Over the weekend, the New York Times published an article, Florida’s High-Speed Answer to a Foreclosure Mess, that should have brought some important issues to the attention of the broader public-- most specifically, the deterioration of the rule of law that has occurred in Florida's court system. Unfortunately, like much of the Times reporting on the financial crisis, the article was a weak and flawed effort.
Florida courts have perhaps the heaviest foreclosure burden of any state in the country. Approximately 500,000 foreclosure cases were pending in the court system earlier this year when lawmakers put aside $9.6 million in emergency funding for the courts to be used specifically to clear the logjam. Retired judges were hired back to run foreclosure-only courtrooms and help clear clogged dockets.
Are the new courts dispensing a quality brand of justice? According to the Times, judges say yes and foreclosure defense lawyers say no:
Lawyers say judges are simply ignoring problematic or contradictory evidence and awarding the right to foreclose to institutions that have yet to prove they own the properties in question.
"Now you show up and you get whatever judge is on the schedule and they have not looked at the file — they don’t even look at the motions," says April Charney, a lawyer who represents imperiled borrowers at Jacksonville Area Legal Aid. "You get a five-minute hearing. It’s a factory."
But Victor Tobin, chief judge in the 17th Judicial Circuit, which includes Broward County, defended the effort. "There are more assets devoted to those three foreclosure divisions in Broward than to any other division in the building in terms of case managers and that sort of thing to help the general public," he said. "The people who come get fully, fully heard."
In any event, huge numbers of cases are being handled.
"In any event...."
Isn't that what you say when you are presented with contradictory statements, and you really don't care enough to determine which is true?
Example: My daughter was whining that my son was poking her... my son denied this, and cried that my daughter had hidden his toy truck. In any event, I told them that if they did not both start behaving, I was going to send them to their rooms.
Example from the New York Times: Lawyers say that the people are not getting their issues heard by the courts in foreclosure hearings. Judges say that the people are getting proper hearings. In any event, we didn't bother to really determine which statement is true, so it's anybody's guess.
The authors of the New York Times article-- Gretchen Morgenson and Geraldine Fabrikant-- didn't even try to answer what should have been the fundamental question of the article-- are homeowners in foreclosure getting due process in Florida's courts?
The most likely answer, of course, is that it depends greatly on the court and the judge. Even foreclosure defense lawyers are not necessarily claiming that all judges are "simply ignoring problematic or contradictory evidence." Some have in fact highlighted certain Florida courts that they believe are fairly considering the issues of their clients-- see praise here from foreclosure defense attorney Matt Weidner for the Pinellas County (St. Petersburg/Clearwater) courts, for instance.
None of that, however, excuses the New York Times from failing to report the plain fact that at least in many Florida Courts, homeowners in foreclosure are not getting anything but a sham hearing when they contest a Florida foreclosure. Examples of this permeate the public record.
Before I provide just such an example, however, let me back up a second though and examine another excerpt from the New York Times article which will help me lead into my example. Morgenson and Fabrikant write:
Doctored or dubious records presented in court as proof of a bank’s ownership have become such a problem that Bill McCollum, the Florida attorney general, announced last month that his office was investigating the state’s three largest foreclosure law firms representing lenders.
I'm going to try to get past Morgenson and Fabrikant's tortured logic in which the existence of an investigation shows that a problem is getting bad. (No investigation is ever launched for political reasons, for instance?) "Doctored or dubious" mortgage records-- created by the foreclosing banks, their agents, and their attorneys-- are indeed a real problem facing foreclosure courts. The shoddy and/or fraudulent documentation has caused real problems in many instances, such a case where two banks were attempting to foreclose on the same property, and a judge granted the right to foreclose to the wrong bank due to a failure to review the evidence.
Since Morgenson and Fabrikant acknowledge that "doctored or dubious records... have become such a problem," you'd think that they'd include some of the ready proof in the public record of the fact that many courts are not even considering defense arguments contesting the validity of the documents offered as evidence by the banks.
Consider the scene in Palm Beach County just last week, where one of the judges brought out of retirement to help handle that county's foreclosure backlog made it abundantly clear that any inconvenient issues regarding bank documentation would be given short shrift. A foreclosure defense attorney described the scene:
On 8/30, I had a Summary Judgment Foreclosure hearing on Palm Beach County’s "Rocket Docket". The judge spoke for 14 minutes to the crowd, of mostly pro se defendants, about how they should just agree to the summary judgment and the plaintiffs, (whose attorneys (Shapiro & Fishman had a dedicated courtroom and to whom he referred to as "my attorneys") would be gracious (Ha!) enough to allow them to stay in their homes for 120 days if needed (even though the statute says he only has to give them 30). When it came to hearing arguments which were fully briefed and provided to the court (pursuant to the instructions of the Divisions head judge) he only allowed 30-60 seconds for argument, failed to read any of the papers, failed to review the plaintiff’s foreclosure package,flatly ignored the Affidavit filed in Opposition, ignored my plea for a trial, signed the judgment and dismissed me. I never was permitted to even read the proposed judgment or to examine the "newly discovered" allonge which Shapiro’s counsel said I had no right to see. Thank God I had a court reporter!
The transcript reveals a judge who believes in advance that he has heard all possible defenses to foreclosure and doesn't need to pay much attention to any particular one in the future. "I've heard all of that," the judge declares dismissively after rattling off a litany of possible defenses involving the very kind of questionable documentation that Morgenson and Fabrikant say is a legitimate problem.
This judge's rant alone strongly suggests that hundreds or even thousands of foreclosure defendants in Palm Beach County alone probably won't get much of a hearing on their case. His conduct in the very first case following the rant-- in which he failed to read or consider any of the evidence or arguments before ruling in favor of the plaintiff bank, allowing the foreclosure in question to proceed-- proves that at least one defendant didn't get anything but a hearing in name only.
But since they didn't report stuff like this, New York Times readers are left to guess whether or not homeowners in foreclosure are having their issues heard.
Instead, the New York Times reported "an example of how wrong things can go in complex foreclosure cases"-- another case where it turned out that the wrong entity was foreclosing. In the New York Times' world, "things" apparently just "go wrong" because they are "complex." Maybe the issues in the case wouldn't have been so "complex" if the judge had actually done his job and looked at the evidence and read the arguments? Maybe if reporters looked at the issues, they would turn out not to be so complex, and in fact can be described in actual words that readers can understand! Maybe there was an actual, specific reason that the wrong entity was attempting to foreclose in the case cited by the New York Times.
But instead of providing the goods, the New York Times resorts to he-said, she-said quotes time and time again. Instead of actually reviewing documents and testimony in cases that have "gone wrong" and attempting to determine the truth, the reporters merely type out quotes from the opposing sides.
The worst is saved for the end, when an anonymous source is used to dish a mildly scandalous but possibly untrue tidbit about Daniel J. Stern, the owner of one of the largest "foreclosure mill" law firms in Florida:
This being Florida, Mr. Stern also collects boats. A 108-foot Mangusta yacht, Lady J, is for sale at $5.9 million, Web postings show. It was replaced by a 130-foot yacht that cost about $20 million, according to an acquaintance who requested anonymity over concerns about Mr. Stern’s influence in the community.
In a nod to his foreclosure work, according to the acquaintance, Mr. Stern mused about possibly naming the larger yacht Su Casa Es Mi Casa — "Your House Is My House." But his wife and others cautioned against it, according to this acquaintance, and Mr. Stern named the boat "Misunderstood." Mr. Stern denies that he considered the "Su Casa Es Mi Casa" name.
Is this anecdote true? Your guess is as good as mine, because we have no means to evaluate the credibility of the anonymous source. Mr. Stern himself denied it. This excerpt should have never made it to print, and the space could have been devoted to more relevant information about the conduct of Stern's firm and other foreclosure mills like it.
I am really puzzled as to why the New York Times failed to gather much new information on this rich and important topic. These Florida courtrooms are open to the public. Court documents are entered into the public record. Maybe if the reporters had gone to actually witness firsthand what is happening in these foreclosure courts, this would have been an entirely different and better story.