We all need to be doing our part to help our courts fulfill the directives to get this foreclosure docket moving and get 62% of the cases concluded. The problem we have right now is all of the attention seems to be focused on reaching that 62% goal by granting Summary Judgment. Given the current state of affairs of document chaos that exists in most courts, I believe granting Summary Judgment is not the responsible path to achieve this goal.
First, I believe the foreclosure process, as it is currently being implemented, is so fraught with questionable practice that continued entry of these judgments in many cases is not appropriate from a procedural, evidentiary and technical basis. Second, even if an individual case were ripe for entry of Summary Judgment in so many cases (and certainly on a cumulative basis), it would serve no useful economic purpose to grant Summary Judgment. That home is far better off with the current resident occupying it and maintaining it than if foreclosure were concluded. Finally, I’m convinced that there are going to be a significant number of Summary Judgments entered during this period that should not be entered (and that the Plaintiffs do not want entered) because the Defendants are in formal work out arrangements with their lender. I am concerned that foreclosure sales will be scheduled and Certificates of Title issued before anyone realizes that the entry of Summary Judgment was not appropriate given the facts.
The Real Cause of the Foreclosure Backlog
The far more compelling issues of foreclosure backlog are those files have stalled or been abandoned by the Plaintiffs, either from neglect or because they cannot tie the evidentiary pieces together that are necessary to make a prima facia case for foreclosure. I am convinced that if our clerks culled the docket and researched the files, they could far more quickly (and more fairly) achieve the 62% reduction goal by dismissing cases. In addition to the equitable principles involved, there are important legal and appellate principles involved which argue much more strongly in favor of dismissing the cases and allowing the Plaintiffs to proceed after they have gotten their documentary house in order and confirmed that the file really is ready for foreclosure or summary judgment.
I’ve just finished going through every file in my office and am drafting motions that will help to effectuate these goals….I share with you and encourage you all to examine your files for similar facts and legal issues: