Florida Is Still Letting Banks Break the Rules in Foreclosure Cases
Over the holidays, I wrote about judges in Lee County, Fla., and how they appear to prioritize completing foreclosures over the rule of law. The most extreme example was an order in one case by Judge James R. Thompson that specifically exempted banks from a rule on affidavits that all other Florida litigants must follow — specifically, part (e), which requires claimants to provide legally valid documents to back up their claims.
Now, Judge Thompson has disowned the original order, replacing it with an order that claims banks do have to follow the rules. The problem? Even though he says the rules of evidence do apply to banks, the judge allowed the bank in that case to use an affidavit that obviously breaks the rule.
Apparently, the judge merely changed his public position: Rather than admit the fact that foreclosing banks don’t have to follow the rules on affidavits and loan documentation, he’ll say they do, then fail to make them comply. That smells like a cover-up, not a correction. Indeed, the clerk of the court told a Florida TV station that the court never makes the banks comply with the rules on documentation.
A Defense Against the Hazards of Robo-Signing
The rule at issue goes to the heart of the robo-signing crisis.
When a party in any kind of Florida lawsuit wants to submit an affidavit as evidence, rather than getting testimony from a witness, the rule requires the party to attach to it any documents the affiant (the person who’s swearing to the affidavit) reviewed in order to make the sworn statement. The attached documents give the court confidence that the affiant did in fact know that what he’s swearing is true, and they allow the other side a kind of “cross examination” of the affidavit.
See full article from DailyFinance: http://srph.it/gZS0DO
~
Why have I not seen any mention of the fact that, although the printed name under the signature line on the abovementioned Order is “Honorable James Thompson”, it was in fact SIGNED by Judge Hugh Starnes?
It simply cannot be allowed for an over-burdened judiciary to routinely violate the rule of law in extreme favor of a hasty resolution to the benefit of one party over another.
To that end, can anyone tell me if even one administrative order, regarding the tongue in cheek directional memo issued by Chief Justice Canady of the Florida Supreme Court on November 17, 2010, has been issued by any of the Chief Judges of the Circuit Courts?
A brighter light to shine in the darkness is coming. Be strong.
This nation will remain the land of the free only so long as it is the home of the brave. ~Elmer Davis
I think the court got it RIGHT, for the most part. I do not know what motions, affidavits and pleadings lead up to the two orders but here is my thaughts:
Pleadings are argument NOT evidence. They just have to allege facts, and have the documents attached on which the action or defense is based. A pleading does not have to contain any evidence. (Evidence is for trial)
Affidavits do not have to be attached to complaints except as the rules require for verification or sworn complaints.
Attack of the affidavits attache to pleadings, under rule 1.510(e) is incorrect. The rule only applies to summary judgment evidence, in support of a summary judgment motion. Moreover summary judgment motions are improper when filed before the time has expired for filing an answer or objection.
In my opinion EVERYONE got it wrong in part.
If this was the defendants attack on the Pleadings, before filing an answer, the Defendant’s counsel got it very wrong. – Pleadings are not attacked under rule 1.510(e). Defendant got that completely wrong.
Court was correct to order defendant to file an answer if their motion attacking the pleading failed. Which if attacked under rule 1.510(e) it should have failed. So court got it right, but the explanation was wrong.
Court should not have ruled as to admissibility of affidavit unless it was an essential part of the pleading, which in foreclosure it is not, the only required affidavit at the pleading stage is the verification.
It appears the defendant did not file an answer but brought a motion attacking the sufficiency of the pleading, which is technically a special appearance, BEFORE an answer is filed.
There are only a few things that can be attacked before filing an answer, done in a motion to dismiss or for more definite statement: They are capacity, standing, failure to allege cause of action, venue, jurisdiction, and maybe failure to join indispensible party.
When testing the sufficiency of a pleading the court must take all facts alleged as true.
It is incorrect to attack the veracity of documents until after you have accepted the jurisdiction of the court and filed an answer. Before that the facts alleged are assumed to be true. The defendant does not make a regular appearance in the action until filing their answer, AFTER which it is proper to move fore a judgment on the pleadings, or for a SJ motion. Both of which are quite different but often confused.
ISSUES with the ORDERS:
a) I did not know a court could order a motion “Withdrawn” – I think it can deny or grant the motion, in whole or in part, or strike the motion for some reason like being frivolous, untimely, not allowed by the rules, etc. In each case the movant can go for a rehearing and in some cases an appeal. I don’t know the rules allow for the court to order a party to “withdraw” their motion.
Court should have just denied the motion on the grounds that in testing the sufficiency of a pleading the facts alleged are taken to be true and the attack under rule 1.510(e), at that time, before filing an answer, was incorrect and was clearly under the wrong rule, just not applicable. (If that is in fact the rule under which defendant moved or objected then Defendants motion, made at that time was probably frivolous.)
b) I do not know what caused the court to issue a corrective order. Was that because the Defendant filed a motion for reconsideration or rehearing?
c) The first order was obviously wrong. The second, states that some ones counsel was to prepare the proposed order, for the first order, with the hint that someone did something wrong. I want to know, was that the plaintiffs or defendant’s counsel who prepared the proposed order that got inadvertently signed?
It was probably counsel for the prevailing party. If so, slipping in such rulings that the court did not make, would be reasonable grounds for the court to spank the offending law firm.
It would be reasonable for the court to have a hearing on the matter, to see if it was a honest mistake or an attempt by one party to commit a fraud on the court. But maybe not, because the other spankable offense is using he wrong rule for attacking a pleading before filing an answer. (That’s a common pro-se mistake)
d) The court fails to say who the Exparte was that moved the court to correct the order. This I think it was unwise for the court not to state the the moving party and the courts finding. That may come back to byte the court in the butt, but maybe not, maybe the record in the case shows who the exparte is and the grounds for the motion.
I see no cause for alarm.
The court was correcting an erroneous order that it had been coned into entering, probably by the plaintiff. It does show judge executing the order did not read it and comprehend it fully. It does show why pools of judges who play musical bench are a bad idea, because they have no prior knowledge of the proceedings in that case and so are prone to making mistakes, or being conned into making mistakes.
You can move to have Affidavits used in support of a summary judgement motion struck or excluded for failing to comply with Rule 1.510(e) but it does not apply to the sufficiency of pleadings.
So don’t get your nickers in a twist. The court entered an euphonious order for the right reason. The error included in the order was probably a slight of hand by the Plaintiff. The court, on discovery of the error, fixed that.
James M
James,
How do you know if the Court got it right? Were you there as a witness?
Have you looked at the case to see every document in the file and when it was filed?
Have you ever practiced law in Lee County?
Lee County may be the most Corrupt, Criminal, Court House in America right now.
I have been there fighting in the trenches for the past 5 years. What you read before you pails in comparison to what is actually going on.
Fraud on the court is fraud on the court………………End of story.