By: Christine Stapleton and
April 2, 2011
Angry and exasperated by faulty foreclosure documents, judges throughout Florida are hitting back by increasingly dismissing cases and boldly accusing lawyers of "fraud upon the court."
A Palm Beach Post review of cases in state and appellate courts found judges are routinely dismissing cases for questionable paperwork. Although in most cases the bank is allowed to refile the case with the appropriate documents, in a growing number of cases judges are awarding homeowners their homes free and clear after finding fraud upon the court.
Still, critics say judges are not doing enough."The judges are the gatekeepers to jurisprudence, to the Florida Constitution, to access to the courts and to due process," said attorney Chip Parker, a Jacksonville foreclosure defense attorney who was recently investigated by the Florida Bar for his critical comments about so-called "rocket dockets" during an interview with CNN. "It's discouraging when it appears as if there is an exception being made for foreclosure cases."
In February, Miami-Dade County Circuit Judge Maxine Cohen Lando took one of the largest foreclosure law firms in the state to task in a public hearing meant to send a message. She called Marc A. Ben-Ezra, founding partner of Ben-Ezra & Katz P.A., before her to explain discrepancies in a case handled by an attorney in his Fort Lauderdale-based firm.
"This case should have never been filed," said Lando, who referred to the firm's work on the case as "shoddy" and "grossly incompetent." She called Ben-Ezra a "robot" who filed whatever the banks sent him, and held him in contempt of court. She then gave the homeowner the home - free and clear - and barred the lender from refiling the foreclosure.
Attorney Maria Mussari, who represents the homeowner, said she wasn't surprised. "She has become a voice for other judges," Mussari said. "If judges crack down on following the rules, we'll still have foreclosures, but maybe the banks will pay attention and do it right."
Mussari said it's taken a while for the courts to wake up to the foreclosure disorder because homeowners were largely unrepresented and judges overwhelmed. "It's not that they don't care," she said. "They have thousands of cases on their docket and it's the same thing over and over again."
Ongoing scrutiny by the FBI, the Florida attorney general, the Florida Bar, the media and defense attorneys has uncovered countless examples of forged signatures, post-dated documents, robo-signing and lost paperwork.
As a result, defense attorneys are filing more motions challenging the documents. That means judges must spend more time reviewing documents and holding hearings. The situation was complicated last week when attorney David J. Stern, who operated the largest so-called foreclosure mill in Florida, sent letters to the chief judges of Florida's 20 circuit courts announcing that he intended to violate court rules and dump 100,000 foreclosure cases without a judge's order.
"We no longer have the financial or personnel resources to continue to file Motions to Withdraw in tens of thousands of cases that we still remain as counsel of record," Stern wrote, suggesting that the judges treat the pending cases "as you deem appropriate."
Last year, Florida lawmakers gave the courts $6 million to hire senior judges and case managers to reduce the foreclosure backlog. Since the money was awarded July 1, judges have cleared nearly 140,000 cases. As of the end of February, 322,724 foreclosures were still in the system.
But clearing backlogs isn't what judges should be focused on, said University of Miami Law Professor A. Michael Froomkin. "Substantive justice still needs to be done, and that's very hard sometimes," Froomkin said. "When I read stories about judges looking at things more carefully and holding attorneys accountable, to me, the system is doing what it needs to do."
A closer inspection of cases by judges would slow down the foreclosure train, but the result may be preferable to mere expediency. "Justice," Froomkin said. "The outcome, I hope, is justice."
Alan White, a law professor at Valparaiso University in Indiana, who has studied the foreclosure issue nationwide, said judges had few reasons to doubt banks in the beginning of the foreclosure avalanche. "They had a lot of credibility," White said. "Now, when a bank says it owns a mortgage, judges are skeptical."
White said a smattering of "maverick" judges began poking holes in foreclosures years ago before the media and lawmakers seized on problems in the fall. The judicial momentum has built since then.
"The combined impact will clearly be to change practices and to reduce the amount of corner-cutting the banks and their lawyers are engaged in," White said. "It could mean foreclosures get slower. It could also encourage banks to pursue alternatives to foreclosure."
The professors agree it's difficult for judges to pick out problems in foreclosure cases that are undefended. Homeowner advocate is not their role. "They don't fix things," Froomkin said. "They decide cases."
Judges question the process… and they let
the foreclosure attorneys have it.From a Feb. 11 hearing in Miami-Dade regarding a Homestead foreclosure. The hearing ended with Judge Maxine Cohen Lando finding attorney Marc A. Ben-Ezra in contempt.
Lando: 'I don’t care what the banks — your clients — are telling you. Your job is to give your clients legal advice and you’re not doing it. You are acting as a robot for a plaintiff who is not even giving you the information you need to file a proper foreclosure.’ Lando: 'This level of practice is shoddy. It is grossly negligent. It is worthy of a judge looking at, and saying, what is going on here? How dare you file something like this.’
From a May 6 hearing in Miami-Dade. The hearing ended with Judge Jennifer Bailey awarding the home to the owner and barring the lender from attempting to foreclose again on the condo.
Bailey: 'And see, the really interesting thing to me as a judge is in no other species or kind of law would that be remotely acceptable, or, frankly, anything short of malpractice. But somehow in Foreclosure World everybody thinks that that’s just 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.’
From an April 7 hearing in Pinellas County. Judge Anthony Rondolino set aside his prior ruling awarding summary judgment to the bank. Rondolino: 'I don’t have any confidence that any of the documents the court’s receiving on these mass foreclosures are valid.’
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