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In Defense of Home…the Rules Should Apply


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.

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