Is An American in Foreclosure Entitled To Due Process or Fairness From The Court in a Foreclosure Courtroom?

The American financial system is going to collapse.

If not in the next few months, it will do so eventually.  This is not a political statement, an opinion piece or argument. It’s a statement based on the cold, hard, universal and inescapable truth of math and numbers.  After the 2008 collapse of the world economy, not only were no new controls put in place…incredibly, the United States government allowed the entirety of the banking and financial sectors to become even more wild and out of control.  Think about this statement for a moment:

The banking and financial systems that exist today are far more dangerous, overextended and out of control than they were in 2008!

Rather than reduce or further regulate the gambling and risk taking of the financial sector, the derivative exposure of the chartered banks and institutions has expanded many times over since 2008.  At the very same time, the foundations upon which the financial system are based have crumbled…..there are fewer jobs, less output, much, much greater societal stability.  Add to this an increasingly violent, desperate and frustrated population.  A recent poll by Pew Research found that only 26% of people trust the federal government.  And of course all of are thinking,

What’s with those 26% of people that trust the government…they must not read.

Why should any thinking person trust a government that has gown increasingly corrupt, reckless out of control and failing in its core mission to protect not just the individual American people, but protect the Union of American states, protect the institution of American government?  The nation’s financial system is about to be rocked again.  Rocked in very big, very bad and very traumatic ways.  The arguments over government shutdown are really just the smoke signals of a coming fire that is going to rage from Wall Street, right down main street and terminating on your street.  This truth is inescapable.

So what does the collapse of the American financial system have to do with foreclosures in Florida?

Foreclosure courtrooms are the manifestation, at very personal and granular levels of all that is wrong with this country.  Let’s just get one point off the table right away….Yes, most people in foreclosure have indeed not been paying their mortgage.  Some have real reasons for not paying.  Death, illness, family destruction.  Others are making business decisions to not pay mortgages so that they can more fully participate in America’s consumer economy….avoiding a mortgage payment allows them to buy consumer goods that keep those sectors of the economy bubbling along.  And now that we’ve gotten that out of the way, let’s examine the far more important procedural and technical problems that are happening in courtrooms all across this country.

Foreclosure cases are in shambles, Producing Chaos in Foreclosure Courtrooms

The majority of time spent in foreclosure courtrooms is not spent responding to motions or issues raised by defendants, rather the time in foreclosure courtrooms is spent with Plaintiffs trying to correct all the lies and the inaccuracies in their pleadings while courts and judges try to decide just how much wiggle room and flexibility they should grant to the Plaintiffs who have screwed their cases up so badly. In my estimation, courts are bending over far too much to apologize and ignore the mistakes and misdeeds of the banks that have created such chaos and damaged threatened the national security of these United States of America.

The chaos that exists in foreclosure courtrooms is evidence of the damage and threats to the national security of the United States of America caused by the financial services industries….and it’s seen in courtrooms every single day….

1. This residential foreclosure case began when Plaintiff filed its initial complaint on 10/16/2009.   Defendant filed her Motion to Dismiss, which motion alerted Plaintiff to the standing and evidentiary problems which persist to this day, on 11/18/2009.  Plaintiff filed an Amended Complaint, which only made worse the underlying pleading defects, on 3/23/11.  Defendant filed a Motion to Dismiss the Amended Complaint and when that was denied, filed her Answer and Affirmative Defenses, which again alerted the Plaintiff to fatal pleading and standing problems, on 3/4/23.  In response, this court entered its Order of Referral to Magistrate and Order Setting Trial on 7/26/13.
2. On 8/27/13, Defendant appeared, fully prepared to defend her case, which was tried before Magistrate.  After preliminary matters were heard, the Plaintiff opened their case, their lone witness was sworn, and the Plaintiff began attempting to introduce evidence and testimony from the witness.  A court reporter was present at this trial and the transcript will be filed along with this motion.
3. Defendant began asserting objections and it became clear, rather immediately, that the Plaintiff was not prepared to present their case before the court. In response, the Honorable Magistrate took the extraordinary, and in your undersigned’s opinion, improper, step of continuing the trial.  Your undersigned repeatedly and vociferously objected to the Court sua sponte offering, encouraging, coaching, and then granting the Plaintiff a continuance when it became clear that Plaintiff would not be able to meet the basic evidentiary threshold necessary to get any of their documents admitted into evidence.  As specific grounds for the articulated objections, your undersigned asserted prejudice and fundamental unfairness to Defendant as a party-litigant.  Nevertheless, these objections were overruled; the trial was continued; and a new trial date was set for 10/1/13.
4. On 10/1/13, your undersigned appeared, again ready to defend this matter.  Importantly, your undersigned again objected to the continued trial, citing prejudice, unfairness, and fundamental.  In any event, Plaintiff was represented at the 10/1/13 continued trial date by a senior and very qualified foreclosure attorney with years of experience and untold numbers of foreclosure trials, along with at least two other attorneys, at least two  witnesses and documents boxes wheeled in on a cart.  In fact, your undersigned is well-acquainted with the very competent and experienced opposing counsel, having tried cases against him, including one that has remained pending and on appeal before Florida’s Second District Court of Appeal for more than one year.  The point is that Plaintiff had, at all times, the resources and skill that it should need in order to present its case properly.
5. The Plaintiff’s second attempt at properly prosecuting its foreclosure case began at approximately 2:00 p.m. on 10/1/13.  Your undersigned respectfully asserted then and continues to assert now that Plaintiff, even with its assembled cadre of witnesses and attorneys, simply did not possess the evidence it would need to meet the fundamental elements of its foreclosure case.  By approximately 4:30 p.m., when Plaintiff had not fully introduced any of the evidence that it would need to prosecute its case, (absent those document that your undersigned stipulated to), Magistrate took the extraordinary step of once again sua sponte offering,  encouraging, coaching, and then granting the Plaintiff a second continuance of the trial.
6. Understandably, your undersigned objected furiously to granting a plaintiff in a foreclosure case an incredible three (3) times to try its foreclosure case where it should only need one shot to prove its case!  Indeed, Magistrate’s  own words at the first trial make this point abundantly clear.  There, the erudite magistrate provided that

Well, yeah, I mean, these are all document cases.  So, just like a probate case or any kind of a case like that, unless there’s a problem with standing or a problem with a pre-condition being satisfied — you know, if there’s problems there, those are bad facts, no trial attorney can overcome those bad facts.  But if those elements are not there, and I suspect that in the majority of the cases those elements are probably not there, plaintiff should be able to win every single one of these cases if prepared.

Transcript of Trial, ¶19-20.  Bold emphasis added.

1. As this Court undoubtedly expects, and as recognized by Magistrate, your undersigned furiously objected to a continuance, citing prejudice, unfairness, and fundamental error, which objections were overruled.  A court reporter was again present at this continued trial, but the transcript has not yet been completed, this motion will be supplemented later with the full transcript.
2. No new trial date has been rescheduled because all parties recognized that your undersigned would be bringing this formal exceptions before the court.  Accordingly, the current order before this Court is Magistrate’s Report recommending that the Court continue the trial and this exception .
3. Your undersigned respectfully asserts that the proper disposition of this exception and in fact this entire case is to SUSTAIN the Defendant’s Objection to Continuation of Trial, enter an Order finding that Plaintiff did not meet its burden to present its case given 2 (two) previous attempts, and finding that it would be futile to allow a third attempt at trial because the evidence that has already been marked and submitted to the court would not sustain a judgment in Plaintiff’s name.
4. It should be noted that this exception is not a criticism of Magistrate who showed a command of the subject matter, control of the courtroom, and attempted to be fair to both sides in this dispute.  Rather, this exception raises concerns about systemic or institutional bias that appears to be working against the notions of fair play and substantial justice.  Quite frankly, your undersigned files this Objection in an attempt to prevent the reversible error that will attach if this case continues and if the court granted judgment in favor of Plaintiff.

ARGUMENT

I.                   PROVIDING A PLAINTIFF IN A FORECLOSURE CASE THREE OPPORTUNITIES TO PRESENT ITS CASE IS UNFAIR, PREJUDICIAL, AND CONSTITUTES FUNDAMENTAL ERROR.

        In Correa v. US Bank, 38 Fla. L. Weekly D1703 Florida’s Second District Court of Appeals recently issued an opinion, on facts similar to the case before this court, directing the court to enter an Order of involuntary

dismissal:

Counsel for U.S. Bank should have been fully aware of its burden to reestablish the lost note and fully prepared to meet that burden, yet it made minimal effort to address this issue even after prodding by the trial court. There is simply no reason to afford it a second opportunity to prove its case.  Accordingly, we reverse and remand with directions for the trial court to enter an involuntary dismissal of the complaint.

Bold emphasis added.

1. Your undersigned would respectfully request that this Court should note that not only are the facts from the Correa decision very similar to those before this Court in that the trial court there was reversed where the plaintiff could not meet its burden, but, incredibly, the party that was the subject of that opinion is the very same named plaintiff that appears in this instant case.
2. Fundamental error has also attached to this case because it is undisputed that the Plaintiff did not possess the admissible evidence that it needed to properly prosecute its case at the trial on 8/27/13.  And even when given the opportunity to regroup and try its case a second time on 10/1/13, the Plaintiff still did not have the evidence it needed to successfully try its case, it is of course absurdity to give plaintiff not just a second bite at the apple but a third.
3. Fundamental error “is error which goes the foundation of the case or goes to the merits of the cause of action.”  Sanford v. Rubin, 237 So. 2d 134, 137 (Fla. 1970).  As Judge Altenbernd once observed

Although fundamental error is extraordinarily difficult to define, the doctrine functions to preserve the public’s confidence in the judicial system. Relief is granted for a fundamental error…because the public’s confidence in our system of justice would be seriously weakened if the courts failed to give relief as a matter of grace for certain, very limited and serious mistakes.

Hagan v. Sun Bank of Mid-Florida, N.A., 666 So. 2d 580, 584 (Fla. 2d DCA 1996).  Bold emphasis added,

1. Therefore, while the question of “what is fundamental error?” may be difficult to answer, your undersigned respectfully asserts that Fundamental Error clearly exists when a layperson considers the facts and procedural elements of this case and concludes, “The court just will not let me win this case…will they?  The court is willing to do whatever it takes for the bank to win this case.”
2. And in fact this is precisely what your undersigned asserts is occurring in this case, by continuing a trial not once, but two times and then coaching the Plaintiff on what is required to nudge it closer to a victory.
3. Your undersigned is particularly mindful of the need for Florida’s Courts to be fair and impartial, a principal articulated in the case of McFadden v. State, 732 So. 2d 1180 (Fla. 4th DCA 1999), which provides

We canonize the courthouse as the temple of justice. There is no more appropriate justification for this than the fact that it is the only place we know where the rich and poor, the good and the vicious, the rake and the rascal—in fact every category of social rectitude and social delinquent—may enter its portal with the assurance that they may controvert their differences in calm and dispassionate environment before an impartial judge and have their rights adjudicated in a fair and just manner. Such a pattern for administering justice inspires confidence. The legend on the seal of this court—’sat cito si recte’ (soon enough if right or just)—embossed on the floor in the rotunda of this building, encourages devotion to such a pattern. Litigation guided by it makes the courthouse the temple of justice. When judges permit their emotions or the misapplication of legal principles to shunt them away from it, they must be reversed. The judge must above all be neutral and his neutrality should be of the tough variety that will not bend or break under stress. He may ask questions to clarify the issues but he should not lean to the prosecution or defense lest it appear that his neutrality is departing from center. The judge’s neutrality should be such that even the defendant will feel that his trial was fair.

Id. at 1184 (citing Williams v. State, 143 So.2d 484, 488 (Fla. 1962)).

II.                EVEN IF THE PLAINTIFF IS GRANTED A THIRD TRIAL, THEY STILL CANNOT WIN ON THE EVIDENCE THAT IS BEFORE THE COURT.

1.  During the second day’s trial, Plaintiff’s counsel attempted to introduce evidence and testimony that its corporate representative was qualified to testify to matters related to a note and mortgage that encumber the Defendant’s property.  Counsel for Defendant objected that the corporate representative, an employee of non-party  Bank, had no personal knowledge of the Defendant or her loan and could not testify to any matters outside the business records that were marked, but not admitted into evidence by the court.  Thus, the very first evidentiary hurdles Plaintiff needed to overcome, but which it was not able to do so, was the requirement that the non-party witness show, through admissible evidence, that: (1) its witness had some connection to the note and mortgage; and (2) that Plaintiff itself had some relationship to the underlying note and mortgage at issue in this case.

1. It should be noted that the initial relevance, agency, lack of standing, and foundation matters Defense counsel challenged at the second day of trial were the very same matters contested on the first day of trial on August 27, 2013.  Even more important, these same challenges have been consistently raised by Defendant as far back as its first Motion to Dismiss filed on 11/18/2009.
2. Since the evidence as marked cannot establish these threshold evidentiary matters, a third bite at the apple cannot help Plaintiff and an involuntary dismissal of its action should be entered.