April 17, 2014
In what appears to be another showing of contempt for homeowners and the laws of the State, a Florida Circuit Court Judge today permitted a substitution of the FDIC as the Plaintiff in a foreclosure action with the Bank of New York as the claimed “trustee” of a securitized mortgage loan trust without any proof or evidence of a transfer of either the Note or the Mortgage from the FDIC to BNY while also simultaneously granting the homeowners’ Motion to file amended Affirmative Defenses but refusing to cancel the trial date which is scheduled for April 22, 2014 (5 days from now) with a brand-new Plaintiff.
Under Florida Rules of Civil Procedure, an action cannot be even requested to be set for trial until 20 days after the last pleading is served. After that occurs, a request can be made for a trial date, but the trial date cannot be for at least 30 days following the date of the request.
As the Court granted the homeowners’ Motion to assert a new pleading in the form of amended affirmative defenses based on the change of the Plaintiff, the action was, today, no longer able to be set for trial, and due process codified in the Florida Rules of Civil Procedure and case law would not permit the case to even be set for trial until sometime in June, 2014 at the earliest.
However, the Manatee County, Florida Circuit Judge refused to continue the trial. When asked what his legal basis for this was, he replied “Because I am a Circuit Court Judge”. Apparently this Judge has unilaterally anointed himself with the power to ignore and refuse to comply with the Florida Rules of Civil Procedure and Florida due process case law.
This type of conduct is exactly the “disparate treatment” we have repeatedly discussed on this website, and is a classic example of why oversight must be immediately implemented in foreclosure courts to insure that the law is complied with, and if a Judge refuses to comply with Court rules or the law, that Judge must not be permitted to handle foreclosure cases.
This example is not the norm, and most Judges we have seen are fair and abide by the rules of law and procedure. However, this example does point to a recent trend of certain Judges to ignore the law and do whatever they want in order to grant a judgment in favor of the “banks”.
Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com