Smith Hiat & Diaz, HSBC v Defreitas – The $49,000 Contempt of Court Order on Foreclosure Mill

This just in from Matthew Weidner…


I cannot count the number of times I’ve shown up for hearings only to have the foreclosure mill either cancel the hearing or just not show up.  Often times they fail to notice me at all, but I’ve addressed most of that by requiring that all hearings be set and confirmed with me in writing.  The thing about this Order is, if more judges would issue Orders like this, the whole practice of foreclosure would change overnight!

The most frustrating thing is the unfair treatment between the mills and those of us defending.  If I miss a Summary Judgment hearing, that judgment is granted with no question.  On the other hand, if my Motion to Dismiss is properly noticed and they don’t show up, the hearing is continued.  One more thing, I’m tired of the mills setting Summary Judgment hearings when the case is not ripe for SJ and I have objected based upon that…….oh well, add that to the list.

Continue reading Matt’s post here…

Still waiting on the transcript of the hearing…

As soon as we get it we will put it up…



Smith Hiat & Diaz, HSBC v Defreitas – The $49,000 Contempt of Court Order on Foreclosure Mill

One Response to “Smith Hiat & Diaz, HSBC v Defreitas – The $49,000 Contempt of Court Order on Foreclosure Mill”
  1. James M says:

    A good start. I too am not sure why they should get so many bites at the apple, or why the daily fines don’t start until the end of the month.
    The order looks like it was constructed to prevent an appeal, in that it gives them far more latitude than an appeal court would. Mostly a very public slap on the backside.

    The Court could have required the identification of every time they failed to appear during the last year, in all cases in the district, and in each the record would show if they canceled correctly , and fined them for each and every one. Now that would have sent a shock wave to the mills.

    All that is going to happen is this law firm is going to assign one attorney to handle that county (Manatee) with kid gloves. And the firm will probably continue to proceed with the same bad habits all over the rest of the state.

    For them the fine is just a cost of doing business, and they can continue unabated in all the other counties.

    Should have got them for $500 for every failed appearance.

    What is going on is the mills are playing the SJ slot machine without having to put in any tokens. They keep pulling the handle by scheduling the hearings, if the defendant does not show they hope the court enters the SJ order they have conveniently attached to the motion. If they keep pulling the handle enough times one judge one day is going to grant it with out a hearing, they just have to pull the handle enough times. If each pull of the handle cost $500 this game would end. No law firm would schedule a SJ hearing without having their ducks in a row.

    HOW TO CURE THIS: Change the Fl. R. Civ. P. or local rules …..
    To prevent a case from going to trial, by short circuiting the process through a SJ hearing, the moving party should have to post a cost bond with the court of $500 with the notice of hearing AND a sworn affidavit that they have scheduled the date and time with the non-moving party, or (with detail) explained why they are unable to schedule with the opposing party and asking the court to order the date and time. Failure of the moving party to appear at the SJ motion, or falure to have documents in support served 20 days in advance leads to AUTOMATIC denial and defend paid the $500 bond for their time in appearing, AND an order for fees and costs in preparation of the Response to the SJ motion, including costs for things like taking the depo of custodian of records in prep of defense of SJ motion.

    Such a change in the rules would radically reduce the work load on foreclosure courts for a SJ motion would not be noticed until Plaintiff was completly ready to proceed and they would have a real incentive to turn up.

    A second change, you should not be moving for a SJ unless the record shows there are no materiel facts in dispute. It is not meant to be a method of discovery or to test the non-moving parties trial strategy. When a response to a SJ motion is filed that clearly shows materiel facts in dispute the moving party has a duty to withdraw their motion. So when a party loses a SJ, based on the materiel facts shown in the reply, the court should automatically find for fees and costs for the cost of the response and any costs of discovery in support of materiel facts raised in the reply.
    This taxing of fees and costs for unfounded motions would significantly inprove the quality of pleadings, the affidavits in support and the quality of the SJ motions, while at the same time radically reducing the volume of court hearings. It would curtail the common practice of prematurely moving for a SJ before the matters are ripe.

    Another change, time. If experts at trial must be declared 45 days prior, and lists of witness and documents 30 days before, the same time should apply to documents and affidavits in support of SJ motions to allow defendants sufficient time to schedule depos of the affients and subpoena relevant records. It is fundamentally unfair for Plaintiff to take a year getting their ducks in a row and the defendant, served by mail, may get only a couple of weeks notice of the motion, attachments and hearing.

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