting budgets for critical areas like cops and firefighters, the negotiators found $9.6 million dollars to fund Florida’s Foreclosure Rocket Dockets? Who were the lobbyists and staff that had enough juice to preserve this very targeted funding through bitter last minute budget battles when long-standing and crucial programs were being cut across the state? Whose sacred oxen were traded or gored so that this Constitutional Trojan horse was allowed to roll right in to the middle of our judicial branch?
The only explanation I’ve ever heard was that the courts had been begging for more funding for years and that this funding was just a response to those long pleaded for funds, but when there are critical areas of need throughout the entire court system and when the funding for the entire judicial branch amounts to less than 1% of the entire state budget, this one time shot in the judicial arm made no sense at all. And while this one time funding made no sense from a public policy perspective, it certainly made dollars and cents, millions and millions of dollars all funneled right back to the law firms that profit from foreclosures. I have objected to the Rocket Docket program from the beginning and this was the original sin. If programs and initiatives are going to be implemented, they should be done in public, in committee, with full discussion and debate before the people who pay for them—the taxpayers, not cut together in some smoky back room of budget negotiations.
The Fake Out- The Payoff
When courts from across the state first reported on how they had used the money doled out to fund the rocket docket by the legislature, the figures were extraordinary. Senior judges manning the controls of rocket dockets from across the state managed to grant more than 64,000 summary judgments in the few short months after Rocket Docket LIFTOFF! Multiply that summary judgment number by the average attorney fee earned by the foreclosure mill of around $1,200.00 and you can see that the investment of $9.6 million of tax public dollars generated a massive payoff. But I’ve got a real problem with targeting my tax dollars to foreclosure mills, the majority of which are or were under investigation by Florida’s Attorney General at the time they reaped such an obscene profit from the people’s money.
Some recoil now at the term “Foreclosure Rocket Docket”, but the term was coined by the architects of the state’s first rocket docket, down in good ‘ole Lee County, Florida. No need for me to provide colorful descriptions of how the Rocket Docket functions down there, you can read an exciting and detailed narrative in the form of a 64 page lawsuit that was recently filed by the American Civil Liberties Union. The ACLU lawsuit is an indictment of the systemic problems with these star chambers but before they filed, I had formulated a challenge to the Constitutionality of these courts based on the factors articulated in several Supreme Court cases, Physician’s Health Care and Wilde v. Dozier.
Suffering without Suffrage
As articulated in my challenge, the fundamental problem with courts manned by Senior Judges can be summed up in one word….SUFFRAGE. Suffrage is a pillar of our entire form of government and a right which we must all jealously and righteously defend. Suffrage is the absolute right that every American has to demand that his government is accountable to the governed. Suffrage is commonly associated with voting rights, but the concept applies to all of government. The check against the overreaching of an imperial state is our ability to vote the regime out. In Florida, our Circuit Court Judges are called upon to make tough calls. They are elected and they face periodic approval from the voters. These judges are most often confirmed by voters, but occasionally, their judicial handiwork raises the ire of voters and they are not confirmed. This shows the critical function of electing, then periodically affirming judicial service. Voters are deprived of this fundamental right vis a vis senior judges manning the controls of the foreclosure rocket dockets.
The foreclosure crisis is a catastrophe, a slow moving train wreck that has been playing out over years, and will continue to play out and with countless parties who bear the blame for all that has gone wrong. But our circuit court judges have the power and position to make the wrong right, to stop the momentum of fraud and criminality and wrong dead in it’s tracks. Our circuit court judges could have been the circuit breakers who could have (and should have) shut down this out of control machine that now undermines the credibility of our entire judicial system. There is no debate or dispute anymore…we all understand that the foreclosure machine went wild and out of control and that courts across this county entered judgments based on patently false, inaccurate and sometimes criminally fraudulent evidence and this now represents a very real crisis in confidence in our judicial system.
This all became apparent long ago, but rather than stopping all this dead in its tracks and forcing these Plaintiffs to get the job done correctly, the machine was allowed to spin wildly out of control. I ask the question, would we all not be far better off, would our court system and our entire country not be far better off if our judges had merely flipped the switch and turned this machine off when it became apparent that the machine was out of control?
The Rocket Docket- My Maiden Voyage
I will never forget my first experience with the Rocket Docket….and I don’t mean that figuratively. You see, I had a court reporter to record the whole experience so it will exist forever. On my first morning, I was prepared to appear before one of the judges who I knew had heard these cases for years. I was sure the judge would immediately recognize the serious problems with the case and send the Plaintiff packing. But when I arrived in court, it was not the courtroom I had come to recognize, it was a wild and messy place, so frantic and chaotic that the court reporter didn’t get the first bit of the argument…the transcript picks up when I am full into an argument.
What the transcript doesn’t capture, but what was apparent from the moment I stepped before the court, was that it was absolutely apparent that the judge recognized only one option….GRANT SUMMARY JUDGMENT. The problem is that in this case, Summary Judgment was totally 100% not even close to an option. A court cannot grant summary judgment if just one fact is in conflict and in this particular case I had drafted 33 pages worth of argument and facts….but none of that matter….SUMMARY JUDGEMENT GRANTED was all the court could say…..and this just drove me INSANE…because the court just could not grant summary judgment in this case….it wasn’t even close. But I had lost, the court had spoken….judgment was granted. But my job is to protect and defend not just my client but the whole court system. The oath I took when I became a lawyer requires me to protect and defend the Constitution and what had just occurred was an abject, direct and serious attack on the Constitution. So I immediately asked to take the file before the elected judge who was assigned to the case. This dispute set off alarm bells and the machine started smoking and seizing up, but when I got in front of the elected judge it took the judge about two nano seconds before he agreed with me….this case is not even close for summary judgment….so improper summary judgment VACATED.
The rocket docket, both in conception and especially in execution, was and is repugnant to the basic principles and protections established in our state and federal constitutions. These kafka-esque star-chamber courtrooms were means to justify the end result…grant foreclosures….due process be dammed. Proceedings were held outside the pesky glare of the public and the records of the proceedings were jealously guarded by staff who knew their task was to keep the machine moving…and to fight anything and anyone that interfered. And these are not just my impressions, remember that no less an authority than the Chief Justice of the Florida Supreme Court was compelled to issue a directive to all courts reminding them that open courts and open records must be respected…even in the rocket docket.
The rocket docket, both in conception and especially in execution, was and is repugnant to the basic principles and protections established in our state and federal constitutions. These kafka-esque star-chamber courtrooms were means to justify the end result…grant foreclosures….due process be dammed. Proceedings were held outside the pesky glare of the public and the records of the proceedings were jealously guarded.
I am haunted by just how much damage has been done in our state and in this country because this unjust, improper, illegal foreclosure machine has been allowed to run out of control for so long. I am told that there are major investigations occurring all across this country….FBI, DOJ, IRS, OCC…an alphabet soup of acronyms. We also know for certain that major lawsuits are now confirming what we already know. But how can you ever make right all the wrongs that have been done? How do you re-assert the dignity and confidence in our court system that has lost its way?
Fighting the Fight- The Revolution Continues..
The important thing to consider is just how big this has all become. They are working feverishly to put the genie back in the bottle, to put humpty dumpty back together again, to close pandora’s box but we are all too far gone now for that to work. All we can do now is labor on, keep fighting through what will be very difficult times. The fact of the matter is that things have gone too far off the charts in this country for things to just quietly right themselves…there just is no easy fix…and so we are left with difficult choices and difficult times ahead…I wish I had faith that we had leaders who would show us the way out of this gnarly wilderness, but they have all been absent so far, haven’t they?
These are dangerous times in this country where our votes and our voices are already drowned out by the checkbooks , the propaganda and the outright corruption of the corporations that have infected every single aspect of our daily lives and which lord over our legislatures at the state and national levels with near absolute power. Fighting to preserve the basic rights that are left is an absolute obligation and a sacred calling for those who took an oath to protect those basic rights, like attorneys. Those who are fighting this have suffered, and will continue to suffer, very clear and very specific attacks, abuses and reprisals because they dare to question the wisdom of the Rocket Docket and the larger attacks we are all under. I will be put on trial for my crimes and that’s fine. It will be a most public lynching. And if they do convict me, it won’t matter because all hope is lost. And after all, in every revolution there are casualties, right?
Foreclosure Court From a Homeowner’s Perspective
Author: Matthew D. Weidner, Esq.
The sleeping giant that is the American people is waking up. The correspondence below is the kind of letter every single person who is impacted by foreclosure and who cares about our country needs to be writing. This is still our country and for now we still have the right to protest. If you don’t like what you’re seeing, but you’re not doing anything about is….don’t complaint when it all comes crashing down around us. Make sure you join the rally in West Palm Tomorrow!
It’s time for leadership and the rest of America to wake up and take notice as well. Please read below a letter from a homeowner addressing issues relate to foreclosure:
Dear Judge I. Kreeger,
I am really sorry that you feel that Foreclosures and “rocket dockets” is not a rush to judgment.
I respectfully disagree.
I am a Florida Homeowner and a recent veteran of your “Rocket Docket”. It is a real pity that the Banks of this country have overloaded the Florida court system with so many foreclosures. We won’t get into the fraudulent process by which the banks foisted loans onto a gullible public. Of course what you did not mention is how much money the Florida Court system and the various Clerks of Courts make on each foreclosure.
It was not my experience as you say that there was any review of documentation to determine that all procedural requirements are met and that this happens out of public view. I would say it’s a pretty fair guess that all proceedings happen out of public view.
Read the entire letter below:
Where Did Florida Find $9.6 Million to Fund The Fraudclosure Rocket Docket?
Author: Matthew D. Weidner, Esq.
As we all know, these are desperate economic times. The state is laying off teachers, cops, firefighters, budgets across the state are slashed. Yet right in the middle of all of this cuttin’ and firin’, viola’ like Santa on Christmas morning up pops $9.6 million dollars to fund the absurd Fraudclosure Gas Chambers, (I mean Foreclosure Rocket Dockets). Instead of keeping the jobs of those teachers, cops and firefighters, our state found a quick and dirty way to throw them onto the street.
This whole little experiment in a thing called The First Amendment which is my blog really got fired up when a group of activists got together and traveled to Tallahassee to fight a bill that would have turned Florida into a non-judicial foreclosure state. (We don’t need no judges looking over our shoulders and examining our work, we’ll just take this home all by ourselves thank you.) The response from legislators to our fight against a turn to Totalitarianism that would be the result of a turn to non judicial foreclosure ranged from open and receptive to outright hostile and aggressive from one Senator in particular who insisted (quite loudly and aggressively) that we should all just go home and let the banks take all this property back. (No need for our input and interruption, go home.)
As you see from the article attached here, the banks are screaming and hollerin’ and jumpin’ for joy…their new Rocket Dockets, while not moving as fast as they would like are churning back properties to the banks at a quick enough pace to justify the bank’s investment in the whole rocket docket charade. And just think of the massive, incredible Return On Investment (ROI) that the Foreclosure Mills have obtained from the little $9.6 million dollar investment. 65,000 cases disposed of x expected attorney’s fees of $1,200. Add in a few thousand dollars here in there of inflated service of process fees and now you’re talking about some real money. (Money that the foreclosure mills can spend on campaign contributions and attorneys to fight the Attorney General investigations and support other initiatives that will fulfill the goal of throwing cops, teachers and firefighters out on the street.)
So we’re all well aware of the $9.6 million dollar gift from above. But let’s see some real investigative reporting about how that magic money appeared, who conceived of this ill-conceived and absurd farce of a justice system and let’s see what kind of campaign contributions are and were floating into the campaign accounts of those “leaders” who conceived and birthed this absurdity that is the Foreclosure Rocket Dockets.
MY COMPROMISE, MY CONCESSION, MY SOLUTION TO THE FORECLOSURE BACKLOG
Now as much as I am a passionate, tireless and outspoken critic of the Fraudclosure Rocket Docket, I am a political and economic realist and I’m prepared to offer a massive (and from within my camp a controversial compromise). Lay off my homeowners. Leave my tenants alone. When we’ve got a property with a homeowner in it, taking care of the property AND PREPARED TO PAY SOMETHING. Use the Rocket Docket money to force the banks to keep them in that property. The mechanism that exists is Florida Statute 69.021. When a judge has a homeowner or tenant in court, she uses the 69.021 procedures and establishes a payment that owner or tenant must make to stay in the home.
All the vacant, abandoned and forgotten properties, let the banks take them back through in rem proceedings and start getting them back to work serving their useful function as shelter and homes for people that need them. Get contractors to work clearing them. Get real title attorneys to work clearing title and purging the putrid soup that exists in title ownership. For all those borrowers that are ready to walk away….real deed in lieu’s….here’s your keys, here’s your home in good shape. Let me get on my way figuring out how to make a living and keeping food on the table for my family.
So there you have it. Two tracks, The Responsible and Realistic Docket running right alongside the Rocket Docket. Investment and Vacant properties, you shoot down the Rocket Docket…..Bye Bye. Homestead and inhabited properties…the committee will determine what your payment is, you sign a contract to pay the payment, mow the lawn and pay the insurance and you’re safe and secure in the home for the short term while we figure out how to unscrew our selves from this economic black hole that we’re in.
A Most Disturbing Report Card- Sickening Really
Author: MattWeidner
Clearing 65,830 Foreclosure Cases is No Accomplishment
I’ve been a vocal and persistent critic of the Foreclosure Rocket Docket and frankly of most of the court’s efforts to clear foreclosure cases across the state. The fundamental basis for my objections is my belief that the current manner in which these cases are being disposed of represents a breakdown in the basic requirements of justice, fairness and equality that we should all expect from our courts. I find it particularly inequitable that $9.6 million dollars in taxpayer funding has been used to fund and establish these Rocket Dockets, taxpayer’s own funding being used to fund and create a court system where their basic rights and long established rules of procedure and evidence are potentially ignored in a systematic manner. With all that we’ve learned about the conduct of f0reclosure cases, you would think our courts would finally start to understand and appreciate the gross inequities involved here…instead…..
Many months after I started sounding the warning bell, the Florida Attorney General announced it was investigating four of the foreclosure mills operating in the state…..and courts across the state continued to march ahead with foreclosures.
Many months after the Florida AG’s investigations were announced transcripts were released by foreclosure mill employees which confirmed my worst fears and suspicions about our courts being manipulated and defrauded…and still courts across teh state continued to march ahead with foreclosures.
Weeks after the transcripts were released the national press reported that the Plaintiffs themselves had admitted systemic problems with evidence they had submitted in courtrooms…and still courts across the state continued to march ahead with foreclosures.
If you’re not offended and insane with rage and anger, keep in mind that the Return on Investment for the foreclosure mills realized by their Rocket Docket is incredible. 65,830 x an average attorney fee of $1,200= $78,996,000. That’s a massive amount of cash that’s making its way back to the foreclosure mills that are under investigation.
There is so much more to be reported on about this report card, so many more hard questions that must be asked. How many of those judgments were based on affidavits that were later formally withdrawn and what happens in those cases? How many of those judgments were based on affidavits that were not formally withdrawn but should have? What are the foreclosure mills doing to alert the court to the cases that are based on these flawed affidavits or are they just standing as if nothing at all happened? What about the thousands of judgments that are entered based upon the flawed procedures and evidence described in the transcripts released by the Florida Attorney General? And a persistent, damming question that I have raised from the beginning….why are our courts not dismissing cases that violate the black and white rules of the court which would permit them to dismiss cases sua sponte?
Great reporting from Kimberly Miller at Palm Beach Post, article here.
The Damming Report Card below:
Florida Fraudclosuregate is a Constitutional and Civil Rights Crisis of Epic Proportions
Author: MattWeidner
The Florida Supreme Court’s Office of State Court Administrators estimates that there will be 559,945 foreclosure cases pending statewide by 2011. That same office issued a directive that Florida’s trial courts should dispose of 62% of those cases by July 2011. (Full Article Here) Each of Florida’s twenty judicial circuits have ramped up their efforts to clear those cases, but the primary means they have chosen to accomplish this goal–through implementation of so-called Rocket Dockets, may be unconstitutional. (See memo outlining reasons Unconstitutionality and transcript here.
I will continue to argue that if our courts are to maintain any semblance of fairness and equality, the $9.6 million dollars of federal funding should also be used to explore options that would lead to dismissal of foreclosure cases, for reasons such as failure to verify, and this money should also be used to explore common sense alternatives to foreclosure such as those detailed in the article below or to fund the implementation of Florida Statute Section 69.021 Fairness and Standards Committees rather than establishing Foreclosure Gas Chambers which result in the increasing the already obscene profits for the foreclosure mills currently operating in this state. Not only are we railroading homeowners out of their homes to benefit corrupt and unscrupulous plaintiffs that have already benefited from several rounds of federal bailouts and tax breaks on the backs of struggling consumers, we’re using the consumer’s own tax dollars to grease this progress along. I am clearly a partisan activist in this fight, but see Alternatives to The Rocket Docket here for an alternative to the improper and broken system we have cobbled together.
As detailed in the memorandum and case law cited above, I believe the Rocket Dockets as they have been commissioned are improper. We must not allow anyone other than elected judges who are at least theoretically answerable to the population make binding and final decisions in cases of such import. Also, the mere fact that these foreclosure cases have bogged down is evidence that the cases are complex and therefore not appropriate for perfunctory Rocket Docket proceedings. It is important to keep in mind that the vast majority of foreclosure cases are not defended or responded to by Defendants in any way. Accordingly, they should just sail right through from filing to sale right? So why the backlog? The biggest reason is the foreclosure mills cannot even get sloppy paperwork prepared and filed with enough accuracy to make a prima facia case for foreclosure…even when they resort to clearly improper means to (ahem) “create” the evidence and paperwork they need. (Article Here) None of this matters though because no one seems to care about basic elements of our state or federal law…even that outdated, tattered, ignored and forgotten scrap of paper called the united states constitution. (lower case to reinforce its diminished stature)
The Practical Application of The Foreclosure Rocket Docket
The preceding paragraphs addressed the formal implementation of these foreclosure Rocket Dockets. Now let’s talk about how many of the Rocket Dockets function. In a frenzy to meet ever increasing demands to file and proceed with foreclosure cases particularly in 2008-2009, the foreclosure mills were churning out and filing tens of thousands of foreclosure cases across this state every month. These complaints do not fulfill the most basic rules of pleading and do not fulfill the black and white rules of Florida Civil Procedure and yet our courts continue to this day to accept these deficient pleadings….the failure of our courts to police these basic rules of pleading are going to perpetuate a crisis that is only now in the 4th inning by my estimation. The most rampant and widespread pleading deficiency is the failure to plead the capacity of the Plaintiff in these actions. (There is a search function on this blog and if you type in “capacity“, you’ll find hundreds of posts on the subject.) This illustrates what is perhaps the biggest procedural and substantive failing that permeates the foreclosure docket….THE FACT THAT OUR COURTS HAVE NO IDEA WHO OR WHAT THEY ARE GRANTING FORECLOSURE JUDGMENTS TO.
Admittedly, most defendants in foreclosure are not paying their mortgage, but there is not a single homeowner in this state that ever borrowed a single cent from the IXIS 2003 Trust or any other variation of the tens of thousands of trusts, servicers or shadowy entities that are named as Plaintiffs in foreclosure cases all across this state. Some judges are very comfortable condemning homeowners, “What Gives You The Right Not to Pay Your Mortgage!”. But how many judges have asked the question of the Plaintiff, “What Gives You The Right To Collect This Mortgage?” Instead, the transcripts of Rocket Dockets and frankly even Circuit Civil proceedings reveals almost no regard whatsoever to whomever or whatever entity is before the court blithely demanding judgments totaling millions of dollars and taking title to real property all across this state. Keep in mind that foreclosure proceedings are both transfers of debt obligations and transfers of title to real property…real property that was the sovereign land of this United States of America. THE FAILURE TO IDENTIFY WHO WE ARE GRANTING JUDGMENTS TO REPRESENTS A POTENTIAL THREAT TO THE SOVEREIGNTY OF THE UNTIED STATES OF AMERICA.
Sound a little nutty..well, consider this. The Law Offices of David J. Stern is responsible by volume for taking back more real property in Florida than any other foreclosure mill in this state. In the prospectus filed with the Securities and Exchange Commission, this massive foreclosure machine chomping its way across Florida was sold to China…quoting from the SEC filing:
We were incorporated in the British Virgin Islands on February 19, 2008 under the name “Chardan 2008 China Acquisition
Corp.” as a blank check company for the purpose of acquiring, engaging in a merger or share exchange with, purchasing all or
substantially all of the assets of, or engaging in a contractual control arrangement or any other similar transaction with an unidentified
operating business which has its principal business and/or material operations in China.
and regarding disposing of foreclosed properties:
Currently, DSI LLC provides such services nationwide for a single customer.
I swung off course here a bit, but the point I want to make is the failure of our court’s to at the very least require these Plaintiffs to identify themselves is a very disturbing component of this crisis that has potentially profound consequences in the years to come. But the fact of the matter is many of our courts are not at all concerned with issues such as this. For many judges, the entire inquiry begins with the simple question….”have you paid your mortgage?” Forget about who or what is trying to collect your mortgage. Forget about the fact that many people have in fact been trying to pay their mortgage. Forget about the fact that many of the entities that are trying to collect these mortgages are fabricating their purported right to collect these mortgages under outright fraudulent or at least questionable means. Forget about the fact that oftentimes the Plaintiff that first comes to court swearing that it owns the mortgage is not the Plaintiff that ultimately takes title to the property because along the way an “Ex Parte Motion to Substitute Party Plaintiff” is filed or the Final Judgment is assigned to another party. Forget about the fact that in at least half of the cases, the named Plaintiff is not the real party in interest at all, but rather, Fannie Mae or Freddie Mac really owns the mortgage, but we cannot risk having it disclosed that the Federal Government is seizing more than 250,000 homes across the State of Florida.
In our rush to foreclosure, courts across this state are ignoring both long-established rules of civil procedure that (theoretically) apply to all civil cases filed in our courts and brand new rules of civil procedure that were adopted by our courts to deal with the widespread abuses particular to foreclosure cases. There are many rules that are being ignored, but the biggest and most significant rule that has been utterly and systematically ignored in 98% of all foreclosure cases is the very rule judges should be applying in foreclosure cases. Florida Rule of Civil Procedure Rule 1.510 and particularly and especially subsection (e):
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.
I quite literally have never, ever, ever seen this rule enforced in a Florida foreclosure courtroom. In the thousands of foreclosure cases I’ve seen, I have never seen a sworn or certified copy of the books and records referred to in the hearsay affidavits, not based on personal knowledge submitted by plaintiffs. And here’s the ironic thing. If our courts had been enforcing the application of this rule, it is less likely that we ever would have had the brief Robo Signer controversy. (wow, thank God that’s over….”Move along folks nothing to see here”)
Next, keep in mind that the severe and pervasive problems that have choked our foreclosure courtrooms and called into question the whole legitimacy of our court system have been known about for years. The Florida Supreme Court made up a nifty TASK FORCE. That TASK FORCE met and chatted and specifically identified most of the problems that have now caught the attention of the national press….MORE THAN TWO YEARS AGO. The findings of the Florida Supreme Court are published right here in the SupremeCourtTaskForceFinalReport based on all this fact finding and righteous indignation (THESE FORECLOSURE MILLS ARE OUT OF CONTROL!), the Supreme Court issued a Final Rule that was ‘supposed to clean up the bad practices. supremecourtfinalrule
Problem is the foreclosure mills don’t care about the Rules and many of our courts just don’t seem to care too much about enforcing them. But there are a few courts out there that have read the rules and are listening to the clear mandates and directives of the Florida Supreme Court….
It’s all just so exhausting, and the irony is if the foreclosure mills had simply started following the rules way back when, some of the problems we see now could have been avoided. But who really cares anyway? The Rules of Civil Procedure are Due Process and when the Rules are not enforced, there is no due process….but apparently there is no process due to defendants in foreclosure cases and there is no process due to the process itself either.
Why Do We Even Need Foreclosure Courts At All?
If our courts are not willing to ask any of these questions. If judges across this state are admitting that they are not reading these files and accordingly do not care about any of the answers to these questions, why do we bother having foreclosure courts at all? Why don’t we just permit the banks or entities or shadowy trusts to just go and start knocking down doors, changing locks and throwing people into the streets? The answer to the question is…WE ALREADY ARE. I’ve published several posts and there are examples from all across the country of banks and their agents just kicking down doors anytime and anywhere they damn well please. No one is doing anything at all to stop them. Law enforcement routinely fails to even take reports, much less stop them. In fact, law enforcement provides cover and protection for them to do this when they affirm the conduct and practices and in fact turn hostile and aggressive toward the homeowner (a term that apparently has no meaning in this country) as they recently did to an elderly couple here in Pinellas County. (For examples search “911″ or “break in” or “jack booted thugs”. But seriously, if any old Plaintiff will do and if judges are not looking at files or pleadings and if cops are not stopping break ins and seizures, why don’t we just save all the time and money and just turn homes over to the jack booted thugs, the shadowy trusts, the government sponsored entities? My faint notions of a little thing called the Fourth Amendment to the Constitution of the United States of America suggest this should not be occurring, but the real experience on the ground every single day tells me those rights and that nonsense “right” means nothing in this country anymore.
Who’s On First?
Even as I write this, our nation’s top policy makers, legislators, attorneys general, title insurance, banking executives and Wall Street executives are meeting in closed door meetings and working feverishly to hammer out deals and steals and trade offs and conspiracies that they hope will quell the crisis that is still reverberating across this country. I keep checking my email and snail mail, but my invitation to those meetings has not arrived. I’m just guessing that no other representatives for homeowners or real people have received any invitation either.
Let’s remember that the last time such a deal was concocted, no real consumers really benefited from the deal….I’m talking specifically about the Countrywide multi-state AG settlement….has any reporter ever done an accounting of how many consumers actually benefited from that “landmark” settlement? Ironically again, the evils sown in that deal with the devil are now coming back to haunt the BofA balance sheet.
I hope that the answer to the “Who’s On First?” question is that our invaluable press corps are on the First Amendment like we all so desperately need them to be. The Wall Street Journal is reporting the wide ranging consequences of Fraudclosuregate, as are almost all major news organizations. There is a growing awareness that Fraudclosuregate is much bigger than those desperate few who are directly involved in those cases. This is an epic battle that pits all of THOSE THAT HAVE…that have taken and plundered and lied and stolen and abused against THOSE THAT HAVE NOT, have not recovered from severe economic depression, have not returned to full employment, have not recovered any faith in the American dream.
These are not abstract issues isolated to the haggard, hobbling few caught in foreclosure hell. How we as a nation deal with these issues will define whatever is left of the America ethic and determine whether there is any place for the united states constitution in this scary new economic and political reality. At the end of the day and in the middle of this mad rush to grant foreclosures, every single American. Every policy maker, every reporter, every legislator, every banker, every attorney needs to ask the question….
WHAT IS THE POINT OF FORECLOSURE?
Why are we so hell bent on moving so quickly to throw our neighbors out onto the street. I know, I know, they’re not paying their mortgage. But have you big thinkers and policy makers tried to get a job? Are those of you who are so quick to crucify aware of the economic realities out there for everyday Americans? For all you judges out there, especially here in Florida…what would we do if all 559,945 foreclosures were granted tomorrow? What would happen to those vacant homes? Those displaced families….and on a practical level….those overgrown yards? Are not our communities better served when we are working at least as hard at figuring out how to keep people in their homes as we are working to throw them out into the streets?
