Our Firm had fun yesterday by welcoming the children of our employees to share “Bring Your Kids to Work” day.

Our Human Resources Director, Renee Govig, organized an educational and fun experience for all our future leaders. She was joined by her assistant, Lindsay Radziwon, and many others here at the firm in delivering the experience, including: Partner, Jack Scarola; Dave True, our Firm Administrator; Dave’s assistant, Erica Matthews; Joan Williams, our Marketing Director; and Robin Kriberney, our Community Relations Director.

The children inspected vehicles involved in automobile accidents and were taught safety while riding in cars by Dave Gilmore, paralegal-investigator. They visited our technology department and were amazed by our IT guys, Curtis Reynolds and Scott Colburn. They went to a travel agency and were taught about how travel happens for everyone. The kids visited with a graphic artist and a graphics arts company, Above & Beyond Reprographics, as well.

A special thanks to all of our employees I have failed to mention for making this such a great day for the children. We were happy to be able to provide an opportunity for our kids to see what their moms and dads do for a living.

After a day of great fun and learning, all the children were ready for graduation:

What was Bayer thinking when they came out with the birth control pill Yaz?

Based on another study, this one published in the British Medical Journal, demonstrates that the key ingredient in Yaz (also in Yasmin and Ocella) causes a six times increase for the incidence of clots in users.

Why is this important? A clot can cause serious debilitating injuries and death. The incidence of stroke, cardiac events and death are real complications in consumers using birth control, such as Yaz, that includes the ingredient drospirenone.

[youtube]http://www.youtube.com/watch?v=69RnZc3oVNM&feature=feedwll[/youtube]

Did Bayer have an alternative to using drospirenone.

Yes. The ingredient, levonorgestrel, demonstrates a lower incidence of venous thrombosis (blood clotting) than does drospirenone.

What could Bayer have done if they wanted to use drospirenone in Yaz, even though they knew it carried a higher incidence of dangerous blood clots? A clear and understandable disclosure would have been called for and one not buried in the fine print.

But it was not to be. Bayer’s advertising for Yaz gave the impression that Yaz was the greatest adventure of a lifetime. Successful, beautiful young women gathering in a bar, discussing the positives and rapidly going through the negatives of Yaz might seem like disclosure, but the visual images were simply overpowering.

Balloons flying through an azure sky, floating over agreen playground, streets and sidewalks. Beautiful, successful appearing people enjoying life. Again, the visuals are over powering. Add to the visuals the powerful music and lyrics with a message of “we are not going to take it anymore” and what should be the real message is lost in the balloons floating into the stratosphere.

A drug that promised sex without the risk of pregnancy; clear, acne free skin; freedom from the pain and bloating of periods; and, well, beautiful people; what young woman could resist?

So what did Bayer probably do? They took advantage of a marketing opportunity and gambled that it would not blow up in their face. They bet that any complications would not result in lawsuits or claims that would approach the profits they calculated could be made. They appealed to young women in a way that promoted success, beauty and fun.

Bayer weighed the injuries and deaths of consumers against the bottom line profits and bet they ultimately would win.

I am saddened that all too often I turn on the television or pick up the local newspaper only to read about another horrific incident of animal abuse; once again it has happened, this time in my own back yard.

A Lantana, FL pet shop owner who had 26 cats, dogs, a rabbit, a bird and a hedgehog seized from her and was jailed on unspecified charges. Authorities also found five dead dogs and cats in her freezer.

There are puppy mills in which sometimes dozens of animals are confined to small cages; destined only for breeding. These animals often never feel the kind touch of a caring human being; receive no comforting petting; and no love at all.

Reports have been developing of even pet store owners breeding animals in cages in their homes in deplorable conditions. Unscrupulous breeders over breeding dogs and cats in order to make a buck are becoming more and more common.

For these reasons, I am proud to say that Lake Worth, Florida has become the first city on the East Coast to ban the sale of dogs and cats in pet stores.  The city of Lake Worth, Florida only allows the sale of dogs and cats on the same property where they were bred, which effectively prohibits pet shops from selling animals.

There is no excuse for abusing animals.  We need stricter penalties, fines and jail time so that people will think twice before they abuse an animal for any reason. Sadly, we still consider pets to be chattel and, as long as they remain property, I am afraid we will continue to lag behind in our own humanity.

Perhaps we should be reminded of what a great and peaceful man once said: “The greatness of a nation and its moral progress can be judged by the way its animals are treated.”

What do you want from the people you elect to public office?

Honesty? Candor? Fairness? Intelligence? Independent thinking? To listen to you, the people who voted them into office?

If only things were that simple. The problem is the noise. At least in Florida, legislators have a great many interests whispering in their ears and, so far, no shouting from constituents.

So, as the Florida legislature drafts, proposes and passes legislation for sweeping changes in the very best interests of the lobbyists whispering to them, let us take a look at the various interests gaining representative and senator attention:

$4.2 million – this is the amount of money spent just in 2011 by the top two dozen companies and special interests in order to court lawmakers.

$45 million – this is the amount of money poured into the 2010 elections by the 30 largest contributors to pick the special legislators we have today.

So, what have the special interests put on their shopping list?

• Walt Disney wants to maintain its tax advantages – bid, $188,010
• Universal wants tax breaks for its film company – bid, $181,549
• The Florida Association of Realtors wants a property tax cut – bid, $275, 500
• Health care and insurance groups want reforms to further improve their already plentiful bottom line – bid, $449,500 from just one of the companies
• Florida Power & Light, TECO, and Progress Energy want permission to tax customers to pay for solar plants – bid, over $748,000
• GEO Group, a private prison company wants, well, to run all Florida’s prisons – bid, $106,000
• Florida Chamber of Commerce wanted to get a very special Senator, John Thrasher, reelected – bid $1.5 million
• Florida Chamber of Commerce wants to better the bottom line of its corporate members, including Publix, Disney, land developers and other interests. They contributed even more to get our special legislators elected – bid $5.5 million
• Florida Chamber of Commerce did not want to lag behind in its efforts, so it continues to give in 2011 – bidding has started at $257,000
• AT&T wants a new phone bill (advantageous legislation) and so they gave and keep on giving – bid, $1.7 million on last year’s lobbyists, $1.4 million on last year’s campaign contributions and $177,847 so far in 2011.

These groups are not letting up either. It is reported that the Florida Chamber of Commerce has 30 lobbyists ram-rodding 65 bills.

It is no wonder that many lawmakers have warm feelings for the Florida Chamber of Commerce. As Rep. Mike Horner, a Kissimmee representative said:

“They are an invaluable ally. My door is always open to the Chamber, and they were very helpful during my election. But we ran on creating jobs. So, the idea that it looks like we may have a pro-business session shouldn’t surprise anybody.”

No, Mr. Horner, no one is surprised in the least. Business groups and corporations have paid well for what they have gotten. We voters just really expected legislators would represent Florida citizens, rather than foreign corporations.

In days of old when knights were bold and gentlemen believed in honor…

In those days of old, if you were to wrong me and failed to pay proper recompense, we dueled…often to the death. Today, in our democracy, we have access to the courts for redress of our differences without you and I being forced to duel.

Our “founding fathers” (Washington, Jefferson, Adams) never expected that politics would become a vocation. They saw political service as the duty of gentlemen owed to their country. It was an honor bestowed to be allowed to represent the people in protecting them and in furthering the best interests of the country or state.

Unfortunately, politics has become a vocation and politicians have strayed from representing the people to efforts at garnering power. Today, in addition to the Florida legislature’s apparent need to legislate in the very best interests of their present constituents by passing legislation aimed at maximizing corporate profits, they have decided to take on the “balance of power” as well.

Our form of government is safe as long as the “balance of power” is maintained between the three branches: the executive branch, the legislative branch and the judicial branch. Our system provides for a workable, but delicate, set of checks and balances meant to prevent one branch from gaining too much power over any other branch.

The Florida legislature, or at least the majority in the House, believes they know better than the founding fathers or, perhaps, they are simply living out their political vocation. In any event, the legislature now deems it knows best how to structure the court system and has just passed a bill identified as CS/HJR 7111. In this bill, the legislature has decided to put upon the people of Florida a constitutional amendment to recreate the way in which the Florida Supreme Court is structured, the way in which it operates and, ultimately, the seat of power over the judicial branch.

But why? Legislators have postulated several reasons for why this amendment is needed.

They say that death penalty cases can be moved more quickly to execution. According to former Supreme Court Justice, Raoul Cantero, this is completely untrue:

Mr. Cantero agreed they can take years to navigate the justice system, “but very little of that time is in the Supreme Court,” he said. “It’s just not the case that the Supreme Court is holding them and not deciding them.”

The Tallahassee.com reported one legislator’s and one former Governor’s view on the legislation:

The legislator said he wants to improve the court’s efficiency, including dealing with death-penalty cases. But a bipartisan group of former justices, former and current judges, former U.S. Sen. Bob Graham and Florida Bar leaders spoke out Thursday saying those reasons are without merit.

The legislators also maintain that specialization is important. One House member pointed out that: “The civil side can take away your property and your money. The criminal side can take away your liberty and your life.” Well, yeah, but this ignores the balance the court needs to arrive at many of its decisions. Some decisions find their basis in a mix of civil and criminal law. In addition, the Supreme Court is a court of review. The Supreme Court largely decides cases based on procedural and constitutional history and law; those are their areas of specialization.

The bill passed by the house also provides for additional provisions that would effectively do nothing but allow for “court packing”. They would allow for the party with the most power to pack the court with “their people” and maintain that control for as long as eight years or more at a time. Again, not really keeping with the whole “balance of power” portions of the constitution.

In a time when politicians claim they want less government, lower taxes and less spending, this proposal is an unnecessary expenditure of money; since some have estimated that restructuring the court will likely add many millions of dollars of overhead to an already operating fund starved court system.

Let us look at a couple of issues behind the legislative and executive branch that could be the motivation for this desire to restructure the balance of government power.

Some of the legislators involved in this court restructuring tried to get a couple of constitutional amendments placed on the ballot during the last election season. The Supreme Court found those constitutional amendments did not comply with the law because the summaries did not reflect the full or true nature of what the actual amendment was meant to do.

For all amendments, the Supreme Court is required to approve the amendments to confirm their form is in compliance with the law before they can be placed on the ballot. Every amendment you read on a ballot has gone through this very same vetting by the Court. Each election season, amendments are approved and disapproved by the Supreme Court. The Court quite often finds amendments do not conform to the law and exclude them from the ballot.

So, you decide. Is this an effort at necessary restructuring to solve a real problem or are these efforts simply in search of a problem that really does not exist? Are the real goals for the proponents of this constitutional amendment bill to improve the efficiency and specialization of the Court or to simply improve their own ability to control the Court?

Please just take a moment to concentrate.

Close your eyes and try to imagine that you are lying back in a bed. This bed has not had the bed clothes changed for a while and you are currently laying in feces and urine because you are not able to get out of bed by yourself. You have not seen anyone come by or into the room for several hours. You have open bedsores that, although bandaged, are infected and now soaked with urine and feces. You are 85 years old and during your life you helped a great many people and contributed to many people’s lives. You want to cry, but the tears will not come.

Sound severe? Sound like it is exaggerated?

I have been involved reviewing and evaluating a number of claims for nursing home negligence and abuse over the years for both the defense and the plaintiff. This story is not an exaggeration and it is not too severe.

There are many good nursing home facilities and, although some are better than others, most make an honest effort at reasonable care for those to whom we owe good care – our elderly citizens. For those who have contributed to our society over the years and for those who often can not care for themselves.

Sadly, there are those nursing homes that are not good and who do not staff sufficiently to properly take care of the people they have promised they would. There are facilities in which the interests of the owners are to make as much money as possible and to do so with as low an overhead as they can possibly have. There are nursing homes in which the staff is so low that needy patients go hours and sometimes days without any meaningful care.

The Florida legislature currently has proposed to pass Senate Bill 1396, relating to the liability of nursing homes for negligence and gross negligence. The bill has nothing to do with improving nursing home care or helping to ease the burdens of the elderly.

What the legislature has done with this bill is go out of the way to protect the best interests of nursing home owners; there boards of directors and virtually all the management level people. The legislators have engineered a procedure requiring a hearing in order to substantiate claims against these officers and the bill seems a little unclear to me whether they are going to permit the hearing to occur after the injured nursing home resident is permitted to conduct discovery of facts and documents or before.

The proposed bill also has legislators fixing the value of elderly people at $300,000. The facts do not matter; it does not matter how much you loved mom; it does not matter that, but for the abuse, mom would have lived another 20 years; mom is not worth more than $300,000 according to Florida legislators. In addition to this, legislators also employ some legal maneuverings to limit damages even more if the injured elderly person dies.

The legislators have also crafted some language to protect the corporate officers and the corporation owning the nursing home. The corporation and its officers can only be held liable for punitive damages if the intentional misconduct or the gross negligence was “condoned, ratified, or consented” to by the “officers, directors, or managers of the actual employer corporation”. So, if the corporation is not spending the money to provide supervision of their nursing aides and they allow grandma to be ignored to the point she dies, the corporation can not be held liable for the damages unless specific knowledge can be proved.

Should this bill pass, the only objective thing, which can be said about it is that running a nursing home in Florida just got a great deal more profitable and being elderly in Florida just got a great deal more scary.

Ever been cancelled by your insurance company; even though you reported no losses for years, maybe decades?

The Florida Senate and the Florida House are fast tracking a bill relating to property insurance in Florida. And, that sounds good on its face, but is it good for homeowners?

Easy answer is it is not good for homeowners, but it is simply one of many bills that legislators are trying to pass that will help big business (not small business owners) and will hurt consumers. This bill will severely limit coverage available to consumers and provides no reduction in premium that in any realistic way corresponds to the loss by consumers.

Let’s take a look at the latest version of Senate Bill 408 – An Act Relating to Property and Casualty Insurance; shall we?

Florida is a big sand bar. Sinkholes are a fact of life; even though they happen rarely. The damage, which can be done by a sinkhole is typically substantial.

The new law will limit coverage for sinkholes to only the “principal building”. So, no coverage for your unattached garage unless the insurance company specifically agrees to add it. In addition, there is no longer the standard deductible; insurers will now be able to charge a deductible equal to “1 percent, 2 percent, 5 percent, or ten percent of the policy dwelling limits”. So, if you have $250,000 in dwelling coverage, you could have a sinkhole damage deductible as high as $25,000.

Question: is there a sinkhole crisis in Florida that would compel the legislature to limit consumers’ rights and additional benefits to protect insurance companies?

Now, though, through a carefully worded disclosure, insurance companies are not required to offer sinkhole coverage as long as they “inform” policyholders of the following:

“Your policy provides coverage for a catastrophic ground cover collapse that results in the property being condemned and uninhabitable. Otherwise, your policy does not provide coverage for sinkhole losses.”

If a sinkhole collapses the corner foundation and requires $30,000 in structural repairs, but does not cause your property to be “condemned and uninhabitable”, there is likely to be no coverage. If there is coverage, your deductible may be high enough that there may as well not be any coverage.

If you file a claim, this is how the process goes under Senate Bill 408.

The insurance company hires the professional engineer to determine if sinkhole activity has occurred and the extent of repairs necessary according to the engineer hired by the insurance company. The insurance company does not have to pay for repairs not found necessary by the insurance company paid engineer.

What happens if the insurance company paid engineer finds no sinkhole loss and after you have refused to withdraw the claim, but you refuse to withdraw it? The “policyholder shall reimburse the insurer for 50 percent of the actual costs of the analyses and services provided…”

What if you must file a lawsuit against the insurance company? The new law says that the burden of proof shifts in favor of the insurance company and its engineer:

“…the findings, opinions, and recommendations of the professional engineer as to the land and building stabilization and foundation repair…shall be presumed correct…”

In English, this means that you must go into court, the judge is going to start out believing the findings of the insurance company paid engineer and you will be required to prove that he or she is wrong and why.

So, let us assume that you have a sinkhole loss that the insurance company agrees to and pays for repairs. If that happens, under Senate bill 408, you are required to record in the county records that a sinkhole loss occurred to the property. In addition, if you sell your house, you are affirmatively required to disclose to a buyer that a sinkhole loss occurred. Now, if we assume that the insurance company’s engineer properly identifies all the necessary repairs; the insurance company pays the correct amount; and the insurance company’s contractor properly makes the repairs; the house should be fine now. Well, maybe. The new law specifically waives any liability upon the insurance company for the negligence of the insurance company paid engineer in finding all the damage or proscribing all the appropriate repairs.

Why should a paper have to be recorded to notify the world of sinkhole damage; why is there an affirmative duty to disclose the nature of sinkhole damage; and why such a large deductible for sinkhole claims? Because these three things combines will discourage homeowners from reporting sinkhole claims. The insurance companies know this; your legislators know this; and both of them are chuckling all the way to the bank.

When can you file suit? Well, you must agree to non-binding, but mandatory, “neutral evaluation” before you may file a lawsuit (now, keep in mind that your house is damaged through this whole process). The “neutral evaluator” must “make reasonable efforts” to hold the evaluation conference within 90 days, but the failure to accomplish it in 90 days does not invalidate the requirement to still go forward with it. After the “neutral evaluator” gets around to evaluating, he or she has 14 business days (effectively three weeks” in which to issue a report.

So, if you suffer sinkhole damage to your home. If you are lucky enough to get the insurance company to agree to pay for repairs. If you are fortunate enough to get everything properly repaired, you have probably been living in a damaged home for possibly as long as four to six months. You are also now branded forever with a home that has been documented as having suffered a sinkhole collapse; even though the insurance company’s engineer will assure you that it has all been properly identified and fixed.

So, what is the overriding crisis that is motivating your legislators to pass this type of anti-consumer legislation?

Because they are betting they can get away with it and that you will reelect them anyway. What does that say about what they think of us voters?

Bloomberg has an interesting article today discussing medical device approval and where the fault lies for bad devices being approved for use.

The Food & Drug Administration (FDA) “approves” medical devices and often (some say too often) grants review and approval under Section 510(k) of the Food, Drug & Cosmetic Act. Commonly referred to as “Premarket Notification” within the industry, it is remarkable the devices that are approved for use on consumers with little or, often, no testing.

Under the 510(k) regulations, the device must be “substantially equivalent” to other similar devices already approved by the FDA and on the market. “Substantially equivalent” has a somewhat broad definition:

“The term “substantially equivalent” is not intended to be so narrow as to refer only to devices that are identical to marketed devices nor so broad as to refer to devices which are intended to be used for the same purposes as marketed products. The committee believes that the term should be construed narrowly where necessary to assure the safety and effectiveness of a device but not narrowly where differences between a new device and a marketed device do not relate to safety and effectiveness. Thus, differences between “new” and marketed devices in materials, design, or energy source, for example, would have a baring (sic) on the adequacy of information as to a new device’s safety and effectiveness, and such devices should be automatically classified into class III. On the other hand, copies of devices marketed prior to enactment, or devices whose variations are immaterial to safety and effectiveness would not necessarily fall under the automatic classification scheme.”

The FDA sets forth the elements constituting “substantial equivalence” as:

A device is substantially equivalent if, in comparison to a predicate it:

• has the same intended use as the predicate; and
• has the same technological characteristics as the predicate;
  or
• has the same intended use as the predicate; and
• has different technological characteristics and the information submitted to FDA;
  • does not raise new questions of safety and effectiveness; and
  • demonstrates that the device is at least as safe and effective as the legally marketed device.

A claim of substantial equivalence does not mean the new and predicate devices must be identical. Substantial equivalence is established with respect to intended use, design, energy used or delivered, materials, chemical composition, manufacturing process, performance, safety, effectiveness, labeling, biocompatibility, standards, and other characteristics, as applicable.

So, the general nature of the definition has a foundation in good intentions. The process is intended to protect the consumer, but to not unduly delay technology that has already been tested and should be expediently approved for use on consumers.

The process in place for medical device approval is simply a very slippery slope.

Under FDA regulations, a device can also be considered appropriate for “expedited review if:

• (It) is intended to treat or diagnose a life-threatening or irreversibly debilitating disease or condition.
• The device represents a breakthrough technology that provides a clinically meaningful advantage over existing technology.
• No approved alternative treatment or means of diagnosis exists.
• The device offers significant, clinically meaningful advantages over existing approved alternative treatments.
• The availability of the device is in the best interest of patients.

So, what is at the heart of the 510(k) “substantially equivalent” device approval process? Honesty, candor and transparency must be a central part of it or the process will not work and unsafe devices will be released for use on unsuspecting consumers.

Cardiovascular medical devices have accounted for a third of FDA recalls and many of those devices were originally approved through the 510(k) process. Most recently, a Johnson & Johnson company, Depuy Orthopedics, recalled 93,000 hip implants suspected of unaccounted for failure and the risk of releasing dangerous levels of cobalt and chromium into patients’ bodies.

Perhaps one of the “poster children” for 510(k) failure were intra-articularly placed pain pumps designed to inject pain killers, like bupivacaine, directly into patient joint spaces immediately after surgery. There is nothing wrong with using bupivacaine during surgery to bathe the wound site and provide for some pain reduction in the tissues immediately adjacent to the surgical site. In addition, there is nothing particularly wrong with machines that gauge the injection of pain killers into patients in an effort to both relieve pain and to control patient addiction to the drugs.

What was wrong was the way in which pain manufacturers attempted to get their new machine approved and the untested way in which they knew they would be recommending their device to be used. The various manufacturers submitted 510(k) approvals and provided documentation that their products were substantially equivalent to other similar devices already on the market. Was that true; did their statements come with candor and transparency? Well, the 510(k) submissions were, one could argue, truthful; at least as far as they went in disclosing facts. Unfortunately, it can be fairly said that the manufacturers failed to disclose “the rest of the story”.

The FDA approved the devices, but at least in one case, the FDA specifically forbid the use of the device in orthopedic patients. What the manufacturers did not fully inform the FDA about was their intentions to instruct for use of the device in post operative orthopedic patients by, for the first time, recommending the injection of pain killer directly into the joint spaces. They did not disclose to the FDA they intended to launch intensive marketing campaigns and recommend that physicians implant the drug delivering device into the joint space, but fail to disclose to the physicians that this process had never been tested for safety. They forgot to tell the FDA they would be holding seminars to explain to physicians the best methods for using the pain pumps in the joint space. That entire physician targeted presentations would be disseminated to teach physicians the best ways to code the use of their device in order to get insurance company or Medicare approval for this previously unknown treatment.

As a result, hundreds of, typically very young, athletic patients were sentenced to additional surgeries on their joints; in some cases surgeries requiring complete joint replacements more than once during their lifetimes.

The pain pump manufacturers have tried to justify their actions with a “who knew” defense. They claim that no reliable scientific evidence existed that would have provided warning for the use to which they recommended their device.

That is not entirely accurate either. At least one study did exist before the pain pumps received approval that should have caused concern for everyone. That study was not a part of any manufacturer’s submissions to the FDA. But, largely insufficient studies existed because the pain pump manufacturers failed to fully disclose how they intended to use their devices and failed to tell the FDA that the use was a new, untested and novel approach. It was the failure on the manufacturers themselves to conduct premarket testing and evaluation that created the lack of studies and their deceptive defense.

Did the system fail? Yes and no. One might argue that had all the procedures been followed and all regulation complied with, the system would have worked quite well. So, should we criticize the FDA for their failure to ask just the right questions or should manufacturers of recalled devices be held accountable for “honesty, candor and transparency”… or the lack thereof.

Imagine you own a home – free and clear—no mortgage, no liens, it is all yours. Imagine you are advised that a bank has shown up at your property to foreclose on “their” mortgage and take possession of your property. Just a mistake, right? You talk to the company, they back off and you go on about your business.

Imagine that several months later you learn that the “free and clear” home has been foreclosed on; the bank has broken in, changed the locks and thrown away all the contents of the home.

Could not happen? Think again, because it did.

It has required the home owners to sue the bank with whom they apparently had no mortgage relationship and are now in the process of being required to litigate the matter. (Cardoso v. Bank of Am., No. 1:10 CV 10075, D. Mass.).

What about home owners who have worked out loan modification agreements with lenders who come home to find locks changed and homes seized.

Or, homeowners who have no relationship with “Bank A” coming home to find that “Bank A” has broken in, changed the locks and taken possession of…, oh, sorry the wrong home.

These are just a few actual examples of the problems being experienced by homeowners across America in the midst of robo-signing of foreclosure court filings and the apparent complete breakdown of communication between banks and their “servicers”

In the real estate boon, more than ever before, banks and mortgage institutions engaged in the securing of mortgages only to bundle large numbers of individual mortgages together and sell them off to other institutions. The other institutions, in some cases, sold all or part of those bundles to other institutions, who bundled various of the mortgages and sold to other institutions and so on.

Before the big boon, the mortgage company “servicers” were largely restricted to sending out statements and collecting payments. With the filing of over 2.9 million foreclosures (2010) came an expanded role for servicers. They began dealing with servicing securitized loans, dealing with delinquent loans, performing property preservation and changing locks to keep out homeowners. Often servicers are not paid until they accomplish their job– taking possession of the home.

In some cases, servicers have been involved in negotiating loan modifications under the government legislation called the Home Affordable Modification Program (HAMP). Often, the people handling the loan modification work-outs are simply not communicating with the people handling the foreclosure process. This results in people who, in good faith, believed they had reached agreements to satisfy their mortgage holders coming home to homes with changed locks and furniture piled up out front or gone altogether.

In many foreclosure cases the institution trying to foreclose can not or does not properly produce any reliable documents to prove they actually hold an interest in the property upon which they are trying to foreclose because the mortgage has been sold so many times to so many banks. If fact it may be fair to wonder whether homeowners really have any idea who their mortgage companies really are and mortgage holders are apparently having the same problem.

What can homeowners do?

• Know who your actual mortgage holder really is and the legal connection with any other entities, such as service providers.
• If something has happened in your life and it is causing a financial crisis requiring you to temporarily become delinquent in your mortgage, contact your mortgage holder.
• Do not ignore your mortgage company. If they are contacting you and you are behind in mortgage payments, they are not going away and ignoring them is the fastest way to compel them to action.
• Document, again, document all your contacts with anyone connected with your mortgage. Confirm with written follow ups of agreements and conversations.
• Do not fly blindly. If your mortgage company tells you something you do not understand ask them to explain it to you until you do and, then, document the explanation.
• If you think you are over your head in the process, consult with an attorney. Consulting an attorney for advice or to better explain a particular point does not require that you hire that attorney permanently.
• Be honest and realistic with yourself and with your mortgage company.
• If you believe your loan is heading for foreclosure despite your best efforts, consult an attorney for advice.

And, by all means, if you come home to a locked house, furniture in the front yard and a foreclosure notice on the door, but you are not behind in your mortgage, contact an attorney and the police immediately.

If you and I enter into a contract and one of us believes the other has defaulted under the contract, the party believing they have been wronged can file a lawsuit and ask the Court for a solution to their cause(s) of action. That is a right guaranteed in the United States and the Florida constitutions.

That right, though, is not one sided though; rather it is designed to be a process meant to provide a level and fair playing field for all involved pasrties.

Foreclosure lawsuits have become an enormous burden on the court system and a correspondingly heavy burden on tax payers. In one respect it seems somewhat straightforward to state that if a homeowner has not paid their mortgage, then foreclosure and eviction from their home is the appropriate remedy. The problem, however, is that rules exist for the conduct of lawsuits. It is tempting to sacrifice justice for sake of what appears to be justified expediency, but that is a temptation which the rules of court exist to prevent.

Everyone should be permitted to litigate under the same rules; applied equally. Rules requiring affidavits to authenticate documents; rules designed to require that pleadings be set forth in a certain way; rules that prohibit one party from speaking to judges about their case outside the presence of the opposing party; these are all rules in place for good reason.

So, it is with some surprise that I read, first an article, next a lawsuit, and finally, the exhibits in a foreclosure case in which the American Civil Liberties Union (ACLU) has filed an unusual pleading with the Second District Court of Appeal. Typically, Courts of Appeal hear facts and law involving specific cases, without much extraneous information about the background of other, similar case. In this newly filed pleading, though, the ACLU is effectively requesting the Court of Appeals to take note of a series of procedures set up to handle an enormous volume of foreclosure cases in one circuit court. It is the position of the ACLU that the procedures being used to process foreclosure cases set an unlevel playing field, tipped in favor of banks and against those at risk of losing their homes.

Affidavits have been filed by several attorneys and attached to the ACLU pleading. These affidavits largely set forth very similar problems, such as:

“Among the procedural deficiencies I have observed in· Lee County foreclosure proceedings is the systematic failure to enforce Florida Rule of Civil Procedure 1.510(e). The plain text of that rule requires that sworn or certified copies of all papers referred to in an affidavit submitted in connection with a motion for summary judgment must be attached to, or served with, the affidavit.  The rule applies to all civil cases, including foreclosure cases.”

“Another procedural deficiency I have observed regularly in Lee County foreclosure cases is that judges routinely grant a plaintiff’s motion for summary judgment when a defendant has pending discovery requests.  In my own cases and in those I have observed in open court, I have seen plaintiffs prevail on summary judgment motions even when they have failed to respond to valid discovery requests relating to central aspects of the case and when motions to compel discovery remain pending.”

“Judges stating that if the homeowner is in arrears with their payments, foreclosure is the appropriate remedy.”

“Once at trial, foreclosure cases continue to depart from established rules of procedure, typically to the disadvantage of defendants.  Although the orders setting trial require plaintiffs to produce witness and exhibit lists within five days of the order’s issuance, plaintiffs routinely ignore that rule.  In my own cases and based on my observations of trials, I have frequently seen plaintiffs put forward witnesses or introduce exhibits that were not disclosed until the very eve of trial, or even on the trial date itself.  Yet judges presiding in foreclosure cases routinely ignore objections to such evidence being untimely presented, creating a situation where defendants cannot properly prepare to refute evidence at trial.  As a result, foreclosure trials proceed as if they were hearings in small claims court, notwithstanding the very high stakes involved for homeowners facing the prospect of foreclosure.”

Although the problems identified in the ACLU pleadings seem of significant concern, hopefully they are simply the result of an over taxed system without sufficient resources to properly oversee what is an immensely important process.

It is most certainly an important process to anyone being forced from their home.