Florida Bar News Publishes Roy Oppenheim's Letter: Foreclosure Jurisprudence

News  •  Jul 01, 2011 05:06 EDT

Florida Bar News Publishes Roy Oppenheim's Letter: Foreclosure Jurisprudence

Foreclosure Jurisprudence    
Florida Foreclosure Defense Letter to the Editor
After reading the News’ article about the upcoming convention seminar regarding foreclosure jurisprudence, I was compelled to write clarifying what was a rather incomplete description of Florida appellate jurisprudence in the wake of the foreclosure crisis. 

While Mr. Coffey’s analysis is focused solely on an appellate review of the crisis, it is important to note the article does little to explain what this truly means in light of the few, but hardly insignificant, decisions that have come down from the appellate courts in this area. 

The changes in Florida jurisprudence have occurred in this area not at the appellate level, but at the trial level where judges have run far afoul of the laws that they are supposed to be upholding. A closer look at the appellate decisions show the majority of lower court decisions are being reversed on rudimentary principles of law. This should call into question just how far astray the judiciary has been led by the crisis, a question that can only be answered by looking not to the appellate level, but to the trial level where the problem truly lies.

There is significant evidence that the judiciary, as it relates to the area of foreclosure law, has suffered from systemic failure to protect homeowners’ interests, and that the appellate decisions in this area, while admittedly scarce in number, are an attempt to reign in just a few of the many blatant errors made by the trial courts in this area of law.

Specifically, appellate courts have not reviewed issues such as ex parte proceedings; improper review by judges of court records; rubber-stamping by judges on documents that are clearly defective and/or inadequate; overworked judges who have allowed the number of cases on their dockets to dictate the judicial oversight given to files, putting into question the propriety of the judiciary and its ability to meet the Code of Judicial Conduct, which requires a judge to “respect and comply with the law and act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” 

The judiciary at the trial level has allowed the system to be manipulated into acting as a private collection agency for the banks, and has received direct monetary benefit from creating a system of rocket dockets that steamrolls over the protections afforded to individuals and their property rights. The clerks, and vicariously the judiciary and retired judges, receive a direct monetary benefit from the filing fees associated with foreclosures, giving the entire system a financial incentive to execute swift justice in order to generate more filing fees. There is substantial evidence that the entire robosigning crisis could have been avoided had the Bar and the judiciary heeded warnings from defense attorneys three years ago. 

The judiciary also failed to provide the required substantive and procedural checks and balances, allowing into evidence affidavits that contained a substantial amount of hearsay, a practice that would never have been tolerated in any other area of law. By creating “special dockets,” the judiciary has prevented defense attorneys from putting on a substantive case prior to summary judgment, and judges have time and again shown their lack of preparation prior to such hearings, as evidenced by the fact that they have not read the motion to be heard, or the responsive memorandum prior to presiding over a hearing. Further, the trial courts have tolerated a legal fiction of “coverage counsel” where attorneys not of record show up to represent banks at motion calendar. Such practice would never be tolerated under ordinary circumstances.

I hope this letter helps to elucidate how appellate treatment of this crisis has truly enforced what defense counsel have been saying for years, that the trial courts in Florida, until most recently, have not been protecting the interests of homeowners, but rather the interests of the banks, and have done so through systemic violations of procedural due process, substantive due process, and other constitutional protections that go to the heart of the judicial oath of office and to protecting the integrity and respect of the judicial system. 

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