The Florida Supreme Court’s Office of State Court Administrators estimates that there will be 559,945 foreclosure cases pending statewide by 2011. That same office issued a directive that Florida’s trial courts should dispose of 62% of those cases by July 2011. (Full Article Here) Each of Florida’s twenty judicial circuits have ramped up their efforts to clear those cases, but the primary means they have chosen to accomplish this goal–through implementation of so-called Rocket Dockets, may be unconstitutional. (See memo outlining reasons Unconstitutionality and transcript here.
I will continue to argue that if our courts are to maintain any semblance of fairness and equality, the $9.6 million dollars of federal funding should also be used to explore options that would lead to dismissal of foreclosure cases, for reasons such as failure to verify, and this money should also be used to explore common sense alternatives to foreclosure such as those detailed in the article below or to fund the implementation of Florida Statute Section 69.021 Fairness and Standards Committees rather than establishing Foreclosure Gas Chambers which result in the increasing the already obscene profits for the foreclosure mills currently operating in this state. Not only are we railroading homeowners out of their homes to benefit corrupt and unscrupulous plaintiffs that have already benefited from several rounds of federal bailouts and tax breaks on the backs of struggling consumers, we’re using the consumer’s own tax dollars to grease this progress along. I am clearly a partisan activist in this fight, but see Alternatives to The Rocket Docket here for an alternative to the improper and broken system we have cobbled together.
As detailed in the memorandum and case law cited above, I believe the Rocket Dockets as they have been commissioned are improper. We must not allow anyone other than elected judges who are at least theoretically answerable to the population make binding and final decisions in cases of such import. Also, the mere fact that these foreclosure cases have bogged down is evidence that the cases are complex and therefore not appropriate for perfunctory Rocket Docket proceedings. It is important to keep in mind that the vast majority of foreclosure cases are not defended or responded to by Defendants in any way. Accordingly, they should just sail right through from filing to sale right? So why the backlog? The biggest reason is the foreclosure mills cannot even get sloppy paperwork prepared and filed with enough accuracy to make a prima facia case for foreclosure…even when they resort to clearly improper means to (ahem) “create” the evidence and paperwork they need. (Article Here) None of this matters though because no one seems to care about basic elements of our state or federal law…even that outdated, tattered, ignored and forgotten scrap of paper called the united states constitution. (lower case to reinforce its diminished stature)
The Practical Application of The Foreclosure Rocket Docket
The preceding paragraphs addressed the formal implementation of these foreclosure Rocket Dockets. Now let’s talk about how many of the Rocket Dockets function. In a frenzy to meet ever increasing demands to file and proceed with foreclosure cases particularly in 2008-2009, the foreclosure mills were churning out and filing tens of thousands of foreclosure cases across this state every month. These complaints do not fulfill the most basic rules of pleading and do not fulfill the black and white rules of Florida Civil Procedure and yet our courts continue to this day to accept these deficient pleadings….the failure of our courts to police these basic rules of pleading are going to perpetuate a crisis that is only now in the 4th inning by my estimation. The most rampant and widespread pleading deficiency is the failure to plead the capacity of the Plaintiff in these actions. (There is a search function on this blog and if you type in “capacity“, you’ll find hundreds of posts on the subject.) This illustrates what is perhaps the biggest procedural and substantive failing that permeates the foreclosure docket….THE FACT THAT OUR COURTS HAVE NO IDEA WHO OR WHAT THEY ARE GRANTING FORECLOSURE JUDGMENTS TO.
Admittedly, most defendants in foreclosure are not paying their mortgage, but there is not a single homeowner in this state that ever borrowed a single cent from the IXIS 2003 Trust or any other variation of the tens of thousands of trusts, servicers or shadowy entities that are named as Plaintiffs in foreclosure cases all across this state. Some judges are very comfortable condemning homeowners, “What Gives You The Right Not to Pay Your Mortgage!”. But how many judges have asked the question of the Plaintiff, “What Gives You The Right To Collect This Mortgage?” Instead, the transcripts of Rocket Dockets and frankly even Circuit Civil proceedings reveals almost no regard whatsoever to whomever or whatever entity is before the court blithely demanding judgments totaling millions of dollars and taking title to real property all across this state. Keep in mind that foreclosure proceedings are both transfers of debt obligations and transfers of title to real property…real property that was the sovereign land of this United States of America. THE FAILURE TO IDENTIFY WHO WE ARE GRANTING JUDGMENTS TO REPRESENTS A POTENTIAL THREAT TO THE SOVEREIGNTY OF THE UNTIED STATES OF AMERICA.
Sound a little nutty..well, consider this. The Law Offices of David J. Stern is responsible by volume for taking back more real property in Florida than any other foreclosure mill in this state. In the prospectus filed with the Securities and Exchange Commission, this massive foreclosure machine chomping its way across Florida was sold to China…quoting from the SEC filing:
We were incorporated in the British Virgin Islands on February 19, 2008 under the name ” Chardan 2008 China Acquisition
Corp.” as a blank check company for the purpose of acquiring, engaging in a merger or share exchange with, purchasing all or
substantially all of the assets of, or engaging in a contractual control arrangement or any other similar transaction with an unidentified
operating business which has its principal business and/or material operations in China.
and regarding disposing of foreclosed properties:
Currently, DSI LLC provides such services nationwide for a single customer.
I swung off course here a bit, but the point I want to make is the failure of our court’s to at the very least require these Plaintiffs to identify themselves is a very disturbing component of this crisis that has potentially profound consequences in the years to come. But the fact of the matter is many of our courts are not at all concerned with issues such as this. For many judges, the entire inquiry begins with the simple question….”have you paid your mortgage?” Forget about who or what is trying to collect your mortgage. Forget about the fact that many people have in fact been trying to pay their mortgage. Forget about the fact that many of the entities that are trying to collect these mortgages are fabricating their purported right to collect these mortgages under outright fraudulent or at least questionable means. Forget about the fact that oftentimes the Plaintiff that first comes to court swearing that it owns the mortgage is not the Plaintiff that ultimately takes title to the property because along the way an “Ex Parte Motion to Substitute Party Plaintiff” is filed or the Final Judgment is assigned to another party. Forget about the fact that in at least half of the cases, the named Plaintiff is not the real party in interest at all, but rather, Fannie Mae or Freddie Mac really owns the mortgage, but we cannot risk having it disclosed that the Federal Government is seizing more than 250,000 homes across the State of Florida.
In our rush to foreclosure, courts across this state are ignoring both long-established rules of civil procedure that (theoretically) apply to all civil cases filed in our courts and brand new rules of civil procedure that were adopted by our courts to deal with the widespread abuses particular to foreclosure cases. There are many rules that are being ignored, but the biggest and most significant rule that has been utterly and systematically ignored in 98% of all foreclosure cases is the very rule judges should be applying in foreclosure cases. Florida Rule of Civil Procedure Rule 1.510 and particularly and especially subsection (e):
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.
I quite literally have never, ever, ever seen this rule enforced in a Florida foreclosure courtroom. In the thousands of foreclosure cases I’ve seen, I have never seen a sworn or certified copy of the books and records referred to in the hearsay affidavits, not based on personal knowledge submitted by plaintiffs. And here’s the ironic thing. If our courts had been enforcing the application of this rule, it is less likely that we ever would have had the brief Robo Signer controversy. (wow, thank God that’s over….”Move along folks nothing to see here”)
Next, keep in mind that the severe and pervasive problems that have choked our foreclosure courtrooms and called into question the whole legitimacy of our court system have been known about for years. The Florida Supreme Court made up a nifty TASK FORCE. That TASK FORCE met and chatted and specifically identified most of the problems that have now caught the attention of the national press….MORE THAN TWO YEARS AGO. The findings of the Florida Supreme Court are published right here in the SupremeCourtTaskForceFinalReport based on all this fact finding and righteous indignation (THESE FORECLOSURE MILLS ARE OUT OF CONTROL!), the Supreme Court issued a Final Rule that was ‘supposed to clean up the bad practices. supremecourtfinalrule
Problem is the foreclosure mills don’t care about the Rules and many of our courts just don’t seem to care too much about enforcing them. But there are a few courts out there that have read the rules and are listening to the clear mandates and directives of the Florida Supreme Court….
It’s all just so exhausting, and the irony is if the foreclosure mills had simply started following the rules way back when, some of the problems we see now could have been avoided. But who really cares anyway? The Rules of Civil Procedure are Due Process and when the Rules are not enforced, there is no due process….but apparently there is no process due to defendants in foreclosure cases and there is no process due to the process itself either.
Why Do We Even Need Foreclosure Courts At All?
If our courts are not willing to ask any of these questions. If judges across this state are admitting that they are not reading these files and accordingly do not care about any of the answers to these questions, why do we bother having foreclosure courts at all? Why don’t we just permit the banks or entities or shadowy trusts to just go and start knocking down doors, changing locks and throwing people into the streets? The answer to the question is…WE ALREADY ARE. I’ve published several posts and there are examples from all across the country of banks and their agents just kicking down doors anytime and anywhere they damn well please. No one is doing anything at all to stop them. Law enforcement routinely fails to even take reports, much less stop them. In fact, law enforcement provides cover and protection for them to do this when they affirm the conduct and practices and in fact turn hostile and aggressive toward the homeowner (a term that apparently has no meaning in this country) as they recently did to an elderly couple here in Pinellas County. (For examples search “911” or “break in” or “jack booted thugs”. But seriously, if any old Plaintiff will do and if judges are not looking at files or pleadings and if cops are not stopping break ins and seizures, why don’t we just save all the time and money and just turn homes over to the jack booted thugs, the shadowy trusts, the government sponsored entities? My faint notions of a little thing called the Fourth Amendment to the Constitution of the United States of America suggest this should not be occurring, but the real experience on the ground every single day tells me those rights and that nonsense “right” means nothing in this country anymore.
Who’s On First?
Even as I write this, our nation’s top policy makers, legislators, attorneys general, title insurance, banking executives and Wall Street executives are meeting in closed door meetings and working feverishly to hammer out deals and steals and trade offs and conspiracies that they hope will quell the crisis that is still reverberating across this country. I keep checking my email and snail mail, but my invitation to those meetings has not arrived. I’m just guessing that no other representatives for homeowners or real people have received any invitation either.
Let’s remember that the last time such a deal was concocted, no real consumers really benefited from the deal….I’m talking specifically about the Countrywide multi-state AG settlement….has any reporter ever done an accounting of how many consumers actually benefited from that “landmark” settlement? Ironically again, the evils sown in that deal with the devil are now coming back to haunt the BofA balance sheet.
I hope that the answer to the “Who’s On First?” question is that our invaluable press corps are on the First Amendment like we all so desperately need them to be. The Wall Street Journal is reporting the wide ranging consequences of Fraudclosuregate, as are almost all major news organizations. There is a growing awareness that Fraudclosuregate is much bigger than those desperate few who are directly involved in those cases. This is an epic battle that pits all of THOSE THAT HAVE…that have taken and plundered and lied and stolen and abused against THOSE THAT HAVE NOT, have not recovered from severe economic depression, have not returned to full employment, have not recovered any faith in the American dream.
These are not abstract issues isolated to the haggard, hobbling few caught in foreclosure hell. How we as a nation deal with these issues will define whatever is left of the America ethic and determine whether there is any place for the united states constitution in this scary new economic and political reality. At the end of the day and in the middle of this mad rush to grant foreclosures, every single American. Every policy maker, every reporter, every legislator, every banker, every attorney needs to ask the question….
WHAT IS THE POINT OF FORECLOSURE?
Why are we so hell bent on moving so quickly to throw our neighbors out onto the street. I know, I know, they’re not paying their mortgage. But have you big thinkers and policy makers tried to get a job? Are those of you who are so quick to crucify aware of the economic realities out there for everyday Americans? For all you judges out there, especially here in Florida…what would we do if all 559,945 foreclosures were granted tomorrow? What would happen to those vacant homes? Those displaced families….and on a practical level….those overgrown yards? Are not our communities better served when we are working at least as hard at figuring out how to keep people in their homes as we are working to throw them out into the streets?
