And the appellate courts hits just keep on rolling in for WeidnerLaw. This is the case where two senior judges issue competing orders in proceedings which we were neither noticed nor formally advised of. We argued over and over again in the trial court that what was happening was a violation of fundamental rights, not just the technical and specific procedural rights that we spend so much time fighting over.
What happened in all these proceedings disturbed me almost more than any other trial I’ve had…..and I’ve seen really, really disturbing things. What was so wrong about what happened in this trial was it exposed just how much work the court system…(which should be neutral you know) was pushing a case on behalf and to benefit a plaintiff. That’s just not even close to fair and certainly not remotely appropriate. Senior Judge Karl Grube entered an order in a case, an order that was subsequently vacated, and yet another order was entered by yet another enior judge.
Here’s what I said in advising that proceedings were wrong:
Judge, I want the court and I want staff, and ultimately Lakeland to understand what happened in this particular case and why it’s so wrong and an affront to the rights of my client!
Trial courts of this State are not permitted to operate in Kafkaesque Star Chambers rendering decisions without notice and an opportunity to be heard — and it does not make one bit of difference that this is a foreclosure case.
Jarrett C. Buckley (“the Homeowner”) appeals the trial court’s sua sponte non-final, appeal order vacating the final order of dismissal of the foreclosure lawsuit filed by JPMorgan Chase Bank, N.A. (“the Bank”). The Homeowner presents several issues for the Court’s review:
- Whether the trial court violated the homeowner’s due process rights by apparently holding an ex-parte hearing granting a continuance when no hearing was noticed and no attempt was made by the court or the party seeking the continuance to schedule a hearing on the continuance;
- Whether the court violated the homeowner’s due process rights by making findings of fact unsupported by any hearing or evidence
- Whether the trial court had jurisdiction to enter the order vacating the final order of dismissal;
- Assuming that it did, whether the trial court violated the Homeowner’s due process rights when it entered the order without notice and an opportunity to be heard.
THE PLAINTIFF BANK OBTAINS EX-PARTE RELIEF WITH NO NOTICE OR OPPORTUNITY FOR THE HOMEOWNER TO BE HEARD
Most critically, The Bank never filed a notice of hearing and there is absolutely no evidence or record of The Bank attempting to set this matter for hearing. This fact is most important for this appellate court to consider because, as will be described in detail below, a hearing was apparently held, and relief was granted to The Bank, with absolutely no notice or opportunity to be heard on the part of the Homeowner.
As directed in the court’s Order Setting Trial, The Homeowner appeared in court well in advance of the trial, which was to be heard before Senior Judge Karl Grube, formally checked in with court staff and advised that the Homeowner was prepared for trial. After waiting for several hours while the entire courtroom of approximately 20 contested cases was cleared (and after checking in several times to see if bank counsel had checked in), the court called the instant case for trial. As detailed in the transcript, your undersigned counsel alerted the court that Bank’s continuance motion had been filed and then requested a dismissal since no one was there to argue it. After the court staff confirmed that the Bank’s lawyer had not checked in, the court granted the motion and involuntarily dismissed the case. Entirely unknown to your undersigned counsel at that time, and with no notice whatsoever to The Homeowner and with no attempt to schedule any hearing on the matter, Judge Grube entered an order granting the Bank’s motion to continue and rescheduling the trial. The Docket reflects no record of the circumstances under which this Continuance was granted and there are no records or any evidence that provide the Homeowner with any record of how these ex parte proceedings were conducted. It should also be noted that after the Plaintiff apparently obtained this ex-parte relief, there is no evidence (and your undersigned can find no record) that the Plaintiff ever provided or served this Order on your undersigned counsel. The terribly frustrating thing about the ex-parte relief that was granted to the Plaintiff was that your undersigned had good grounds to argue against the continuance sought, the motion and asserted ground for continuance were not well taken and your undersigned was prepared to go to trial on that day. Even more frustrating, your undersigned had on numerous previous occasions on other foreclosure cases been pleading with the court and court staff to adopt formal process and procedure during which the court would hear such continuances, but these formal requests by your undersigned had been rejected. Accordingly and from direct experience where your undersigned knew that continuances would not be granted (especially when requested by a homeowner), your undersigned had no reason to expect any continuance would be heard, much less granted, prior to scheduled trial time. The critical issue for this court to consider is that your undersigned was denied entirely the right and opportunity to make these arguments or any other, because proceedings were apparently held by this court without any notice or opportunity by your undersigned to be heard.
- THE SUA SPONTE, EX-PARTE ORDER VACATING THE HOMEOWNER’S DISMISSAL ORDER, VOID BECAUSE IT WAS NOT RENDERED BY THE JUDGE WHO ISSUED THE ORDER AGAINST WHICH IT WAS DIRECTED
Your undersigned left the court on September 8, 2015 with an Order of Dismissal, which was as reflected in the transcript, entered by the court with full disclosure of all facts. While not reflected in the record, your undersigned immediately that day, served this Order upon counsel for the Plaintiff. The Plaintiff did not respond to this Order, the Plaintiff did not file any motion objecting to this Order and no counsel or any party representing Plaintiff took any action whatsoever relating to this Order. Instead, days later your undersigned received a third Order, this Order signed by a different senior judge, Judge Marion Fleming, this order purporting to sua sponte vacate Judge Grube’s dismissal order. Your undersigned asserts that this third Order was void because it was entered without notice or hearing, it was not prompted by any motion directed by either party and critically, Judge Fleming was a complete stranger to this case and the proceedings. Your undersigned acknowledges that the court the inherent authority to enter sua sponte, ex parte orders, but that authority is limited and was exceeded with respect to this particular Order. What is most troubling about the circumstances surrounding the entry of this void Order signed by Judge Fleming purporting to vacate Judge Grube’s Order is that the docket reflects no motion and no request at all on the part of the Plaintiff or any party to have such an Order considered, much less entered. And yet, with no formal or informal request by any party to consider the matters addressed in the Order, a judge who has no involvement in this case whatsoever, Judge Fleming, is somehow presented a prepared Order which she apparently signs. It bears repeating that your undersigned has no knowledge of how all of this transpired as there was no notice or opportunity to be heard afforded to your undersigned or this defendant homeowner. Upon receipt of this void Order, your undersigned timely and immediately moved to vacated the Order and cancel the “rescheduled” trial arguing, in part, that the trial court’s prior orders were void. At a hearing on this motion, the Homeowner argued before Judge Fleming that the Bank had apparently gotten a continuance the morning of the trial and had failed to alert him. The Homeowner also argued that Judge Fleming was without jurisdiction to vacate Judge Grube’s dismissal order and that a hearing before Judge Grube was appropriate.
- THE COURT FINDS, THERE HAS “ALREADY BEEN ENOUGH TIME WASTED ON THIS ISSUE” AND VACATES THE VOID ORDER
After taking the matter under advisement, Judge Fleming found that while she had jurisdiction to correct an “administrative mistake,” she nevertheless vacated her prior order because “there has already been enough time wasted on this issue.” And then, over two months after he first dismissed the case, Judge Grube entered an order vacating his dismissal order and ordering the trial to go forward on the “rescheduled” date – again without notice or a hearing. At the rescheduled trial, the Homeowner once again argued (before yet another senior judge, yet another stranger to the prior proceedings) that he was not noticed for the initial hearing on the Bank’s continuance motion, a fact particularly disturbing to him because his lawyer had been arguing for months that a formal procedure should have been put in place:
WEIDNER: The one thing I want, Judge, is the Court, and, frankly, staff and Plaintiff’s Counsel, to understand and acknowledge that when there was a continuance heard on September 8, 2015, I was neither noticed, nor was any attempt made to communicate with me.
The reason why I’m bringing it to your attention, and the reason why I want staff to understand, and Plaintiff’s Counsel, is I spent months arguing that if there are continuances going to be argued — if they’re going to be motioned, there should be a procedure to hear this.
And I was rejected and have been for months now. And now I suffer the consequences of all this.
Again, I want Counsel, because there’s some confusion in the record as, perhaps, why they didn’t fulfill his professional responsibilities. There is no evidence, and, in fact, it didn’t occur, where Plaintiff attempted to coordinate a continuance the morning of trial. I just want to make sure that’s clear.
Ultimately, the trial court continued the “rescheduled” trial and the Homeowner timely appealed Judge Grube’s order vacating the dismissal order. With regard to the specific assertion found in Judge Fleming’s Order that there had, “Already Been Enough Time Wasted On This Issue”, your undersigned respectfully takes exception to that comment and would urge this court to take the time to carefully consider the very serious issues that are raised in this appeal. The lawyers and litigants that appear before our courts, whether the case be a multi-million dollar personal injury case or whether it be “merely” a foreclosure case, (that category of cases which have become disfavored by our courts generally) we are all entitled and should be afforded the same rights and respect. And while the record certainly reflects much effort and time spent on this case by the court and your undersigned counsel, the record is entirely devoid of evidence of any time or effort directed at this case by the Plaintiff…the party that is the ultimate beneficiary or all these taxpayer and judicial resources that are being directed at this case. Yes, the facts of this case demonstrate what has become an all too common phenomena in the context of foreclosure cases, namely the court directing more attention and resources at these cases than the party seeking the relief
buckley-2d15-5429-amended-initial-brief
