How to Deal with the “Free House” Bias

If you are dealing with a bias held by most judges the only effective way of dealing with it is to meet the challenge head-on. If you dance around it it looks like you are trying to “get off on a technicality.”

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A client asked me this morning about he “free house” bias and whether that will interfere with the decisions and ruling of the court. The answer is “of course it does.” And I again raise the issue that nobody wants to talk about — whether it is right or proper to voir dire the judge not just for bias, but for prejudgment decision before the case started. Here is the response I sent:

The answer to your “free house” question is this: You are correct in identifying that problem. We always start with presumption that the presiding judge will carry that bias with him/her into the courtroom.
However, as I have repeatedly found, once you pierce the foreclosure case, the credibility of the would-be foreclosing party declines to the point where the biased judge will ordinarily rule in favor of the homeowner — faced with inescapable legal defects in the position and assertions made by parties without standing.
But there are exceptions — judges who, in addition to having bias, have already ruled in their minds. For them the proceedings are a sham requirement and a test to see if the judge can APPEAR fair and impartial.
Countering the “free house” mindset first requires a demonstration that the homeowner is well aware that he can neither seek nor get a free house. That requires a presentation that concedes the fact that even if the note and mortgage were completely void, the debt remains and a judgment on that debt will result in a  judgment lien that could be foreclosed by the owner of that debt. That “concession” take the angst out of the “free house” conundrum for the judge and will often be an effective predicate to establishing the primary defense narrative.
So the question is not whether the homeowner will get a free house; it is whether this party seeking to foreclose title and take possession of this home has any right to do so. To say otherwise would be an invitation for anyone to fabricate documentation and foreclose, especially in cases where the homeowner concedes, relying upon false documentation of a false party. That scenario I have seen multiple times where the foreclosure is complete, the homeowner has moved out and basically forgotten about the house. The homeowner is later served with process or given notice that the house was foreclosed AGAIN by a different party.

BIAS IN THE COURTS: UCC and TILA REVIEW

Our legal history has many examples of enormous errors committed by the Courts that were obvious to some but justified by many. The result is usually mayhem. The cause is a bias toward some underlying fact that was untrue at the time. Some examples include
  1.  the infamous Dred Scott decision where the Supreme Court ruled that a black man is not a person within the meaning of the constitution and therefore could not sue to protect his rights because he was not a citizen by virtue of the FACT that his ancestors had been brought to America as slaves. The underlying bias was considered axiomatically true: that “negroes” were fundamentally subhuman. It took a civil war that took 500,000 casualties and a constitutional amendment to change the results of that decision. We are still dealing with lingering thoughts about whether the color of one’s skin is in any way related to our status as humans, persons and citizens.
  2. the internment of Japanese Americans during World War II. The Supreme Court upheld that decision on the basis of national security. The underlying bias was considered axiomatically true: that people of Japanese descent would have loyalty to the Empire of Japan and not the United States. People of German descent were not interred, probably because they looked more like other Americans. As the war progressed and the military realized that people of Japanese descent were resources rather than enemies, the government came to realize that acknowledging these people as citizens with civil rights was more important than the perception of a nonexistent threat to national security. Americans of Japanese descent proved invaluable in the war effort against Japan.
  3. the Citizens United decision in which the Supreme Court gave the management of corporations a “Second vote” in the court of public opinion. The underlying bias was considered axiomatically true: that entities created on paper were no less important than the rights of real people as citizens. The additional underlying bias was that corporations are better than people.
  4. the hundreds of thousands of decisions from thousands of courts that relied on the fictitious power of the court to rewrite legislation that Judge(s) didn’t like. A current perfect example was reading common law (inferior, legally speaking) precedent to override express statutory procedures for the exercise and effect of statutory rescission under the Federal Truth in Lending Act. Over many years and many courts at the trial and appellate level the Judges didn’t like TILA rescission so they changed the wording of the statute to mean that common law procedures and principles apply — thus requiring the homeowner to file suit in order to make rescission effective, and requiring the tender of money or property to even have standing to rescind. This was contrary to the express provisions of the TILA rescission statute. Approximately 8 million+ people were displaced from their homes because of those decisions and the property records of thousands of counties have been forever debauched, likely requiring some legislative action to clear title on some 80+ million transactions involving tens of trillions of dollars. The underlying bias was considered axiomatically true: that the legislature could not have meant that individuals have as much power as big corporation and they should not have such power. Then the short Supreme Court decision from a unanimous court in Jesinoski v Countrywide made the correction, effectively overturning hundreds of thousands of incorrect decisions. A court may not interpret a statute that is clear on its face. A court may not MAKE the law.
  5. the millions of foreclosures that have been allowed on the premise that the “holder” of a note should get the same treatment as a “holder in due course.” More than 16 million people have been displaced from their homes as a result of an underlying bias that was and often remains axiomatically true: decisions in favor of homeowners would give them a free house and decisions that allow foreclosure protect legitimate creditors. Both “axioms” are as completely wrong as the decisions about TILA Rescission.
It is the last item that I address in this article. A holder in due course is allowed to both plead and prove only the elements of Article 3 of the UCC. Article 3 of the UCC states that a party who purchases negotiable paper in good faith without knowledge of the maker’s defenses and before the terms are breached is presumed to be entitled to relief upon making their prima facie case — which are the elements already listed here. Even if there were irregularities or even fraud at the time of the origination of the loan or at a later time but before the HDC purchased the paper, the HDC will get judgment for the relief demanded. A “holder” (on the other hand) comes in many flavors under Article 3 but they all have one thing in common: they are not holders in due course.
The fundamental error of the courts has been to treat the “holder” as a “holder in due course” at the time of trial. It is true that the holder may survive a motion to dismiss merely by alleging that it is a holder — but fundamental error is being committed at trial where the holder must prove its underlying prima facie case. It should be noted that the requirement of consideration is repeated in Article 9 where it states that a security instrument must be purchased by a successor not merely transferred. So regardless of whether one is proceeding under Article 3 or Article 9, no foreclosure can be allowed without paying real money to a party who actually owned the mortgage. The Courts universally have ignored these provisions under the bias that it is axiomatically true that the party seeking to enforce the paper is so sophisticated and trustworthy that their mere request for relief should result in the relief demanded. This bias is “supported” by an additional bias: that failure to enforce such documents would undermine the entire economy of the country — a policy decision that is not within the province of the courts. And deeper still the bias is that it is axiomatically true that the paper would not exist without the actual existence of monetary transactions for origination and transfer of the paper. These “axioms” are not true.
As a result, courts have regularly rubber-stamped the extreme equitable remedy of foreclosure in favor of a party who has no financial interest in the alleged paper, nor any risk of loss or actual loss. The foreclosures are part of a scheme to make money at the expense of the actual people who are losing money. If this was not true, there would have been thousands of instances in which the “holder” presented the money trail that supposedly was the foundation for the paper that was executed and delivered, destroyed or lost. They never do. If they did, the volume of litigated foreclosure cases would drop to a drizzle. And these parties fight successfully to avoid not only the burden of proof but even the ability of the homeowner to inquire (discovery) about the “transactions” about which the paper is referring — either at origination or in purported transfers. Backdating assignments and endorsements would be unnecessary. “Robo-signing” would also be unnecessary. And the constant flux of new servicer and new trustees would also be unnecessary. Many of these events consist of illegal acts that are routinely ignored by the courts for reasons of bias rather than judicial interpretation.
A holder in due course proves their prima facie case by
a) proffering a witness with personal knowledge
b) proffering testimony that allows the commercial paper to be admitted as evidence (the note). This evidence need only be to the effect that the witness, or his company, physically has possession of the original note and presents it in court.
c) proffering testimony and records showing that the paper (the note) was purchased for good and valuable consideration by the party seeking to enforce it. This means showing proof of payment for the paper like a wire transfer receipt or a cancelled check.
d) proffering testimony and records showing that the mortgage, which is not a negotiable instrument, was purchased withe the note.
e) proffering testimony and records that the transactions were real and in good faith
f) proffering testimony that the purchaser of the paper had no knowledge of the maker’s defenses
g) proffering testimony that no default existed at the time of purchase of the paper.
Because of bias, the Courts, just as they did with TILA rescission, have mostly committed fundamental error by allowing to alleged “holders” a lesser standard of proof than the party who is legitimately in a superior position of being a holder in due course. It starts with a correct decision denying the homeowner’s motion to dismiss but ends up in fundamental error when the court “forgets” that the enforcing party has a factual case to prove beyond mere possession of an instrument they say is the original note.
The holder, in contrast to the holder in due course, is not entitled to any such presumptions at trial, except that they hold with rights to enforce. They don’t hold with automatic rights to win the case however.
A holder proves its prima facie case by
a) proffering a witness with personal knowledge
b) proffering testimony and records that allow the commercial paper to be admitted as evidence (the note). This evidence need only be to the effect that the witness, or his company, physically has possession of the original note and presents it in court.
c) proffering testimony and evidence as to the chain of custody of the paper the party seeks to enforce.
d) proffering testimony and records together with proof of payment of the original transaction (a requirement generally ignored by the courts). This means proof that the original party in the “chain” relied upon by the party seeking to enforce actually funded the alleged “loan” with funds of its own or for which it is responsible (e.g., a real warehouse credit arrangements where the originator bears the risk of loss).
e) proffering testimony and records showing that the paper (note) was purchased for good and valuable consideration by the creditor on whose behalf the party is seeking to enforce it. This means showing proof of payment for the paper like a wire transfer receipt or a cancelled check.
f) proffering testimony and records showing that the mortgage was also purchased by the creditor for good and valuable consideration. This means showing proof of payment for the paper like a wire transfer receipt or a cancelled check.
g) proffering testimony and records that the transactions was real and in good faith
h) proffering testimony that no default existed at the time of purchase of the paper. Otherwise, it wouldn’t be commercial paper and the party seeking to enforce would need to allege and prove  its standing and its prima facie case without benefit of the note or mortgage.
It should be added here that the non-judicial foreclosure states essentially make it even easier for an unrelated party to force the sale of property. Those statutory procedures are wrongly applied leaving the burden of proof as to UCC rights to enforce squarely on the homeowner who in most cases is not even a “borrower” in the technical sense. Such states are allowing parties to obtain a forced sale of property in cases where they would not or should not prevail in a judicial foreclosure. The reason is simple: the procedure for realignment of the parties has been ignored. When a homeowner files an action against the “new trustee” (substituted by virtue of the self proclaimed and unverified status of a third party beneficiary under the note and mortgage), the homeowner is somehow seen as the party who must prove that the prima facie case is untrue (giving the holder the rights of a holder in due course); the homeowner is being required to defend a case that was never filed or alleged. Instead of immediately shifting the burden of proof to the only party that says it has the rights and paperwork to justify the forced sale. This is an unconstitutional aberration of the rights of due process. The analogy would be that a defendant accused of murder must prove he did not commit the crime before the State had any burden to accuse the defendant or put on evidence. Realignment of the parties would comply with the constitution without changing the non-judicial statutes. It would require the challenged party to prove it should be allowed to enforce the forced sale of the property. Any other interpretation requires the the homeowner to disprove a case not yet alleged, much less proven in a prima facie case.

Attorney Mark Stopa Shows Guts Confronting Appellate Court Bias

I have just received a copy of a daring and tempestuous motion for rehearing en banc filed by the winner of the appeal. The homeowner won because of precedent, law and common sense; but the court didn’t like their own decision and certified an absurd question to the Florida Supreme Court. The question was whether the Plaintiff in a foreclosure case needs to have standing at the commencement of the action. Whether it is jurisdictional or not (I think it is clearly jurisdictional) Stopa is both right on the law and right on his challenge to the Court on the grounds of BIAS.

The concurring opinion of the court actually says that the court is ruling for the homeowner because it must — but asserts that it is leading to a result that fails to expedite cases where the outcome of the inevitable foreclosure is never in doubt. In other words, the appellate court has officially taken the position that we know before we look at a foreclosure case that the bank should win and the homeowner should lose. The entire court should be recused for bias that they have put in writing. What homeowner can bring an action or defend an action where the outcome desired by the courts in that district have already decided that homeowners are deadbeats and their defenses are quite literally a waste of time? Under the rules, the Court should not hear the the motion for rehearing en banc, should vacate that part of the decision that sets up the rube certified question, and the justices who participated must be recused from hearing further appeals on foreclosure cases.

Lest their be any mistake, and without any attempt to step on the toes of Stopa’s courageous brief on an appeal he already won, I wish to piggy back on his brief and expand certain points. The problem here might be the subject of a federal due process action against the state. Judges who have already decided foreclosure or mortgage litigation cases before they even see them are not fit to hear them. It IS that simple.

The question here was stated as the issue of standing at the commencement of the lawsuit. Does the bank need to have a claim before it files it? The question is so absurd that it is difficult to address without a joke. But this is not funny. The courts have rapidly evolved into a position that expedited decisions are better than fair decisions. There is NOTHING in the law that supports that position and thousands of cases that say the opposite is true under our system of law. Any judge who leans the other way should be recused or taken off the bench entirely.

In lay terms, the Appellate Court’s certified question would allow anyone who thinks they might have a claim in the future to file the lawsuit now. And the Court believes this will relieve the clogged court calendars. If this matter is taken seriously and the Supreme Court accepts the certified question for serious review it will merely by acceptance be making a statement that makes it possible for all kinds of claims that anticipate an injury.

It is bad enough that judges appear to be ignoring the requirement that there must be an allegation that a loan was made by the originating party and that the Plaintiff actually bought the loan. This was an obvious requirement that was consistently required in pleading until the courts were clogged with mortgage litigation, at which point the court system tilted far past due process and said that if the borrower stopped paying there were no conditions under which the borrower could win the case.

It is bad enough that Judges appear to be ignoring the requirement that the allegation that the Plaintiff will suffer financial damage unless relief is granted. This was an obvious requirement that was consistently required in pleading until the mortgage meltdown.

Why is this important? Because the facts will show that lenders consistently violated basic and advanced protections that have been federal and State law for decades. These violations more often than not produced an unenforceable loan — as pointed out in law suits by federal and state regulators, and as pointed out by the lawsuits of investors who were real lenders who are screwed each time the court enters foreclosure judgment in favor of the bank instead of the investor lenders.

It is not the fault of borrowers that this mess was created. It is the fault of Wall Street Bankers who were working a scheme to defraud investors by diverting the real transaction and making it appear that the banks were principals in the loan transaction when in fact they were never real parties in interest. Nobody would seriously argue that this eliminates the debt. But why are we enforcing that debt with completely defective mortgage instruments in a process that confirms the fraud and ratifies it to the damage of investors who put up the money in the first place? The courts have made a choice that is unavailable in our system of law.

This is also judicial laziness. If these justices want to weigh in on the mortgage mess, then they should have the facts and not the stories put forward by Wall Street that have been proven to be pure fiction, fabrication, lies and perjury. That the Court ignores what is plainly documented in hundreds of thousands of defective mortgage transactions and the behavior of banks that resulted in “strangers to the transaction” being awarded title to property — that presents sufficient grounds to challenge any court in the system on grounds of bias and due process. If ever we had a mass hysteria for prejudging cases, this is it.

Courts Tripping Over Themselves Ignoring the Obvious

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At the risk of lecturing judges on the law allow me to point out that the transfer of an apparently “negotiable instrument” is not a transaction that can be interpreted or enforced under the Uniform Commercial Code unless it is accompanied by payment or exchange of value, which is to say that there must be money involved. A loan that was originated without any money from the payee under the note or the secured party under the mortgage is not to be interpreted by reference to the Uniform Commercial Code because of the lack of consideration.

That leaves the pooling and servicing agreement. Employing and servicing agreement specifies the precise manner in which loans can be transferred into the asset pool and one of the things that is not allowed is an endorsement in blank. This provides no protection to the investors which is why the provisions in the pooling and servicing agreement require that the endorsement be in recordable form and in order to the benefit of the investors or the asset pool.

The problem is that the judges are searching for a way to rule in favor of the banks instead of searching for a way to simply rule on the admissibility and credibility of evidence.  It often happens that the attorney for the borrower argues that the Uniform Commercial Code does not allow recipients of a transfer of loan documents,  which then leaves the court to say that the transfer occurred pursuant to the terms of the pooling and servicing agreement. Or some courts seeing that the transfer was not performed in accordance with the terms of the pooling and servicing agreement applied the Uniform Commercial Code even though there is a material dispute of fact as to whether or not any consideration was involved in the transfer of the loan.

If the loan was transferred into the pool pursuant to the pooling and servicing agreement then why were the other terms of the pooling and servicing agreement ignored? I have yet to see any pooling and servicing agreement that provided for an endorsement in blank. Such a thing could not possibly exist since the investors thought that they were buying mortgage-backed securities. The pooling and servicing agreement clearly specifies the method of transfer and clearly does not include an endorsement in blank as an approved method.

The object of the investors was to take ownership of the loans by way of the mortgage-backed securities and distribute the risk and income proportionately to their investments. What the banks did was instead of putting the investors first and inserting the name of the asset pool on the loan origination documents or the assignment executed in the manner provided by the pooling and servicing agreement, they used an exotic and completely unnecessary chain of title for what was essentially a very simple transaction. By having the loan originated by the nominee of a nominee acting under power of attorney they created the illusion that the “holder” of the paper was presumptively the creditor. This is the exact opposite of what the pooling and servicing agreement required; had it been known that they were going to operate this way they never would have received their AAA rating, their insurance, or any credit default swaps. It is clear that they inserted themselves or their nominees as the apparent owner of the debt even know the nominee did not make the loan. It is equally apparent that they inserted themselves or their nominee as the apparent owner of the debt even though they paid nothing for the assignment or transfer of the loan.

If the investment banks had intended to operate properly and legally they would have had no need for any nominees much less the parallel title tracking systems including MERS  and all the other entities that pretend to have business interests even know they were so thinly capitalized and covered by layers of entities whose corporate veils need to be pierced. They would simply have placed the name of the asset pool on the mortgage and note making reference to an actual transaction involving actual money that changed hands between the lender and the borrower.

These nominee entities were planned far in advance as “bankruptcy remote” vehicles through which the bankers could channel nonexistent transactions. By creating the illusion that they were the owners of the debt it appeared as though the note and mortgage were valid. But they could never have been the owners of the debt since it was the investors who actually funded the mortgage. No document exists anywhere in which the investors or the asset pool assigned the ownership rights to the loans to the investment banks or any of their affiliates or nominees.

The courts are not clogged because of the volume of litigation. The volume of litigation is bottlenecked in the courts because the courts refused to accept at face value the pleadings and assertions of both parties and because the courts refused to require both parties to prove their claims. For those that assert their claim as a creditor they need only provide proof of payment and proof of loss, which is to say that they have not resold the  loans or mortgage backed securities.

Instead, the banks insist on arguing for the presumption that a bona fide transaction took place for value in which money exchanged hands rather than being required to prove that assertion by simply producing a canceled check or wire transfer receipt.  If you were the bank and you had proof of your payment and proof of your loss why wouldn’t you end the litigation in the first couple of months rather than let it stretch out for years? It is clear that the banks need judges to accept the presumption because the banks don’t have the actual proof.

http://www.nakedcapitalism.com/2013/04/foreclosure-review-hearings-show-its-time-to-burn-down-the-occ.html

If the Bank Filed Foreclosure Papers, that’s good enough for me — Judge Alan Schwartz, Dade Countyz

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Editor’s Note: This story will probably not end well for the lawyer or his client but he exactly what I would have done (I have cuffs put on me twice). If you are unwilling to hold the trial judge’s feet to the fire (the rules and laws of evidence and procedure) then do NOT accept any engagement in which you are defending someone’s property from an invalid note, a non-existent debt and a unperfected mortgage lien.

I have conducted several background interviews with Judges in many jurisdictions and 100% of them replied that if the bank was going to the trouble of filing the foreclosure (judicial or non-judicial) then the allegations of the bank are obviously true. This creates a presumption in favor of the pretender lenders who are collectively called “banks” even when they are not banks.

Don’t be intimated by men and women in black robes. On the other hand you must show a respect for the judicial system. You may want say “you are biased.” Aggression in court often backfires unless you are saving the big bang for your finale.

A good question to ask any judge is whether they would agree with the statement that where there is smoke there is fire, i.e., if the foreclosure is filed the borrower is obviously delinquent on payments that are due. The burden of proof is thus turned on its head.

If I sue you for a loan I say I made to you then it is up to me to prove I gave you the money and prove the terms of payback (demand, installment etc.). I would also be required to show the court that the Entire accounting for the loan is in my  regular business records, and show that the borrower made some payments but has been delinquent ever since.

I would also be required to say that if I don’t get paid this money I, as creditor, will suffer a financial loss. AND then I would demand judgment for damages for the losses I proved in court and that were allowable by the original contract for loan.

What is wrong with our judicial system is that the Judges are wrong or not properly informed. But many judicial decisions against borrowers are not wrong — they are inescapably right.This happens when you have tacitly admitted or directly omitted a denial of the debt, the note and the mortgage. I’ve seen a lot of “bad” decisions without a hint of bias. If you are going to admit all the elements of a judicial foreclosure, including the amount owed, you are giving the Judge no choice but to enter a ruling against your client.

In short, it isn’t corruption of the fiduciary at work here so much as the omissions of several essential pleadings and admitting the other side is right before you start. When I sat on the bench I was always looking for admissions against interest — another piece of the puzzle out the window. That is how we manage to cut through the bullcrap to what he honestly believe to be the truth of the matter.

If one side is theoretically right and the other side is theoretically wrong, the side that is wrong will win if the opposition fails to deny facts  that are evident as first  glance at he prospectus and Pooling Servicing Agreement.

Judges presume that there would be no action before them in court unless there existed a valid debt or obligation, a valid note and a perfected recorded lien on the property. Thus the borrower is left holding the holographic image of an empty paper bad. The information as to what really went on with the origination of the loan has already been decided in the Judge’s mind. The information concerning funding of the origination of the loan, and then assignments (“for value received”) are all truthful representations, because a bank said them.

The prevention of voir dire to a witness who is about to introduce a fabricated document forged by a robo-signor is the height of judicial arrogance. Preventing counsel to at least defend based upon cross examination of the bank’s “witnesses” (most of whom are incompetent because they lack personal knowledge) is a complete denial of due process and provides another level of judicial arrogance.

Here is a practice pointer and message to judges: Ask for a sidebar in which you remind the judge that he is not here to decide the case until the case is over and there is no demand for a jury trial. His job is not to assess the veracity of the question but only whether it was properly formulated and relates to any of the claims or defenses filed in the record.

Then comes the zinger. You should say to the Judge that if you are already precluding this case by your own bias arising out of the assumption that the banks wouldn’t foreclose unless their claims were true then he/she must recuse themselves. So what is it going to be Judge — bias or the bliss of blind justice?

As you feel the approach of a enraged Judge who is likely to say that he doesn’t’ need a lecture from you on how to be a judge then you should ask him politely who else he can go to in order to prevent his bias from producing an unjust result. If you think he/she is about to explode then add — because it is obvious that you need a lecture from someone.

Before you travel the recusal route be aware that the Judges all talk about you behind closed doors and while they are not supposed to deal with advice on individual cases or lawyers they do it anyway. When the next Judge is assigned he will have heard only the side of the Judge before him and being a judge and expecting the other judges to cover his back, he will try to mend the record such that the committee in charge of judges does not get wind of these antics.

The new Judge will at first appear to be cold and dispassionate, but he is only waiting for the opportunity to do something that will devastate your case. So ask for a sidebar again. And ask the Judge if he is close friends withe prior judge. Ask if he had any conversation with the prior judge regarding this case? What was said? Given that, Judge, my client feels that a fair trial in this county is probably impossible, asking for a change of venue to another county.

Fireworks in open court today. Matthew Bavaro and Judge Alan Schwartz did not see eye-to-eye in today’s Miami-Dade foreclosure trial.

Tuesday 18th December 2012

by mbavaro

Many of you know that I was in trial this morning for a Miami-Dade County foreclosure client. The judge was the Honorable Alan Schwartz. It was quite the show that left jaws dropping in open court. The judge allowed the note and mortgage into evidence without objection from me. Then the bank tried to introduce the Notice of Acceleration and the loan payment history. I objected and asked the court to allow me to voir dire the witness prior to the introduction of the records. This means I asked for the right to questions the witness about their knowledge regarding the records keeping practices of Bank of America. The judge did not allow me to ask any questions at this stage and allowed the documents into evidence over objection.

 

So, the bank rested and I got an opportunity to cross examine the witness, or so I thought. I was barely allowed to even ask a question. He shot me down almost every time I asked something. When I went to put my position on the record, he would not allow me to open my mouth. Well, I am not a wall flower, I am going to stand up for my clients.

 

The acceleration notice that Bank of America sent was invalid in my opinion and about a dozen other judges around the state have found in favor of the homeowner on this very issue with the same acceleration letter from Bank of America. When I raised this to him, he could not believe that I had the audacity to actually ask him to rule in favor of my client. He implied that he is not going to allow a homeowner to stay in their homes without paying their mortgage even if the bank screwed up. When I asked to read the appellate opinions into the record regarding the paragraph 22 defense, his response was basically that he did not care about the letter they sent and the fact that they filed a foreclosure action alone is good enough for him.

 

At that point I asked the judge to respect my client’s due process rights and pointed out that he was ignoring appellate cases from around the state. At that point he turned to the bank’s lawyer and said “I guess I better let Benjamin Cordozo III ask some questions”. I took this as a personal attack on me, so I asked the judge to recuse himself because by making that statement he showed that he could not be fair to me or my client. He then said that I should take it as a compliment, but he clearly did not mean it as a compliment. He meant to insult me in my opinion. I said that not only was it not a compliment, but I believes that the court intended to slight me in the middle of trial in front of a courtroom full of people. He was not too pleased at this point that I was standing up to him. I started to hand write a motion to recuse him on a piece of yellow notebook paper when he then said that he would recuse himself.

 

Afterwards when the court reporter started to get up, he made a number of personal attacks on me. Fortunately, the court reporter got back in her seat and got the personal attacks on the record (hopefully, I am waiting for the transcript). At one point he even said I would have a “short and unhappy career”. I am not sure if that was meant to be a threat or not. Well, Your Honor, I have been practicing law for over thirteen years and, thank the Almighty above, my career has been extremely successful because I work hard, I fight for my clients, and I never roll over and play dead.

In the thousands of cases I have handled, I do not recall ever asking a judge to disqualify themselves, but what is going on in Miami-Dade county before certain judges is a travesty of justice. I see homeowner after homeowner losing their homes every day without regard to due process of law. I even saw Judge Alan Schwartz force a case to trial when the homeowner had a Motion to Dismiss pending that had not been ruled on yet. So, the homeowner did not even get to file any affirmative defenses! The case was not at issue and it was CLEALRLY error to force the case to trial. Of the 40 or so cases set for trial today, my client was the only one who walked out of their without a sale date, except for a couple of cases where the bank failed to show up.

 

Miami-Dade county is just setting hundreds of foreclosure cases for trial at a time without regard to whether any attorney is available or ready. I think this is a problem and shows that in Miami-Dade county, they are just interested in plowing through foreclosures, not administering justice and due process. I am an experienced trial attorney and I will try foreclosure cases all day long because I love fighting for my clients. However, at least give the homeowners a fair shake and rule in their favor when appropriate.

 

Read the recusal order here.

Foreclosure Defense in Miami-Dade

Posted on December 18th, 2012 by Mark Stopa

I don’t know Matthew Bavaro, a fellow foreclosure defense attorney who practices in Miami. However, the story he posted on his blog today struck a cord with me, as it’s eerily similar to an experience I had in Miami a few weeks ago. At this point, it’s time – perhaps past time – that I shared my experience and voiced my concerns.

I had a trial scheduled in Miami, and when I arrived in court, it was apparent that dozens of other trials had all been set for the same time, before the same judge. While it’s never ideal to have to sit around and wait for your case to be called, it gave me the chance to watch other cases. Wow, what a nightmare. As each trial started, the judge made an unsolicited “offer” to defense counsel of a 120-day sale date, advising the defendant that if he/she did not take the deal, the “offer” would be off the table after the trial. That was the judge’s routine procedure – without hearing any evidence, or knowing anything about the facts of the case, the judge was essentially telling the homeowner “you better consent to judgment and accept a sale date in 120 days or I’m going to rule against you and set an earlier sale date.”

Punishing homeowners for going to trial. Wow. Just … wow. That alone is nuts. Candidly, I told that story to a local judge (not a fellow defense attorney – a local JUDGE), and he couldn’t believe it. There is no circumstance – none – where a judge should be taking it upon himself to tell a defense attorney that he is going to lose at trial and he should accept the judge’s deal, and that’s precisely what this judge was doing.

Can you imagine this in any other context? How about a criminal case … judge tells the defendant “you better accept this plea, as if you go to trial, I’m going to rule against you and impose a harsher sentence.” Totally nuts.

Anyway, it only got worse from there. As the “trials” proceeded, they weren’t trials at all. Nobody even sat at counsel table. Instead, the judge forced everyone to stand, right in front of the bench, for the trial. Clearly, the judge wasn’t intending that the “trials” last very long, not even allowing the homeowners or their lawyers to sit down.

As the trials went forward, to my amazement, it was typically not the plaintiffs’ attorneys who were asking the questions, but the judge himself! Yes, instead of forcing the plaintiffs’ lawyer to question the witnesses and prosecute the cases, the judge took it upon himself to prosecute the cases from the bench. That didn’t just happen once or twice, either – it was the judge’s routine.

The combination of what I observed – the judge trying to coerce defendants into settling, then prosecuting the cases for the plaintiffs – convinced me that I could not get a fair trial. So when my case was called, I moved to disqualify the judge.

Once he saw my case was going to be contested, the judge immediately pushed my case to the end of the docket. Hence, I kept watching the same broken record, one “trial” after another.

Finally, it got to my turn. Before the “trial” started, I finished my motion to disqualify the judge. I explained in detail the facts set forth above and how they caused me a well-reasoned fear that the judge could not be fair and impartial. Motion denied.

Then I moved to continue the trial so I could file a written motion to disqualify. Motion denied.

Then I moved for a stay pending appeal, as I was entitled to have the appellate court rule on whether the judge could preside on the case before the trial proceeded. Motion denied.

Then, before the trial began, I argued the plaintiff should not be allowed to introduce certain exhibits into evidence because plaintiff failed to provide copies to me before trial, as the court had ordered. The judge asked the plaintiff if that was true and counsel admitted it was. The judge asked if counsel had an excuse and he had none. The plaintiff was stuck – they violated an order and failed to provide me documents that I was entitled to receive before trial. But instead of punishing or penalizing the plaintiff, the judge ordered the trial was continued so plaintiff could provide me the documents.

I immediately interjected, telling the judge I did not ask for a continuance. The judge seemed surprised, asking me what I thought the remedy should be. I explained that the trial should proceed, but the plaintiff should not get to use the exhibits it failed to provide to me. That would mean, of course, that the plaintiff could not prove its case (and that I would win at trial), and the judge made it clear that wasn’t an option. So the judge again ruled the trial was continued.

How frustrating. The plaintiff screwed up, but I was being forced to come back again on a different day (from Tampa). So I explained how I had traveled to the trial from Tampa, and that I was prepared, so if I had to come again because the plaintiff screwed up, then I should get fees for having to do so. Motion denied (technically, deferred ruling until after the case was over, but basically denied).

These are the facts, as they transpired, as they would appear on a transcript. What the transcript won’t reflect, however, is the indescribably nasty way the judge treated me. The hostility of his tone. The anger in his voice. HOW DARE I come into his court and ask for – no, insist upon! – due process in a foreclosure case. The hostility was so apparent, I felt compelled to say, as the trial was ending “let the record reflect that the judge is staring at me with an incredibly nasty stare,” or words to that effect.

At that point, the judge was truly irate, inviting plaintiff’s counsel to comment about the judge’s demeanor. That prompted me, of course, to ask why the judge was questioning the factual basis of my motion to disqualify him. Then the judge smiled at me, waved, and said “have a nice trip back to Tampa, counselor,” in the most condescending tone I’ve ever heard – not just in a courtroom, but ever.

Read Matthew Bavaro’s post. This isn’t about me, and it’s not about Mr. Bavaro. This is about a court system that is repeatedly and systematically causing experienced, reasonable attorneys to believe there is nothing close to due process or fair trials transpiring in foreclosure cases in Miami right now. Perhaps most alarming is that the judge with whom I had my bad experience was NOT the judge before whom Mr. Bavaro had his. In other words, the issues in Miami aren’t limited to one judge – multiple judges are causing these concerns.

I get that the judges wear the robes and get to make the rulings. They have the authority, and no matter how much I disagree with the rulings, they have to be respected. I get that. And I’m not suggesting that anyone not respect the judges and not follow their rulings. However, when the judges don’t follow the law, and act in ways that make it clear they aren’t comporting with requirements of due process, it’s up to us, as advocates, to do whatever possible – within the law and professional ethics – to compel them to do so. We aren’t doormats – we’re advocates. Even when it’s uncomfortable, we have to act as advocates for our clients.

I left Miami that day with a continuance. In virtually every other case, the Plaintiff got a foreclosure judgment, often with little or no opposition. I talked to several other defense attorneys about the process, and though most shared my concerns, most of them were afraid to say anything or do anything about it (for fear of upsetting the judge). I’m sorry, but being a doormat isn’t the answer.

From what I understand, the senior judges in foreclosure cases get paid $300/day. I’d very much like to think that the Miami judges aren’t rushing through trials in this manner because they’re trying to get through the work day faster. Whatever the motive, however, it’s time – probably past time – that defense attorneys act as advocates and help the judges understand that the processes being described by Mr. Bavaro and myself are wrong.

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