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Weidner Appeals: Why Does The Court Work So Hard For Foreclosure Plaintiffs?

By December 30, 2015No Comments

We see it again and again….the courts bending over backwards to assist foreclosing plaintiffs with their cases. Well, in this case, I finally had enough, so we took an appeal.

The whole thing is infuriating, so the whole brief is below….

I wonder if the bank will even get around to drafting any kind of response?

The real problem with “our” courts is they have now conditioned a whole generation of lawyers that this kind of behavior is acceptable.

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.[1] After the court staff confirmed that the Bank’s lawyer had not checked in, the court granted the motion and involuntarily dismissed the case.[2] 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.[1] 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.

[1] Order Rescheduling Trial, September 8, 2015 (App. ___).

 

 

Buckley (2D15-) Initial Brief