March 21, 2012

During the time that the rash of Attorney General lawsuits against the banks were in litigation over the past several months, foreclosures slowed. However, now that many of these AG lawsuits have been settled, the attitude of the banks appears to be “off to the races” now that the AG’s are not watching over their shoulders. Since these settlements of late, we have been receiving significantly more inquiries concerning foreclosures which have been recently filed, and also as to cases previously filed which were dormant during the AG litigations but which have now “ramped up”. However, court backlogs remain.

Florida is a case in point. State funding for the “rocket dockets” ran out June 30, 2011, resulting in foreclosures which had been assigned to the “rocket docket” being sent back to the presiding Judges. As such, we are now having to wait up to three (3) months to get a hearing on motion calendar in some jurisdictions. This is not a criticism of the system; just a reality. The reality has also been compounded by the over 100,000 foreclosure cases left “up in the air” when the Law Offices of David J. Stern, P.A. ceased operations. 

Another problem is that certain law Firms which are taking over some of the cases filed by the Stern Firm are not examining the court file to ascertain whether the homeowner is represented by counsel, and instead using the service list from the original Complaint for purposes of sending papers filed by the “new” law Firm. This has resulted in homeowners who are and have been represented by counsel being served with court papers, including motions for summary judgment, directly and without their counsel being copied on the papers. This practice of contacting the homeowner directly instead of contacting the homeowner’s attorney of record is a sanctionable offense in Florida with case law to support the imposition of sanctions against the offender.

Another issue concerns the substitution of counsel for the foreclosing Plaintiff. Many of the “foreclosure mills” are being replaced by other Firms, with the files being, in many instances, incomplete. We had instances lately where a “new” law Firm apparently entered an appearance for the Plaintiff, but with that law Firm only copying one Defendant (such as the HOA) and not all counsel of record. In another instance, there was no copy of the Notice of Appearance in the court file, and the “Appearance” was only brought to the attention of the Court by one Defendant’s counsel who received a copy of the Appearance.

A third problem is that certain of the “new” law Firms taking over cases from the mills are sending copies of papers to us in cases where our Firm is not even and has never been counsel of record for anyone in the case. The obvious result is that the proper attorneys for the parties named as Defendants are probably not being copied with filings by the “new” Firms.

Given the amount of pending foreclosures in Florida, we do not expect these problems to be resolved any time soon.

Jeff Barnes, Esq.,