There is a quiet and powerful revolution that is slowly and methodically making its way across this country. This revolution is a direct response to the White Collar Criminal Anarchy that stretches from sea to shining sea. The revolution is a response to the gross abuses and overreaching by the corporations and special interests that bought and paid for our state, federal and local governments. The direct payoff for their enterprise can be seen everywhere we turn. Wages down, jobs sent offshore. Remaining income stripped away to pay for increased fees on everything. Higher power, higher insurance, higher food and higher banking/commerce fees. While we’re not looking and because those who should protect us work for them, they have tightened the thumbscrews, squeezed down the noose.
The evidence that the United States is governed by a White Collar Criminal Oligarchy and that we are all being squeezed is everywhere but it is on display most acutely on the doorstep of every home in America, and especially those homes in foreclosure. In those judicial foreclosure states where judges still (theoretically) exercise some modicum of supervision over the foreclosure process, we have caught them all smack in the middle of grandest financial crime spree ever perpetrated on a people. Although they’ve been caught in countless ways, every single branch and level of government, every check and balance against crime, greed, avarice, failed and just about every person who could stop the abuse looked the other way. This all would have gone on unchecked until it was too late and our country had descended so far into the abyss that we could not recover but the right people stood up and took notice. Citizen activists and the press started pushing back against the machine and amazing things started to happen.
Although this story starts in Florida, the changes are rippling across the country. The Arkansas legislature passed a bill that requires lenders to collect their documents before filing and tell the truth (gasp). Similar legislation was introduced in Arizona, and while it disappeared under the most curious of circumstances, the controversy over its strange disappearance was a key factor in ensuring that a good piece of legislation passed in Hawaii. Things are creaking along in legislatures across the country and perhaps more importantly destructive legislation is not moving forward.
In the Beginning….
I trace the beginning of this revolution to the final weeks Florida’s 2010 Legislative Session. Consumer rights advocates who were monitoring legislation in the capitol alerted attorneys around the state that the Florida Senate was moving aggressively on a bill that would have turned Florida into a non-judicial state, that is a state where foreclosures were conducted outside the supervision of elected circuit court judges. For the attorneys and activists that had already been seeing first-hand the gross abuses that were occurring in foreclosure courtrooms, the lies, the fraud, the fabricated documents, the shortcuts and violations of basic rights, the thought that even these protections would be eliminated was a full scale crisis that could not be allowed to occur.
Immediately a half dozen attorneys mobilized and reached out to consumer groups and advocates across the state then hatched a plan to converge in Tallahassee to defeat these efforts by the banks to circumvent our Florida courts and turn our state into a non-judicial state. Tour buses traveled all the way from Naples and Miami, converged in Orlando then arrived on the steps of Florida’s capitol and in the shadow of the Florida Supreme Court early on the morning of a key vote. In one of the first key meetings of the morning, a small group met in the office of the senator who was the sponsor of the bill. The meeting was tense and frankly hostile. This senator specifically mentioned his bank contacts and the heavy influence he was under to pass this bill. He was totally opposed to everything we said and committed to bringing his bill forward”¦
I spent time in the Capitol years ago as an aide an analyst so I still have a few friends that know where the bones are buried. We sat down mid-morning and she told me, ” Don’t worry about this bill, it’ s going nowhere!” Huh? How could she be so sure? That’s when she directed me to a Senate analysis that contained a fiscal impact statement. You see, Florida’s entire court system is funded like one of those coin-operated car washers. The lights will stay on and the salaries of judges and staff only get paid if filing fees keep being paid because those filing fees””and not a dedicated funding source””return back to fund the day-to-day operations of the court. The bill was dead on arrival because a disproportionate percentage of the budget or ALL COURT FUNDING was now coming from foreclosure filing fees. In short, the economic impact of turning Florida into a non-judicial state would deprive the courts of the filing fees and funding needed to keep the lights on. She was right”¦.Florida was not going to turn into a non-judicial foreclosure state”¦at least in the 2010 legislative session.
The Money Changers in The Temple
Later in the day I bumped into an old friend from law school. She was scurrying (or slithering) around the Rotunda with all the other lobbyists. In the final days of every legislative session, there is a frenetic energy of tension and chaos on this floor, everyone peering up at the television screens, thumbing Blackberries and pecking away at laptops. There is a marked difference between the Senators and the Representatives. The Senators move slowly, imperial like and always with an aide or a flunkie in tow. The Representatives have no flunkie biting at their ankles and they sort of ping pong across the floor. Surveying the scene, a lobbyist friend shared with me all the sophomoric gossip that is a key element of lawmaking in this country. Forget about your notions of genteel and serious deliberations, the legislative session is more like a middle-aged spring break for many of the shucksters we elect and send to our state’s capitol. Except that anymore these elected leaders”¦particularly the Representatives, are not even middle-aged”¦.they’re baby faced and look like they just walked in from one of the many Florida State frat houses that lie a few blocks from the capital.
So after the brief pleasantries and I explained that I was fighting foreclosures and was in town to fight the non-judicial foreclosure bill, she got all excited, whipped out her tracking sheet and showed me how one of the groups she was working for had secured millions of dollars in funding to help solve the foreclosure problem in Florida. I didn’t fully appreciate the significance of the conversation at the time, but this was the first time mention of Florida’s now infamous Foreclosure Rocket Dockets. (I’m fairly certain I remember she said there was also some funding as part of this appropriation that was supposed to go to legal aid groups across the state, and while that money ” POOF!” disappeared.)
The Original Sin
From the beginning of my conflict with Florida’s Rocket Docket, I’ve been vexed by one dark and nagging question. How is it, that at the tail end of Florida’s 2010 Legislative Session, while the Legislature was cutting budgets for critical areas like cops and firefighters, the negotiators found $9.6 million dollars to fund Florida’s Foreclosure Rocket Dockets? Who were the lobbyists and staff that had enough juice to preserve this very targeted funding through bitter last minute budget battles when long-standing and crucial programs were being cut across the state? Whose sacred oxen were traded or gored so that this Constitutional Trojan horse was allowed to roll right in to the middle of our judicial branch?
The only explanation I’ve ever heard was that the courts had been begging for more funding for years and that this funding was just a response to those long pleaded for funds, but when there are critical areas of need throughout the entire court system and when the funding for the entire judicial branch amounts to less than 1% of the entire state budget, this one time shot in the judicial arm made no sense at all. And while this one time funding made no sense from a public policy perspective, it certainly made dollars and cents, millions and millions of dollars all funneled right back to the law firms that profit from foreclosures. I have objected to the Rocket Docket program from the beginning and this was the original sin. If programs and initiatives are going to be implemented, they should be done in public, in committee, with full discussion and debate before the people who pay for them””the taxpayers, not cut together in some smoky back room of budget negotiations.
The Fake Out- The Payoff
When courts from across the state first reported on how they had used the money doled out to fund the rocket docket by the legislature, the figures were extraordinary. Senior judges manning the controls of rocket dockets from across the state managed to grant more than 64,000 summary judgments in the few short months after Rocket Docket LIFTOFF! Multiply that summary judgment number by the average attorney fee earned by the foreclosure mill of around $1,200.00 and you can see that the investment of $9.6 million of tax public dollars generated a massive payoff. But I’ve got a real problem with targeting my tax dollars to foreclosure mills, the majority of which are or were under investigation by Florida’s Attorney General at the time they reaped such an obscene profit from the people’s money.
Some recoil now at the term ” Foreclosure Rocket Docket”, but the term was coined by the architects of the state’s first rocket docket, down in good “˜ole Lee County, Florida. No need for me to provide colorful descriptions of how the Rocket Docket functions down there, you can read an exciting and detailed narrative in the form of a 64 page lawsuit that was recently filed by the American Civil Liberties Union. The ACLU lawsuit is an indictment of the systemic problems with these star chambers but before they filed, I had formulated a challenge to the Constitutionality of these courts based on the factors articulated in several Supreme Court cases, Physician’s Health Care and Wilde v. Dozier.
Suffering without Suffrage
As articulated in my challenge, the fundamental problem with courts manned by Senior Judges can be summed up in one word”¦.SUFFRAGE. Suffrage is a pillar of our entire form of government and a right which we must all jealously and righteously defend. Suffrage is the absolute right that every American has to demand that his government is accountable to the governed. Suffrage is commonly associated with voting rights, but the concept applies to all of government. The check against the overreaching of an imperial state is our ability to vote the regime out. In Florida, our Circuit Court Judges are called upon to make tough calls. They are elected and they face periodic approval from the voters. These judges are most often confirmed by voters, but occasionally, their judicial handiwork raises the ire of voters and they are not confirmed. This shows the critical function of electing, then periodically affirming judicial service. Voters are deprived of this fundamental right vis a vis senior judges manning the controls of the foreclosure rocket dockets.
The foreclosure crisis is a catastrophe, a slow moving train wreck that has been playing out over years, and will continue to play out and with countless parties who bear the blame for all that has gone wrong. But our circuit court judges have the power and position to make the wrong right, to stop the momentum of fraud and criminality and wrong dead in it’s tracks. Our circuit court judges could have been the circuit breakers who could have (and should have) shut down this out of control machine that now undermines the credibility of our entire judicial system. There is no debate or dispute anymore”¦we all understand that the foreclosure machine went wild and out of control and that courts across this county entered judgments based on patently false, inaccurate and sometimes criminally fraudulent evidence and this now represents a very real crisis in confidence in our judicial system.
This all became apparent long ago, but rather than stopping all this dead in its tracks and forcing these Plaintiffs to get the job done correctly, the machine was allowed to spin wildly out of control. I ask the question, would we all not be far better off, would our court system and our entire country not be far better off if our judges had merely flipped the switch and turned this machine off when it became apparent that the machine was out of control?
The Rocket Docket- My Maiden Voyage
I will never forget my first experience with the Rocket Docket”¦.and I don’t mean that figuratively. You see, I had a court reporter to record the whole experience so it will exist forever. On my first morning, I was prepared to appear before one of the judges who I knew had heard these cases for years. I was sure the judge would immediately recognize the serious problems with the case and send the Plaintiff packing. But when I arrived in court, it was not the courtroom I had come to recognize, it was a wild and messy place, so frantic and chaotic that the court reporter didn’t get the first bit of the argument”¦the transcript picks up when I am full into an argument.
What the transcript doesn’t capture, but what was apparent from the moment I stepped before the court, was that it was absolutely apparent that the judge recognized only one option”¦.GRANT SUMMARY JUDGMENT. The problem is that in this case, Summary Judgment was totally 100% not even close to an option. A court cannot grant summary judgment if just one fact is in conflict and in this particular case I had drafted 33 pages worth of argument and facts”¦.but none of that matter”¦.SUMMARY JUDGEMENT GRANTED was all the court could say”¦..and this just drove me INSANE”¦because the court just could not grant summary judgment in this case”¦.it wasn’t even close. But I had lost, the court had spoken”¦.judgment was granted. But my job is to protect and defend not just my client but the whole court system. The oath I took when I became a lawyer requires me to protect and defend the Constitution and what had just occurred was an abject, direct and serious attack on the Constitution. So I immediately asked to take the file before the elected judge who was assigned to the case. This dispute set off alarm bells and the machine started smoking and seizing up, but when I got in front of the elected judge it took the judge about two nano seconds before he agreed with me”¦.this case is not even close for summary judgment”¦.so improper summary judgment VACATED.
The rocket docket, both in conception and especially in execution, was and is repugnant to the basic principles and protections established in our state and federal constitutions. These kafka-esque star-chamber courtrooms were means to justify the end result”¦grant foreclosures”¦.due process be dammed. Proceedings were held outside the pesky glare of the public and the records of the proceedings were jealously guarded by staff who knew their task was to keep the machine moving”¦and to fight anything and anyone that interfered. And these are not just my impressions, remember that no less an authority than the Chief Justice of the Florida Supreme Court was compelled to issue a directive to all courts reminding them that open courts and open records must be respected”¦even in the rocket docket.
The rocket docket, both in conception and especially in execution, was and is repugnant to the basic principles and protections established in our state and federal constitutions. These kafka-esque star-chamber courtrooms were means to justify the end result”¦grant foreclosures”¦.due process be dammed. Proceedings were held outside the pesky glare of the public and the records of the proceedings were jealously guarded.
I am haunted by just how much damage has been done in our state and in this country because this unjust, improper, illegal foreclosure machine has been allowed to run out of control for so long. I am told that there are major investigations occurring all across this country”¦.FBI, DOJ, IRS, OCC”¦an alphabet soup of acronyms. We also know for certain that major lawsuits are now confirming what we already know. But how can you ever make right all the wrongs that have been done? How do you re-assert the dignity and confidence in our court system that has lost its way?
Fighting the Fight- The Revolution Continues..
The important thing to consider is just how big this has all become. They are working feverishly to put the genie back in the bottle, to put humpty dumpty back together again, to close pandora’s box but we are all too far gone now for that to work. All we can do now is labor on, keep fighting through what will be very difficult times. The fact of the matter is that things have gone too far off the charts in this country for things to just quietly right themselves…there just is no easy fix…and so we are left with difficult choices and difficult times ahead…I wish I had faith that we had leaders who would show us the way out of this gnarly wilderness, but they have all been absent so far, haven’t they?
These are dangerous times in this country where our votes and our voices are already drowned out by the checkbooks , the propaganda and the outright corruption of the corporations that have infected every single aspect of our daily lives and which lord over our legislatures at the state and national levels with near absolute power. Fighting to preserve the basic rights that are left is an absolute obligation and a sacred calling for those who took an oath to protect those basic rights, like attorneys. Those who are fighting this have suffered, and will continue to suffer, very clear and very specific attacks, abuses and reprisals because they dare to question the wisdom of the Rocket Docket and the larger attacks we are all under. I will be put on trial for my crimes and that’s fine. It will be a most public lynching. And if they do convict me, it won’t matter because all hope is lost. And after all, in every revolution there are casualties, right?
