JUNE 6th, 2010

And all other Judges for that matter…

I understand that there was a meeting between the Judges in Broward County and you, Judge Sasser, as you announced it in open court.  Of course, it is always advantageous for different judges from different counties to discuss how to better administer of the court system; especially, in foreclosure.

Frankly, I have no problem with how cases are administered in either Broward County or Palm Beach County.  I don’t think the problem is administration.

I recently read the transcript of a hearing in front of Judge Jennifer Bailey in Dade County wherein she sanctioned the Bank/Trust for disregarding an order by the court to post a bond if the Bank/Trust due to the fact that the Bank/Trust lost the note – something that probably would never happen in Broward or Palm Beach county.

Judge Bailey, who has led a statewide task force on residential mortgage foreclosures, was recognized in Miami at the annual installation dinner of the Dade County Bar Association for exemplary service to the legal community of Miami-Dade County this past week;

“DBR publisher Chris Mobley noted that Judge Bailey has spent more than year working to ease “the crushing overload of foreclosure cases clogging the courts.” In doing so, he said, the 18-year judge has sought to hold litigants accountable for their actions in court. Most recently, the judge took the extraordinary measure of cancelling a homeowner’s $207,000 mortgage debt when a lender ignored her order to post a bond”;

makes several points that I and many of my colleagues have been making for quite some time.  It is what fuels our passion in the area of “Foreclosure Law.” It is the fact that we all made an oath to follow the Rules of Civil Procedure and follow the rule of law because at the end of the day all we have is our reputations.  To quote Judge Bailey;

“We don’t make widgets, we don’t build clocks, we don’t build cars.  We have nothing but the pleadings we file and sign our name to evidence the quality and integrity of who we are.”

After having practiced for over 25 years, I was shocked at the level of disregard for the rules of evidence, the rules of civil procedure, the Florida law, and basic decorum in this, as Judge Bailey says, “Foreclosure World.”

I still remember the first case I went to court on – which was in Broward.  I pointed out to the Judge that the Assignment of Mortgage was drafted by the Plaintiff’s law firm and signed by one of the partners, obstensibly for and on behalf of an unknown entity that the Plaintiff’s law firm never represented.  The Judge stated that he saw nothing wrong with the Plaintiff’s law firm making up its own evidence and signing this evidence for an entity it does not represent all for the purpose of taking an American citizen’s home.

That judge asked me point blank if I really saw anything wrong with that.  I thought I had just walked into Bizzaro World where up was down and down was up; right was wrong and wrong was right.  Yes, absolutely I see something wrong with a Plaintiff making up its own evidence for the purpose of condemning the Defendant.  It is called Conflict of Interest.    And it is roundly condemned in by the Florida Bar – except in “Foreclosure World.”

You can imagine my relieve when I started reading Judge Shack’s opinions out of New York.  Judge Shack has not only dismissed cases where the Plaintiff’s attorney has made up the evidence but demanded that the Plaintiff’s attorney filed with the court its conflict letters and agreements.  Judge Shack has also been forthright in pointing out how all these “robo-signers” sign for a variety of banks and trusts as vice presidents, assistant secretaries, and you name it.  He has demanded that their employment records be submitted to him.  By the way, none have.  (We all know that these people who sign the affidavits of indebtedness and assignment of mortgages and endorsements on notes do not work for anyone related to the foreclosure.  It is all a fraud.)

I have heard judges complain about the lack of professionalism in the attorneys today.  While at the same time these very judges don’t listen to arguments, don’t follow the rules of procedure or rules of evidence and accept obviously bogus, hearsay affidavits filed in support of summary judgments.  As long as the goal is to get rid of the foreclosure cases as fast as you can, the rule of law will suffer a very fast death.  It already is happening.

That is why I fight.  That is what fuels my passion.  I want the court system to be the bastion of justice that it once was.  I want the rule of law to prevail.  I want the rules of evidence followed.  I want the rules of civil procedure recognized.  I want the case law, the Florida Statutes, and the Constitution to be upheld.

For example, the four corners rule is not being applied.  If it was all these complaints would be thrown out at one glance.  Exhibits rule over the allegations because it is easy to make an allegation but it is next to impossible to change a contract drafted several years ago.  But there is an invisible book written in invisible ink that says that in “Foreclosure Law” the allegations rule over the exhibits.

Here is another one.  Complaints are supposed to plead ultimate facts that support the Counts set forth in the Complaint.  These Complaints violate every standard set forth in the Rules of Civil Procedure.  The bank/trust complaints do not have a short and plain statement setting forth the grounds upon which the court’s jurisdiction rests; these complaints don’t set forth in what capacity these plaintiffs are coming before the court; and there are no facts set forth in the complaints – just conclusions of law or fact.

But the courts have routinely accepted these complaint as stating a cause of action when, in fact, they don’t.  The Plaintiff is not even mentioned in the exhibits – most of the time.  Who is this plaintiff, in what state is this plaintiff organized under; where is the principle place of business; and under what facts did the plaintiff get possession of the promissory note.

What is worse is that the plaintiff answers discovery with NOTHING.  As attorneys seeking to protect our clients, according to the plaintiff, we are entitled to no discovery whatsoever.  And the courts allow this.  Since when was discovery in Florida so narrowly defined.  Discovery in Florida has always been liberal.

Why is this important?  The federal court system makes the bank/lender/trust prove that they own these loans.  There are many cases that illustrate this point.  In every case where the bank/lender/trust plaintiff was required to produce evidence that it rightfully owns the Note, the plaintiff bank/lender/trust has been unable to do so.  So it is very important that mortgage defense attorneys be able to seek and obtain the discovery that is requested.

Judge Bailey recognizes that arrogance of the plaintiff attorneys when she sanctioned the plaintiff in HSBC Bank USA, as Trustee v. Eslava.  She recognized that the level of chaos and disorganization as the plaintiff lawyers have no idea what is going on in their files and come to court asking judges to do everything because the plaintiffs’ attorneys feel it is their right to “find a judge at any time, day or night” for the purpose of ” asking judges for things left and right without even knowing what’s going on.”  Here is what she said verbatim:

“You’re filing pleadings in court every day and you don’t even know what’s going on with the case.  And see, the really interesting thing to me as a judge is in no other species or area of law would that be remotely acceptable and frankly, anything short of malpractice.  But somehow in Foreclosure World everybody thinks that that’s fine, that you all can know absolutely nothing about your files and walk in here and ask judges for things left and right without even knowing what’s going on.  And, you know, ultimately, the law firms are going to start doing that at their peril.”


Unfortunately, this imperial attitude of plaintiffs’ attorneys have been supported by the judges, who feel that the bank/lenders/trust have to prove nothing.  I cannot tell how many times I have walked into court and the over-riding question is:  “How long has it been since the defendant’s paid on their mortgage?”  Isn’t that putting the cart before the horse?

The question should be:  Does the Plaintiff bank/lender/trust own this loan?  Prove it with admissible evidence – not forged affidavits of reasonable attorney fees or unlawful and false affidavits of indebtedness that no-one reads or has any personal knowledge of or bogus assignments of mortgages or conclusory allegations of “having and holding” or forged and fabricated “original notes.”

And if the bank/lender/trust cannot prove it, then so be it.  Let’s not be naïve, the banks have been paid through credit default swaps, insurance companies, and bail out money.

Here is the other reason I fight for the rule of law, the rules of evidence, and the rules of procedure to be followed in the courts of Florida.  What are we teaching our young attorneys???  The amount of fraud, fraudulent documents, lying, cheating, and deceptiveness is astounding – all from the plaintiffs’ side.  I have actually shown judges where signatures have changed over several different assignments and affidavits.  That – in any other area of the law – would be considered fraud on the court.  The Judges still grant summary judgment.  What does that say to our young attorneys?

If judges are only concerned with getting rid of their case load – and not the fair and impartial application of the law – then these young attorneys will get the message too.  What is that message?  It is all about winning at all costs; doing whatever is necessary; fraud on the court is irrelevant because it is all about getting rid of the cases as fast as you can.  It truly is astounding and upsetting to me.

What do all the parenting classes say?  Our children will learn by what we do, not by what we say.

Despite what you may think, Judge Sasser, I still think you can be a great judge – even if your portfolio indicates a conflict of interest.  It is like Judge Bailey said; we all made an oath to follow the Rules of Civil Procedure and to follow the rule of law.  At the end of the day, all we have is our reputations.  I chose to believe that you have taken this position, not for your health or wealth, but because you want to make a difference.  Being a competitive person myself, I chose to believe you don’t want to be a good judge but a Great Judge.  You have that opportunity, right here, right now, in your court of law.

Despite what others may say, we mortgage defense attorneys do not hold Judge Shack, Judge Bailey, the Second DCA  and others in high regard because they rule in our favor.  We – who have been practicing law a long, long time – hold these judges in high regard because they are applying the law, rules of procedure, rules of evidence and the Constitution as it should be applied – fairly and justly. If the plaintiff bank/trusts/lenders can prove that they own these loans through admissible evidence proving a proper chain of title and proper payment then so be it.
This is not the “Foreclosure World” as practiced a decade ago.  Now unknown entities are coming into Florida and taking our citizens houses with little or no evidence of who they are, what they are or that they actually own these loans.  All I want – and all the other mortgage defense attorneys, who practice with integrity want – is to have  judges who administer the Florida Statues and Constitution fairly and equitably.  We want the right to get at the evidence we need to prove our case.  We want the Blind Lady of Justice to put her Blindfold back on.  We want integrity and decorum to be put back into our justice system.


Open Letter to Judge Meenu Sasser 15th Judicial Circuit of Florida RE: Foreclosure Court