An Open Letter to Florida’s Best Judge

Dear Judge:

Florida’s foreclosure crisis is not getting any better.   In fact, things are getting much worse. Across this state, unemployment continues to rise while the broader economic indicators show continued decline of the overall economy.   And while Floridians on Main Street suffer like never before, the wizards on Wall Street continue to report record profits.   Never before has the economic divide between Main Street and Wall Street been more dramatic,   a contrast that is all the more explosive because those profits are largely the product of taxpayer largess and government intervention.   Wall Street’s obscene profits are a burden our federal government has foisted on the backs of the beleaguered American taxpayer”¦and the time is soon coming when they will no longer willingly bear this burden that they have not consented to.

The measures which have been implemented thus far in this state to deal with the foreclosure cases choking our courts have failed miserably and will continue to prove unsuccessful in dealing with this most profound systemic breakdown.   Foreclosure as it is currently being executed in Florida’s courtrooms violates a fundamentally American ethic.   Americans can take losing a fair fight, but we cannot stand losing an unfair fight when the deck is stacked against us and the other side is not playing by the rules.   Foreclosure in Florida is an unfair fight. Facing a foreclosure sale while you’re pursuing a modification and your lender has expressly told you it was safe to ignore the court case”¦.that’s not fair.   Losing your home to any group or company that’s the target of investigation by this state’s Attorney General”¦that’s not fair.   Losing your home when you haven’t gotten proper service of process or notice of hearings”¦that’s not fair.   Practicing law in courthouses across this state where the rules are either tacitly ignored or expressly rejected by the court”¦that’s not fair.   Fighting both the court and the opposing party on behalf of economically challenged and far weaker clients”¦.that’s not fair.

The systemic problems in our state’s foreclosure courts have been there for years, but our courts have chosen to ignore them as part of the ill-conceived notion that ramming foreclosures through and ignoring law and procedures is somehow good for our state’s economy.   It’s time for that to stop.   Our lady justice is blindfolded, but she is not blind.   She can feel the gross imbalance of power and the inequities weighing out in her hand and in her courtrooms.   And while I find it utterly maddening that more homeowners do not participate or defend their foreclosure case,   their failure to participate does not relieve members of the bar and judges from their professional responsibilities of ensuring that basic rules of procedure are followed and that fundamental due process is provided in every single case.   The foundation of the foreclosure crisis is the sloppy, fraudulent and sometimes criminal document production and business practices that permeated the subprime lending industry and Wall Street.   Now those very same practices have infected our court system.

I recognize that our judges and court systems are overwhelmed but they can no longer ignore the gross abuses that are playing out in our courtrooms across this state.   I must respectfully disagree with our honorable senior and circuit court judges who feel they lack the judicial discretion to weigh evidence and equities in cases before them which are not contested by a defendant.   Florida Statute 702.01 specifically provides that all mortgages are foreclosed in equity.   Accordingly, I believe judges not only have the ability to examine all evidence before them, I believe they have a statutory obligation to do so.   The statutory obligation notwithstanding, the awesome power and responsibility we have invested in our judges demands they exercise judicial discretion to root out the systemic abuses, abuses which are now established as fact”¦more of which are being reported and confirmed every day, including especially testimony before Congress.

My vocal and persistent protests are not lack of respect for the court and for judges, quite the contrary.   I am desperately sounding the alarm and trying to protect our courts and judges from fallout that’s coming when the lid blows off the cauldron of discontent that is bubbling all across this country.   I want our judges and courts to understand that the people are becoming acutely aware of the inequities of foreclosure as it is currently being practiced and I fear these people will look to hold our judges accountable for the misdeeds of the lending industries and their robo signers and lawyers when the investigations are concluded and the full specter of this debacle is finally reported.   The reporters are fanned out across this country and especially across this state.   The systemic abuses they are documenting will send shock waves coursing through our society as Americans, Floridians and international observers wonder, just how was this system permitted to get so out of hand?

The foreclosure crisis was not created by lawyers or by judges, but by reckless and out of control industries, legislators and agencies that have now dumped their mess into our courtrooms and demanded that we solve their problems overnight”¦.without providing the funding to solve those problems and while they are compounding the problems with robo signing, false statements, failed processes and additional failures.   Systemic failures which call into question the legitimacy of our civil court system.   Reporters, bloggers and activists fulfill sacred functions in this country.   In this economic war, these lone warriors and nimble strike teams are fighting the largest and most powerful forces in our universe.   They are unpaid or paid a pittance”¦the reward is not the obscene profits of the institutions they fight..the inspiration is a search for truth, the reward is the knowledge that truth exposed is liberty protected.

In every great crisis there are opportunities and this foreclosure crisis presents the single greatest opportunity the Florida Bar has seen in a generation to show every day Floridians””and the rest of the world””the very highest aspirational goals of our profession.   We are not merely defending homeowners in foreclosure defense, we are engaged in an epic battle to protect our courts, to defend the Constitution and to protect those in our communities from wanton abuses of powerful forces and a system that has gone awry.

The lawyers and judges in this state did not create this crisis, but we can help solve it and in the process earn the respect of Floridians who hold lawyers and judges partly to blame for the continuation of this crisis.   Our judges need to do a better job of communicating that they are not the reason for the backlog in cases and they should objectively report that homeowners and defendants are not the reason for the backlog in cases.   The vast majority of cases that are languishing in our court systems lie there because the lenders cannot or choose not, to proceed with these cases.   It’s time to tell that story, to report those facts.   While we focus most of our time and attention on the cases that are proceeding forward, it will be far more valuable for our courts to independently examine the thousands of cases that have languished for years without a single response from the defendant.   Dismissing those cases will offer a far more accurate perspective on the crisis.

Having exhaustively detailed the crisis it’s now time to start talking solutions.   The first thing we’ve got to do is understand is the vast majority of homeowners want to make a monthly mortgage payment.   Having said that, most are simply unable to afford the full mortgage payment in this current economy.   A deal is a deal and a borrower should pay the bottom line, but the contracts with the American people have been shredded and abandoned by Wall Street, by Washington, D.C. and by the international financial systems that are the dark and sinister forces coursing through our country.   We cannot move forward in this debate and begin making real changes until the full specter of this economic treason, deceit and destruction is fully accepted and acknowledged.

Forget about Washington DC’s mortgage modification efforts, they’re absurd exercises in futility and classic government boondoggles that put millions (billions) of dollars in the hands of the corrupt servicers while doing next to nothing for the Americans who funded the boondoggle.   The structural problems that plague modification efforts are the very same problems that have doomed foreclosure mediations to failure”¦.the lenders are unwilling to make deals with homeowners that will allow them to stay in their homes and which are fair and reasonable under the circumstances.

And just what are those circumstances?   The fact is the lenders that are trying to throw our neighbors into the streets were propped up and pumped full of taxpayer money”¦.taxpayer money provided by the targets of their foreclosure.   The lenders received bailout funds and modification funds and tax incentives and tax breaks and God only knows what else that has yet to be exposed.   And the loan balances they’re negotiating off”¦it’s not the cents on the dollar, fire sale prices they actually paid for the loans, but the full retail price original principle balance of the loan”¦.an absurd negotiating position that has no place in reality and prevents any real negotiation from occurring.

But there is a solution that could begin to address all elements of this crisis”¦tomorrow.   All it would take is for one good and courageous judge to dust off the law books and use a procedure that’s been on the books since 1935.   It’s called Florida Statute 69.021 and it’s a brilliant piece of law that gives our judges all they need to wrest control of this crisis away from the corrupt banks and servicers that have choked up our courtrooms and which are preventing homeowners from obtaining real relief in the midst of this crisis.   This elegant and simple statute gives judges the power to take control of the absurd modification process and start interjecting rationality and reasonableness into the failed modification effort.   Our judges serve the people of the State of Florida and the Constitution of the State of Florida first and jurisdiction over issues affecting real property in this state is vested in the county seat where the dirt is located.   The statute requires no taxpayer funding and provides our judges broad discretion and authority to demand homeowners make payments, then gives those judges discretion to determine who is legally entitled to collect the money that would be held by our courts pending strict proof of the right to recover.   The administrative systems already exist in every single circuit in this state”¦.the newly established mediation programs that are operating at a fraction of their capacity.

So there you have it.   One immediate, elegant, responsive solution to this crisis.   Floridians, the nation and the world in fact are waiting to meet the judge that is willing to take a shot at pulling us out of this crisis and getting us moving in the right direction.

I look forward to meeting you”¦.someday.