An Open Letter to Florida’s Best Judge

Dear Judge:

Florida’s foreclosure crisis is not getting any better.  In fact, things are getting much worse. Across this state, unemployment continues to rise while the broader economic indicators show continued decline of the overall economy.  And while Floridians on Main Street suffer like never before, the wizards on Wall Street continue to report record profits.  Never before has the economic divide between Main Street and Wall Street been more dramatic,  a contrast that is all the more explosive because those profits are largely the product of taxpayer largess and government intervention.  Wall Street’s obscene profits are a burden our federal government has foisted on the backs of the beleaguered American taxpayer…and the time is soon coming when they will no longer willingly bear this burden that they have not consented to.

The measures which have been implemented thus far in this state to deal with the foreclosure cases choking our courts have failed miserably and will continue to prove unsuccessful in dealing with this most profound systemic breakdown.  Foreclosure as it is currently being executed in Florida’s courtrooms violates a fundamentally American ethic.  Americans can take losing a fair fight, but we cannot stand losing an unfair fight when the deck is stacked against us and the other side is not playing by the rules.  Foreclosure in Florida is an unfair fight. Facing a foreclosure sale while you’re pursuing a modification and your lender has expressly told you it was safe to ignore the court case….that’s not fair.  Losing your home to any group or company that’s the target of investigation by this state’s Attorney General…that’s not fair.  Losing your home when you haven’t gotten proper service of process or notice of hearings…that’s not fair.  Practicing law in courthouses across this state where the rules are either tacitly ignored or expressly rejected by the court…that’s not fair.  Fighting both the court and the opposing party on behalf of economically challenged and far weaker clients….that’s not fair.

The systemic problems in our state’s foreclosure courts have been there for years, but our courts have chosen to ignore them as part of the ill-conceived notion that ramming foreclosures through and ignoring law and procedures is somehow good for our state’s economy.  It’s time for that to stop.  Our lady justice is blindfolded, but she is not blind.  She can feel the gross imbalance of power and the inequities weighing out in her hand and in her courtrooms.  And while I find it utterly maddening that more homeowners do not participate or defend their foreclosure case,  their failure to participate does not relieve members of the bar and judges from their professional responsibilities of ensuring that basic rules of procedure are followed and that fundamental due process is provided in every single case.  The foundation of the foreclosure crisis is the sloppy, fraudulent and sometimes criminal document production and business practices that permeated the subprime lending industry and Wall Street.  Now those very same practices have infected our court system.

I recognize that our judges and court systems are overwhelmed but they can no longer ignore the gross abuses that are playing out in our courtrooms across this state.  I must respectfully disagree with our honorable senior and circuit court judges who feel they lack the judicial discretion to weigh evidence and equities in cases before them which are not contested by a defendant.  Florida Statute 702.01 specifically provides that all mortgages are foreclosed in equity.  Accordingly, I believe judges not only have the ability to examine all evidence before them, I believe they have a statutory obligation to do so.  The statutory obligation notwithstanding, the awesome power and responsibility we have invested in our judges demands they exercise judicial discretion to root out the systemic abuses, abuses which are now established as fact…more of which are being reported and confirmed every day, including especially testimony before Congress.

My vocal and persistent protests are not lack of respect for the court and for judges, quite the contrary.  I am desperately sounding the alarm and trying to protect our courts and judges from fallout that’s coming when the lid blows off the cauldron of discontent that is bubbling all across this country.  I want our judges and courts to understand that the people are becoming acutely aware of the inequities of foreclosure as it is currently being practiced and I fear these people will look to hold our judges accountable for the misdeeds of the lending industries and their robo signers and lawyers when the investigations are concluded and the full specter of this debacle is finally reported.  The reporters are fanned out across this country and especially across this state.  The systemic abuses they are documenting will send shock waves coursing through our society as Americans, Floridians and international observers wonder, just how was this system permitted to get so out of hand?

The foreclosure crisis was not created by lawyers or by judges, but by reckless and out of control industries, legislators and agencies that have now dumped their mess into our courtrooms and demanded that we solve their problems overnight….without providing the funding to solve those problems and while they are compounding the problems with robo signing, false statements, failed processes and additional failures.  Systemic failures which call into question the legitimacy of our civil court system.  Reporters, bloggers and activists fulfill sacred functions in this country.  In this economic war, these lone warriors and nimble strike teams are fighting the largest and most powerful forces in our universe.  They are unpaid or paid a pittance…the reward is not the obscene profits of the institutions they fight..the inspiration is a search for truth, the reward is the knowledge that truth exposed is liberty protected.

In every great crisis there are opportunities and this foreclosure crisis presents the single greatest opportunity the Florida Bar has seen in a generation to show every day Floridians—and the rest of the world—the very highest aspirational goals of our profession.  We are not merely defending homeowners in foreclosure defense, we are engaged in an epic battle to protect our courts, to defend the Constitution and to protect those in our communities from wanton abuses of powerful forces and a system that has gone awry.

The lawyers and judges in this state did not create this crisis, but we can help solve it and in the process earn the respect of Floridians who hold lawyers and judges partly to blame for the continuation of this crisis.  Our judges need to do a better job of communicating that they are not the reason for the backlog in cases and they should objectively report that homeowners and defendants are not the reason for the backlog in cases.  The vast majority of cases that are languishing in our court systems lie there because the lenders cannot or choose not, to proceed with these cases.  It’s time to tell that story, to report those facts.  While we focus most of our time and attention on the cases that are proceeding forward, it will be far more valuable for our courts to independently examine the thousands of cases that have languished for years without a single response from the defendant.  Dismissing those cases will offer a far more accurate perspective on the crisis.

Having exhaustively detailed the crisis it’s now time to start talking solutions…

To read about what Matt thinks will help solve this crisis, click here…