By Alison Fitzgerald, Center for Public Integrity
Florida homeowners may soon find a more friendly reception in the state’s courtrooms after a state Supreme Court panel found that some judicial practices designed to speed up foreclosure cases may be improper.
The Court’s Local Rules Advisory Committee said last week that a judge’s order in Palm Beach County that allows banks to defeat homeowners’ motions to fight foreclosures in court simply by ignoring them went beyond the judge’s authority. The committee referred the rule to the state Supreme Court for review.
At issue is an order by the chief judge in Palm Beach County, and an accompanying order from a foreclosure judge, that deems a motion in a foreclosure case abandoned, essentially expired, if it hasn’t been heard within 90 days. The effect is that homeowners who ask judges to dismiss their cases, or disallow evidence, will automatically lose if the bank trying to foreclose doesn’t respond to the motion. Other Florida counties have similar orders in place.
“What they’re saying is you don’t have to hear those motions, just deny them,” said Thomas Ice, a Royal Palm Beach lawyer who took his opposition to the orders to the Supreme Court’s committee as well as to two state appeals courts. “I’m going to wave my judicial wand and they are all gone.”
The Center for Public Integrity reported earlier this year that Florida’s legislature and Supreme Court have instructed judges across the state to clear what they say is a critical backlog of foreclosure cases from the court system. The state set up a parallel legal system in which judges hear only foreclosure cases — often more than 100 motions per day. The courtrooms operate under rules that differ from those that guide civil law in other types of cases.
Chief judges across the state issued orders on how to deal with foreclosure cases. Many counties set up separate courtrooms and hired retired judges to hear cases. The state Supreme Court tracks how many cases have been heard, how many have been cleared and issues monthly reports detailing the progress of each judicial circuit. The state set a goal of clearing 256,000 cases a year for three years.
Homeowners and defense lawyers said the result is a system in which judges regularly rule in favor of mortgage lenders, granting them leeway on rules of evidence and extensions when they don’t show up for trials and hearings — latitudes that aren’t typically granted to borrowers.
The judicial order to abandon motions was designed to prevent homeowners and banks from purposely delaying cases with endless motions. That particular rule, however, was an egregious overreach that would not be tolerated in legal cases outside of foreclosure, Ice said.
“If this is examined out in the light, I think the overall legal community will reject this hands down,” he said.
The decision by the local rules committee essentially said the judges’ orders had exceeded their authority, because administrative orders are reserved for issues related to running the court system and not to legal proceedings. Rules that affect courtroom procedures require greater review, including comments from local lawyers and a Supreme Court examination.
The administrative order is now before the Supreme Court and no hearing date has been set.
Two appeals courts declined a request by Ice and other lawyers to review the judicial orders. The appellate judges, however, said an “aggrieved party” has the right to have a motion heard even if it’s deemed abandoned.
The rules committee decision came days after foreclosure defense lawyers and consumer advocates met with the state’s newly appointed courts administrator, P.K. Jameson, to discuss problems with the state’s foreclosure courts. Courts administrators run the business of courts including budgets and assignments of judges but do not rule on legal issues.
“We made it clear that the foreclosure attorneys are seeing treatment that is different than the treatment that clients get in other types of actions,” said Alice Vickers, director of the Florida Alliance for Consumer Protection. “When they are having foreclosure cases heard, normal civil procedures seemingly don’t apply.”
She said Jameson asked “questions specifically related to judges ramming these cases through” but it was unclear whether the office had the authority to take action.
The group asked Jameson to review chief judges’ administrative orders, but Eric Maclure, the deputy state court administrator, said issues regarding such legal procedures are outside the purview of the his office. “We’re not planning at this point at the staff level a comprehensive review of the orders,” he said.
The lawyers also asked state officials to ensure that foreclosure judges are following federal regulations adopted last year to help people facing foreclosure keep their homes. The rules require banks to halt foreclosure proceedings if a person has applied for a loan modification.
Some judges in Florida have questioned whether they have to apply federal regulations in state courts.
Maclure said his office is planning, as a result of the meeting, to distribute to foreclosure judges throughout the state a one-page document explaining the new federal regulations. The court system held a training session last summer on the rules, which judges could attend for continuing education credit.
Wholesale changes to Florida’s broken foreclosure system won’t happen quickly, according to Lynn Drysdale of the Jacksonville Area Legal Services, who also participated in the meeting with state court officials.
“I wasn’t going into that meeting expecting there to be a huge change in the foreclosure process,” she said. “It’s a huge issue, and I don’t believe there’s an easy resolution.”
Still, she and the other attorneys are seeing incremental progress as the state responds to their concerns on several different fronts.