Our press, especially here in the Tampa Bay area is doing an excellent job of reporting issues relating to the foreclosure catastrophe, but there are so many more stories that need to be told. I encourage each of you to make contact with reporters in your area and convince them to do these kind of stories. Members of the press are always looking for story ideas and they will jump at the chance to tell compelling stories that their readers and viewers will respond to.
1. The Banks and Lenders are Resorting to Kicking Down The Doors of Homes
There is a terrifying practice that is occurring across this state and across this country of banks kicking down the doors of people’s homes, changing locks, taking property and in some cases terrorizing homeowners and residents. Sometimes this occurs after a foreclosure case has been filed, but often it happens even before a case has been filed. I have several police reports and have dozens of anecdotal stories that document this practice. One of the most disturbing components of this national tragedy is the fact that too often local law enforcement does not recognize this as a crime and then they fail to file charges and arrest those who commit these serious crimes. Judges, law enforcement, attorneys, the press, advocates and all citizens must take notice of this disturbing trend that is casting a dark shadow over our communities. There was a time not so long ago that the Nazis began kicking down doors and violating basic human rights. The world looked the other way, cowardly hoping that it was not going to happen to them. This is happening especially to the less fortunate among us. It’s hard to track down and because law enforcement refuses to take action, it’s a crime that is going unpunished. What kind of country have we become when powerful institutions are permitted to kick down the doors of our homes and go completely unpunished?
2. Florida’s Top Law Enforcement Officer Is Investigating Most of the Foreclosure Mills
The August 10, 2010 announcement that the Florida Attorney General is investigating three more of the top foreclosure mills in the state is a stunning indictment of what the foreclosure process has become and it should be a wake up call to all citizens and especially judges. Florida Default Law, Marshall Watson, David J Stern, Shapiro and Fishman— These firms account for probably 80% of all the foreclosure cases filed in the State of Florida. The fact that these firms are under investigation for serious violations of the law calls into question the entire foreclosure process and it represents a very serious attack on our judicial branch. If any portion of the allegations are proven true it will have far reaching consequences on our court system for decades to come. Every judge in this state should be asking themselves, “How will I feel about entering this foreclosure judgment against my neighbor if it is later determined that the law firm pursuing the foreclosure is guilty of unfair and deceptive practices?” What kind of country do we live in if our courts have been compromised and co opted by attorneys and law firms who have exploited weaknesses in our legal process?
3. Foreclosure Rocket Dockets
The Florida Legislature has placed great pressure on our courts to clear the foreclosure docket and our courts are responding in part by implementing so called “Foreclosure Rocket Dockets”. Given the abuses that the foreclosure mills are being accused of, it is highly inappropriate to implement a judical process that is a short cut of the existing rules and structure. If anything we need to slow down the foreclosure process, give our judges far more time and the independence they need to carefully and thoughtfully review each case that passes through their chambers. And while I respect our senior judges, I am concerned about the Constitutional issues of having non elected officials judge cases that have such profound consequences. The Florida Supreme Court recently issued a statement that they intend to clear 65% of the foreclosure cases from the docket but I question the judgment in doing this when a) those responsible for these cases are under investigation and b) who will move into the foreclosed homes and c) the beneficiary of these foreclosures are the federal government and foreign interests. The St. Petersburg Times recently did a story on foreclosure rocket dockets trumpeting the fact that a senior judge was hearing 100 cases a day. The real story that could be done in every single county across the state is to examine those 100 cases carefully and consider the impact on the system when fraudulent assignments, faked affidavits and fundamental documents are questionable. These 100 files are prepped up by court staff before they are presented to the judge as “ready to sign” files. How many files are returned or rejected before those 100 are culled down?
4. Mercenary/Free Lance Foreclosure Mill Attorneys
The practice that has devloped in courtrooms across the state is for mercenary/free lance attorneys who work for all of the foreclosure mills at once to come to court standing ready to argue whatever case happens to be called. More often than not, they are not carrying with them the entire case file for which they are demanding summary judgment—cases for which some nameless, faceless lawyer has made affirmative representations to the court that no material disputed facts exist. The mercenary attorney is merely in court with the singular purpose in mind….to put his career on the line swearing to the judge that all the facts are correct and that whatever firm has filed the case has done it correctly and that the Plaintiff named in the lawsuit is entitled to throw the defendant out in the street. This is problematic on so many levels, primarily because these attorneys have no idea what the facts are in the case and whether the Plaintiff has any right to the foreclosure at all. This assembly line perversion of a court system is a disgrace to the practice of law. What has the practice of law become when attorneys no longer are required to have any knowledge of their cases, much less any contact or real representative relationship with the client?
5. Attorneys From Foreclosure Mills That Appear by Phone For Hearings
Any legal process is predicated upon the attorney being in a position of authority with his client so that the attorney can encourage his client to accept settlement terms that the client may not otherwise be inclined to accept. At a minimum, the attorney should be prepared to meet with opposing counsel or with the defendant to try and resolve matters prior to hearing and they should at the very least be prepared to speak intelligently with the judge about the case. In far too many foreclosure cases, the Plaintiff’s attorney is not in a position to communicate with his client and has real clue what is happening with the case. In other cases, the attorney on the other end of the phone has no idea what is happening with the case. Telephone hearings in contested cases perpetuate the degradation of the practice of law and should not be tolerated when this privilege is abused. Just yesterday I sat in court and watched homeowner after homeowner tell the judge that they were in a repayment or that the lender promised they would stop the foreclosure. The foreclosure mill attorney had no idea and could only suggest that both the pro se defendant and even those who were represented by an attorney should contact the lender directly. Our rules of civil procedure forbid such contact and as the judge noted, we should not just throw the rules of civil procedure out the window because this is foreclosure court.
6. Sewer Service/Fraudulent Service of Process
The subpoenas issued to the foreclosure mills by the Florida Attorney General seek information about the process servers who are commissioned by the Plaintiff’s attorneys to personally serve Defendants in a foreclosure case with the lawsuit. In an unreasonably high percentage of foreclosure cases, these process servers swear to the court that although they have made a diligent search, they are not able to locate the defendants in the foreclosure case the plaintiffs then proceed with the case via constructive service or service by publication. I recently had a $1.5 million dollar foreclosure judgment tossed out and I suspect that there are a great many of foreclosure judgments and cases across this state which are void due to the improper service of process phenomena. Our courts should carefully examine every single constructive service case and take serious action against the parties who have made improper affirmations about the location of defendants to the court.
7. Fraudulent Assignments of Mortgage/Endorsements/Affidavits
The national media has begun to cover the emerging story of Plaintiffs and their attorneys who are forging the documents they need to speed through their foreclosure cases. Florida’s Attorney General is specfically investigating how the key evidence the foreclosure mills need to win their cases is being produced. We know that in many cases, the affidavits and assignments are actually produced by the attorney who is pursuing the case. This is a staggering violation of long-established court practice and case law which forbids an attorney from producing out of thin air the evidence he needs to win his case. There is no other area in the law where courts would knowingly allow attorneys to introduce evidence that they have created in order to win their case and yet, because this is “only” foreclosure law courts are allowing the practice to go on unchecked. In still other cases, the documents are produced on behalf of non-existent or defunct companies by individuals who have no connection with the company purporting to execute the document. In other widely-reported cases, the documents could not possibly have been executed on the date they were allegedly executed due to the date on the notary stamp. There has been very little consequences for all of this fraud and misrepresentation to judges, but the long term consequences for our justice system will be profound and wide reaching.
8. The Shadow Plaintiff/Hidden Plaintiff/Fake Plaintiff
Rarely are foreclosures brought in the name of the lender or corporation who actually has any real interest in the mortgage or the property. Rather, the lawsuit is brought in the name of a servicer or other straw party which conceals the identity of the real party in interest. There is an alarmingly high rate Ex Parte Motions to Substitute Plaintiff, Assignment of Bid and changing the name of the party that appears on the Certificate of Title after a foreclosure sale. Determining the real identity of the parties that are taking title to billions of dollars of property is an absolute requirement to understanding the scope and magnitude of this current crisis, but it is being widely ignored all across this state and across this country. The dizzing array of Plaintiff names and entities is impossible for any attorney to wrap his head around. If you push hard enough in virtually every case, you will find that the Plaintiff named in the foreclosure lawsuit has no real connection to the case. All across the country judges are granting billions of dollars in judgments and property to Plaintiffs yet they have no idea who they are granting judgment to….this is an unprecedented commentary on our court system and on our judges because they are becoming complicit in the crimes that have been committed by Wall Street and which continue to be committed in our courtrooms every day.
9. Foreclosure Cases Stalled and Foreclosure Cases Cancelled
While much attention is focused on cases where a homeowner defends the foreclosure case an even more interesting phenomena exists in the number of cases that stall out or do not proceed when no defense has been raised at all. While some incorrectly assume that these cases have stalled because some workout has been reached with the lender, I believe there is a very high number of these cases where the Plaintiff has just abandoned the case either because they do not have the evidence they need or because the shadow Plaintiff named does not want to proceed with the case. Our courts that are facing such pressure from the legislature and elsewhere to clear their dockets should be focusing on these stalled cases and effectuate dismissals of those cases rather than working to throw homeowners out of their homes.
10. Judges Refusing Public Access to Courts
An open and accessible judicial process is a fundamental freedom that is being diminished in this foreclosure crisis. Reports are rolling in from all over the state that judges are refusing to allow members of the general public to witness public hearings and that judges are refusing to grant hearings to defendants in foreclosure cases that are not represented by an attorney. Each of the judicial circuits across Florida are establishing ad hoc procedures and some judges are enforcing rules that prohibit parties from accessing their courts and which may prevent members of the general public from viewing these proceedings. This is another fundamental breakdown in our court system and a serious violation of Constitutional rights that cannot go unchecked. All court proceedings must be open and accessible to all members of the public and the media and judges need to be reminded of the vital Constitutional role they play in every single case, especially in the foreclosure docket where real rights are at stake.
