Foreclosure Defense Florida

WHAT???!?!?!?!?! A Must Read Order!

9 Comments

  • CASECLARITY says:

    The order states that “Lee County is not requiring that Plaintiff’s comply with Fla.R.Civ.Pro (sic) 1.510(e)”. This is outrageous. The judiciary appears to flaunt its courtroom antics before the public and the legislature to show it does not need to comply with Florida law.

    For those that are not familiar with the rule, 1.510(e) requires that anyone submitting an affidavit in support of summary judgment, and that refers to documents, to attach sworn-to or certified copies of such documents to the affidavit. This requirement completes the sworn statements being made by the affiant. In other words, every part of the affidavit is sworn-to, the documents and the statements made by the affiant. In Florida this is a strict requirement because summary judgment is considered to be a draconian proceeding that deprives a litigant of their constitutional right to a trial, jury or otherwise, if the letter of the proscribed method for summary judgment is not followed to the letter. The legal footing for the summary judgment proceeding is based on advancing before the court facts that are undisputed, proven by sworn-to testimony and other evidence (such as documents). When the facts proving the claim are crystallized, that is they are undisputed, the court is then free to apply the law to these facts and enter judgment. Florida law allows judgment to be entered by summary judgment because the safeguards attended by the strict procedural requirements of rule 1.510, and all sub-parts, protects the due process rights of the non-moving party.

    A plaintiff’s witness can swear to any facts in an affidavit, subject to the penalties of perjury. However, allowing a plaintiff to make sworn statements regarding reliance on documents that are not attached to the affidavit or not sworn-to leaves the defendant exposed to judgment in direct violation of rights to due process because the documents supporting the affidavit are unknown and/or unauthenticated. It has been widely known for some time that Florida judges routinely allow foreclosure plaintiffs to side-step this requirement in granting foreclosure judgments. Now, it appears that the practice has become the norm and openly so. If the order entered by Judge James Thompson is representative of the mindset of judges in Lee County, then, the judiciary there has by practice trumped the authority of the legislature. Or, at a minimum is thumbing their nose at the law enacted to protect the constitutional rights of every litigant subject to the court’s authority.

    This begs the question about whether this practice of exempting plaintiffs from compliance with Rule 1.510(e) extends to other types of disputes. For example, what happens when the dispute is about an insurance matter, construction, securities, or any other contract dispute? Does the plaintiff get to pursue and obtain a summary judgment by submitting affidavits without sworn-to or certified copies of documents referred to? The practice is akin to allowing a judge to sentence someone to prison without anyone bringing forth evidence that has been authenticated ““ or, merely referring to evidence that is never shown. Could anyone trust a judiciary where the accused could lose even if no evidence is brought against them? Would you feel safe? The practice is without legal, practical or even moral support and must be immediately discontinued.

    Most perplexing is the lack of uniformity among Florida courts. Just last week Chief Judge Peter D. Blanc, of the 15th Circuit, entered an administrative order requiring that contents of affidavits filed in support of motions for summary judgment include ” copies of payment records upon which the affiant relies to support the motion”. How could the judges of this state be so far apart on these procedural safeguards? For those of us looking at this from the front lines it appears as though Florida is like the wild, wild west.

    If anyone holding public office still cares this is the time to bring this madness to a halt. Floridians are losing their property and their rights without the benefit of safeguards that have been carefully engrafted into our constitution and the fabric of laws of this state. If this problem is relegated to one county, then, it is time that the leaders of this great state get that corrected immediately. There has already been so much loss of confidence in the judiciary’s ability to discharge the duty to dispense justice with fairness and impartiality that few believe there is any morality and righteousness left. It is way past the time for the real leadership of this state to stand up and begin restoring faith in our system of justice. A place to start is with public hearings on the effect of improper legal proceedings in mortgage foreclosure actions. The hearings should ask, among other questions, whether Florida judges upheld their oath of office, dispensing justice with impartiality and fairness in cases where litigants are facing foreclosure. No doubt that public hearings will reveal a mountain of evidence supporting a negative answer to this question.

    Does anyone overseeing the judiciary have the intestinal fortitude to bring about change to these practices offensive to ur constitution? Enough is enough.

    TIME TO HEAD BACK TO TALLAHASSEE.

  • smtblnde says:

    Unfortunately, lawyers are reluctant to file JQC complaints (especially against judges they routinely appear before.)

    Your comparison with MLK’s struggle is right on point. I have never read so many rulings that violated due process since school bussing.

  • Liberty and Justice for All says:

    I live in Lee County and have been in front of this same Judge. He dismissed my case based on the merits and now he has not sign off the Final Order or the Final Disposition! What the hell? This is not shocking to me anymore! Judges are making up the rules as they go along and it’s disruptive behavior is going to hurt every citizen in Lee County. To say this document is about to go ‘viral’ is an understatement.

  • litgant says:

    Oh my God! The plaintiff does not have to comply with the Florida Rules of Civil Procedure. It is kooks like this who have been running the rocket-docket. The rule of law is set aside and the court is run by the rule of of prejudice. Now, where in God’s name is the Chief Judge of this circuit? This is the kind of shyster judiciary that has perverted justice in Florida. This is as toxic as it gets. Was the Pro Se defendant beat up here or what? The Florida Bar has a duty to step in here as well as the Supreme Court. This judge should be disbarred and turned into a paralegal.

  • Blue Floridian says:

    Wow! We knew that the lawlessness had infected the law firms and the banks. Now we know that that particularly branch of the judiciary is infected with lawlessness also. I think the Supreme Court would be very interested in learning that Lee County is exempt from the Florida Rules of Civil Procedure. The Judge has set up an automatic appeallate issue as well as has shown his bias against the Defendants. It’s JQC time.

  • TrickleUp says:

    I sat in on Judge Starne’s court yesterday to watch the foreclosure hearings. One of the few attorneys for a defendant was arguing against granting the bank’s summary judgment. The D’s lawyer brought up the lack of sworn affidavits attached to the motion and the judge calmly informed him that was a non-issue. The lawyer just gulped and went on with his other arguments. However, the judge did deny the motion based on the failure of the bank to delineate the chain of title, even though the bank’s attorney argued that the MERS assignment satisfied that. But the mortgage had been securitized and the style of the case was JOE BLOW BANK AS TRUSTEE FOR >>>>>. The defendant’s attorney argued that there was a break in the chain because the pooling agreement required delivery of the note to the trust by Feb 2007 but the MERS assignment was not done until Nov 2009 and stated it was effective back to a date in 2007. Can you beat that? The bank’s attorney argued that the pooling agreement was an agreement between the bank and third parties and that the defendant had no standing to rely on the agreement. The judge almost bought that one, but at the last minute denied the motion. It was close.

  • TrickleUp says:

    Oh, and I agree that that order set up an appellate issue so perhaps we should thank the Judge that any of his summary motions are subject to reversal.

  • frustrated says:

    Has this order been revoked? Has the judge reconsidered? Has the Bar or the Chief Judge or any other authority taken any action regarding this order stating that Lee County is NOT bound by this particular FLORIDA Rule? Is this judge, by any chance, still on the bench?
    Just wondering whether anyone might hold this judge accountable. How about an investigation of this judge and all the orders this judge has signed? Is this judge exempt from scrutiny? Is this disregard of law by this Florida judge what the State of Florida, the Florida Bar, the Florida Legislature, The Florida Judiciary regards as acceptable? … I only conclude that if this order still stands, if this judge still reigns supreme, if the orders decreed by this judge have not been subjected to rigorous, independent review then in effect this judge and this judge’s findings, behaviour and actions comport perfectly with the desires of the above-mentioned bodies.
    I sincerely hope that this judge has been removed from the bench, that this order has been rescinded, that all orders this judge decreed are currently “suspended” pending serious review.
    Law abiding people are getting tired of corruption, of double standards, of abuse of power. Tired of following laws that the rich, large, or powerful can violate with impunity. Tired of waiting for people to do the right thing. Time is of the essence. Do something!

  • frustrated says:

    Every attorney, every judge, every justice, every official – elected or appointed, every citizen of this state who remains silent gives his or her agreement, approval and acceptance to this judge and this judge’s orders and undermines the integrity and the honesty of the entire legal system, procedure and process of this state. This judge did not make a typo, this judge was not unaware of the law or the rules of this state; this judge made a deliberate and conscious decision to violate these rules and laws for the entirety of Lee County which this judge took an oath, both as an attorney and as a judge, to uphold. I most strongly and urgently urge you speak out and do something NOW.

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