Abigail Field in The Foreclosure Mess: Florida Judges can do better states
In the face of banks’ rampant disregard for the law in pursuing foreclosures with false paperwork, the judiciary has started to emerge as the great defender of due process and the rule of law.
For example, in October, New York put an end to the fraudulent document problem in its courts. Some Ohio courts started making similar efforts. And on Monday, New Jersey put in place rules to end document fraud in its system. New Jersey also called out major banks and demanded they affirmatively demonstrate that their foreclosure procedures are sound. This list of judges standing up for the system is hardly exhaustive.
In each case, the judges made clear they weren’t picking sides. They were merely enforcing the rules, making sure the banks didn’t get special exceptions unavailable to anyone else.
Split-Second Justice
Unfortunately, not all judges are responding to the foreclosure mess this way. Those in Florida have been particularly notorious, and new rulings show at least some members of the Florida judiciary seem more committed to speeding foreclosures through to completion than anything else.
For example, Florida’s infamous “rocket dockets,” in which a foreclosure case can take mere seconds or a few minutes to complete, continue. The Lee County court schedule for December shows two days with over 60 cases scheduled, two with over 25 and one with four. (No other days have cases scheduled.) Given the length of the court day, 25+ cases in a day amounts to at best several minutes a case. Attorneys defending foreclosures have taken several days to deal with just one.
She makes the point that it doesn’t have to and should be this way. The Florida Supreme Court clarified the rules twice and lower courts still ignored it:
Sadly, when the Florida Supreme Court acted last February to improve the integrity of its process by requiring foreclosing banks to verify the accuracy of their attorneys’ filings, the rule was widely ignored, reported the Herald-Tribune. Attorneys claimed it wasn’t yet in effect. So the Florida Supreme Court clarified in June that the rule was indeed in effect.
But now, the Daily Business Review explains, the rule is being bypassed by a new type of robo-signing: The bank employees who sign as having verified the documents aren’t actually checking their accuracy. Another twist: In some cases the same attorneys preparing the filings are signing as verifying the filings. It seems the Florida Supreme Court has quite a challenge on its hands getting its lower-court judges and the attorneys practicing before it to respect the rules for foreclosure cases.
Here’s a crucial point: demanding that banks play by the same rules as everyone else isn’t some abstract and empty ideal that puts form over substance. Despite the banks’ claims to the contrary, their document problems aren’t purely technical. The banks’ records are in such poor shape — the very records used to create the foreclosures — that, as The New York Times has reported, banks are breaking into homes they haven’t foreclosed on.
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