Courts across the country have been granting banks foreclosure when they have scant evidence or documentation to support the granting of foreclosure. Let’s be clear what’s happening here. When a judge grants a Plaintiff foreclosure, that’s a claim that potentially puts hundreds of thousands of dollars in that Plaintff’s pocket. Not so long ago, it was relatively clear that the Plaintiff was the party entitled to collect the money–their name was on the loan docs and the borrower made their payment to that lender over the course of the loan. It was also relatively clear how much the Plaintiff was owed. The Plaintiff kept the books and they largely did a fair job in keeping and presenting those records to the court in order to get their judgment
An On-Going Epidemic of Affidavit, Assignment and Evidence Fraud on The Court.
In response to the massive wave of foreclosure business, Plaintiffs and lenders have started churning out completely improper work product that does not fulfill the basis requirements of competent legal practice. They are also churning out work product that is fraudulent and completely without any factual basis…i.e.
- If the Plaintff’s firms need an assignment of mortgage to give their Plaintiff the right to foreclose, they don’t bother getting it from the party that owns the mortgage, they simply create a fraudulent document and file it with the court;
- If the Plaintiff’s firm needs an affidavit to support how much they claim to be owed by the Defendant they do not get it from a source that is competent to provide that testimony and they do not attach any documents to support the amount claimed due as required by law, they merely have a nameless face sign an affidavit that says any old thing and submit that to the court;
- If the Plaintiff’s firm needs to get formal service on a Defendant, sometimes they don’t wait around for the process server to actually track that person down, they just lie say they attempted to get service on the person and file that lie to the court. (And when the process service company is owned by the Plaintiff’s firm, they’ll charge exorbitant fees for doing so.)
An Unfair Burden on The Judiciary
Anywhoo, the point is we’re all aware of all this conduct….and so much more. Unfortunately the judiciary is just bursting at the seams with so many new cases that they just cannot keep up. Their staff are just overwhelmed…the judges cannot possibly be expected to render the best legal work they expect of themselves, but they’re trapped in an uncomfortable and untenable situation. In partial response, the courts are adopting new procedures that will be very damaging in the long run….like summarily passing cases through without much actual review or consideration.
The Result of The Unfair Burden on the Judiciary- Unsupported Judicial Opinions
The net result of the pressure placed on the judiciary is bad orders and bad title work and opinions coming out. The Second DCA just released their BAC Funding v. US Bank opinion. That opinion shuts the door on many of the bad processes and procedures that are now plaguing courts in this circuit and others. The reply brief that was submitted in that case illustrates what harm can come when Orders of the court are issued without proper hearing. In this case a Summary Judgment of Foreclosure was entered without a hearing. Although there were many problems with the file from the outset and both sets of attorneys new this, the trial court had instituted a process of not bothering to hold hearings on these cases. The results are the trial court entered judgment when they should not have…and now we’ve got a wonderful appeal.
The entire BAC Funding Brief can be found here it is a clear and concise illustration of what goes wrong when courts engage in summary procedures without considering important facts. I’ve previously complained about ex-parte Motion to Dismiss Denial practice because I’m concerned that our courts will face much greater problems going forward if they respond to the overwhelming increase in case loads with summarily dismissing cases. I have profound respect for our courts and want to help them work though this crisis without causing greater problems down the road.