September 15, 2010

Certain circuit courts in Florida are overreacting and improperly reacting to the flood of foreclosure lawsuits filed by the foreclosure mills, and are enacting local court procedures which violate due process, ignore the Florida Rules of Civil Procedure, and are resulting in more improper foreclosures in favor of “lenders”, servicers, and securitized trustee banks. Although the Supreme Court of Florida has endeavored to protect borrowers’ rights through, for example, the requirement that foreclosure complaints be verified, certain of the circuit courts are jettisoning borrowers’ rights with local court procedures which can only be described as abominations and a vicious attack on borrowers.

Miami-Dade County enacted a new procedure for foreclosures in April/May of this year which it calls the “Foreclosure Master Calendar”, whereby Motions for Summary Judgment in residential foreclosure cases and emergency motions to cancel foreclosure sales are no longer being heard by Division Judges and are relegated to the “Master Calendar”. For summary judgment motions, a Plaintiff foreclosing party submits a “summary judgment packet” to the Master Calendar, which is supposed to schedule a hearing and provide notice to counsel. However, in at least one case, the summary judgment was entered with no hearing and no notice to the borrower’s counsel, and the summary judgment motion itself was received by the borrower’s counsel on the same day that the court entered summary judgment. This procedure flies in the face of recent Florida case law which provides that any final order entered without notice is void and subject to being vacated. As such, the Miami-Dade Circuit Court has probably served to further clog its dockets with a deluge of Motions likely be filed by those who never received notice from the “Master Calendar” of a summary judgment motion.

In Broward County, foreclosure hearings are now being conducted in hallways.

In Lee County, Circuit Judges are setting “docket soundings” where a summary judgment motion can be heard, and automatically referring these “docket soundings” to a Magistrate without the consent of the parties. As the Florida Rules of Civil Procedure require that magistrate jurisdiction can only be made if consented to by all parties, the Lee County Courts have thus chosen to ignore the Florida Rules of Civil Procedure, or are hoping that the majority of homeowners are not aware of the constraints on magistrate jurisdiction so that more foreclosures can be railroaded through the system.

These procedures were obviously reactionary; were not well-thought out; and will result in those courts becoming more bogged down as more and more borrowers file motions to advise those courts that they are violating the law. These jurisdictions and others similarly inclined should, for their own benefit, review the mandatory pre-foreclosure proceedings of the 19th Judicial Circuit in Florida (which have been in place for approximately two years), which procedures insure everyone’s rights, diminish discovery disputes in any foreclosure litigation, and streamline foreclosure cases by, for example, requiring the foreclosing party to produce certain documents prior to filing a Complaint for foreclosure.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com