It used to be said that we were a nation under the rule of laws. Sure, some folks still utter such phrases, but the truth of the matter is we’re getting further and further away from that each day. The breakdown of the rule of law is most evident to me in the midst of the foreclosure crisis and the most disturbing aspect of this breakdown is the role lawyers and judges are playing in this fundamental breakdown. As the Florida Legislature is set to consider anti-consumer foreclosure legislation like the absurdly titled House Bill 1523 the Homeowner Relief and Housing Recovery Act, I propose the following alternatives to such actions be pursued first.
A Clear Understanding of the Facts Behind the “Crisis”
The core facts behind the breakdown of the rule of law as represented in foreclosure cases is clear…the lenders and institutions, in their rush to sell their loans up the river, were moving so fast that they stopped keeping the records and evidence that they now need to try and enforce the mortgage obligations. Rather than own up to these facts then work with courts and borrowers to create a system to re-establish the paperwork, the lenders, their unethical foreclosure mills and other agents like MERS are busy creating and fabricating paper and evidence as fast as they can then submitting this paper and “evidence” in courts all across the country.
What disturbs me most about all this is the lenders have infected the court process such that lawyers and judges have now become complicit in all this unethical, fraudulent and potentially criminal conduct. I do not mean to say that judges per se are engaging in criminal or unethical conduct, but when the magnitude of these abuses is so widespread, judges simply should not continue to grant summary judgment in foreclosures in this environment. As I sat in court several times last week I became very upset about the hundreds of summary judgments that were being granted because the homeowner chose not to hire an attorney or file any paperwork. Judges feel compelled to grant summary judgment in these cases, but it’s just wrong on so many levels. In the cases where attorneys for the Plaintiffs bothered to show up at all, they don’t even bother bringing their case files.
How can an attorney be representing that their are no facts in dispute when that attorney does not have the case file with her and has never even seen the case file?
An End To Telephonic Hearings
I don’t understand why judges continue to allow the foreclosure mills to appear for hearings telephonically. Such appearances are a privilege, not a right, and that privilege is so abused that it should be take away across the board. I feel great empathy for the judicial assistants who man the judge’s telephone lines and manage the chaos of coordinating 100 hearings via telephone when the attorneys don’t care enough about their cases to show up in court (much less even bring the file). Forcing the attorneys to appear in court with the case file also forces them to sit face to face with me, the opposing counsel. I cannot get them on the phone and they will not respond to emails, but they cannot ignore me when they’re standing right in front of me.
If the Florida Supreme Court can mandate that clients appear at mediation with settlement authority why don’t local judges require attorneys to appear in person, with their case file prior to hearing and attempt to resolve the matters between themselves prior to taking the court’s valuable hearing time?
A Serious Examination of All Improper Attorney Conduct
Judges across the state should now be aware of gross abuses and questionable evidence that is being routinely submitted in foreclosure cases. Examples of such abuses….
1. Assignments of Mortgage signed by attorneys or employees employed by the firm prosecuting the foreclosure case.
2. Affidavits of amounts due and owing signed by attorneys or employees employed by the firm prosecuting the case.
3. Assignments of mortgage signed by document mills or robo signers with dates and other important facts supplied by the attorneys prosecuting the case.
4. Attorneys making pleadings before the court with no factual basis for such pleading. (As one judge frequently comments, “A lost note is not the same thing as a hard to find note.”)
5. Attorneys appearing in cases where a conflict of interest exists between the Plaintiff and one of the Defendants with no clear waiver of that conflict. (This appears in many cases where second mortgage holders are named as defendants in cases.)
6. Attorneys filing Affidavits of Attorneys Fees when they’re employed by this state’s top law enforcement officer (Florida Attorney General Bill McCullum), serious questions regarding the veracity of such affidavits have been raised and the attorneys who have signed these affidavits refuse to have their depositions taken.
7. Attorneys or employees of law firms that obtain title to properties soon after the certificates of title have been issued by the Clerk of the Court.
8. Attorneys demanding that the evidence used to grant summary judgment be returned to them (the promissory notes) and Clerk’s of Court or judges returning such evidence to them which will result in such evidence being unable to recover when subsequent investigations and court proceedings will require this evidence. (The Chief Judges in each circuit should issue orders directing that all evidence be preserved in court files effective immediately.)
9. Attorneys just blatantly ignoring Orders of the Supreme Court of Florida….(We don’t verify no stinkin’ complaints!)
And now the last, worst and most disturbing new trend that’s only just appearing this week…