Miami-Area Foreclosure Defense Attorneys Concerned Over Court's Expressed Goal Of Bulldozing 52,000 Foreclosure Cases Off The Docket By June

In Miami, Florida, the Daily Business Review reports a story on the Miami-Dade Circuit Court's recently announced goal of bulldozing 52,000 foreclosure cases out of the judicial pipeline by June. Naturally, the foreclosure defense bar expresses concern:

• [T]he creation of a foreclosure master calendar heard by senior judges whose sole task is to consider summary judgments and clear dockets causes attorneys for homeowners to fear the system is biased toward lenders.

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• [T]alk of quotas and case closure goals is enough to worry foreclosure defense attorneys like Christopher Black. Although none of his cases has gone to summary judgment in the new court on the third floor, Black, a Miami solo practitioner, said he’s uncomfortable with how the system has been created.

• “It appears on its face that the task is simply to move these foreclosure cases along as fast as possible. And the fastest way to move it along is a summary judgment, which is inherently against the interests of the homeowners,” he said.

• Similar worries plague Rafael Recalde, another Miami solo practitioner. By his own account, he has been on the master calendar more than a dozen times. He said he often sees judges often ask how old a case is, and the older it is the more aggressively they push it. “In many cases, there will still be discovery pending or affirmative defenses,” he said.

• Recalde said the entire docket-clearing strategy is based on a single premise -- borrowers who lose their homes don’t have the money for an appeal. He also questions the motivation of judges. “It’s almost like regular laws and rules of procedures don’t apply to bank attorneys.”

• Boca Raton foreclosure defense attorney W. Jeff Barnes, who runs the blog ForeclosureDefenseNationwide.com, questioned a summary judgment order issued by Senior Judge Jeffrey Rosinek on Sept. 7 -- the same day Barnes received notice of the hearing.

• “This procedure flies in the face of recent Florida case law, which provides that any final order entered without notice is void and subject to being vacated. As such, the Miami-Dade Circuit Court has probably served to further clog its dockets with a deluge of motions likely be filed by those who never received notice from the master calendar of a summary judgment motion,” Barnes wrote last week.

• Judge Jennifer Bailey, who supervises the foreclosure program, said not all criticism is valid. She noted borrowers’ attorneys sometimes use discovery and other maneuvers for no other reason than to delay cases while mortgages go unpaid. “They can’t just file discovery as a stalling tactic and expect that to delay summary judgment. If they pursue the discovery in a diligent way, then that’ll affect the court’s consideration of summary judgment. Every individual case gets evaluated on its merit,” she said.(1)(2)

For the story, see Miami Court Aims to Clear Out 52,000 Foreclosure Cases by June (Case closure goals at Miami-Dade Circuit Court worry defense attorneys).

(1) In the context of properly serving defaulting homeowners with notice of a foreclosure action, Judge Bailey was quoted as saying:

• "[I]f people don’t get served, all we’re doing is buying ourselves a bunch of title cases in six years.” (Daily Business Review: Judge grapples with her discovery of 15,000 unserved foreclosure cases) (emphasis added).

Before concluding that discovery requests are nothing more than stalling tactics, Judge Bailey may want to carefully consider whether her earlier observation on the consequences arising when homeowners are improperly notified about foreclosure actions is equally applicable when foreclosure actions are improperly prosecuted.

(2) It seems clear that, unless a trial judge is prepared to clearly articulate a finding that the discovery request in a particular case is a stalling tactic, or that the discovery requested is otherwise irrelevant to the pleadings, granting summary judgment while discovery is pending is improper. See, for example:

Payne v. Cudjoe Gardens Prop. Owners Ass'n, 837 So. 2d 458 (Fla. App. 3d DCA 2002) (try here for 'Lexis' version):

• It is axiomatic that Summary Judgment may not be granted unless the moving party is able to show that no genuine issues of material fact exist. See Holl v. Talcott, 191 So. 2d 40, 43-44 (Fla. 1966); Kemper v. First Nat'l Bank of Dayton, Ohio, 277 So. 2d 804 (Fla. 3d DCA 1973).

• Where discovery is not complete, the facts are not sufficiently developed to enable the trial court to determine whether genuine issues of material facts exist. See Singer v. Star, 510 So. 2d 637, 639 (Fla. 4th DCA 1987).

• Thus, where discovery is still pending, the entry of Summary Judgment is premature. See Smith v. Smith, 734 So. 2d 1142, 1144 (Fla. 5th DCA 1999)("Parties to a lawsuit are entitled to discovery as provided in the Florida Rules of Civil Procedure including the taking of depositions, and it is reversible error to enter summary judgment when discovery is in progress and the deposition of a party is pending."); Henderson v. Reyes, 702 So. 2d 616, 616 (Fla. 3d DCA 1997)(reversing the entry of Summary Judgment where depositions had not been completed and a request for the production of documents was outstanding.); Collazo v. Hupert, 693 So. 2d 631, 631 (Fla. 3d DCA 1997) (holding that a trial court should not entertain a motion for summary judgment while discovery is still pending); Spradley v. Stick, 622 So. 2d 610, 613 (Fla. 1st DCA 1993); Singer v. Star, 510 So. 2d 637 (Fla. 4th DCA 1987).

Fleet Fin. & Mortg. v. Carey, 707 So. 2d 949 (Fla. App. 4th DCA 1998):

• This court has held on many occasions that "a court should not enter summary judgment when the opposing party has not completed discovery." Lubarsky v. Sweden House Properties of Boca Raton, Inc., 673 So. 2d 975, 977 (Fla. 4th DCA 1996) (quoting Brandauer v. Publix Super Markets, Inc., 657 So. 2d 932, 933 (1995)). See also Sica v. Sam Caliendo Design, Inc., 623 So. 2d 859 (Fla. 4th DCA 1993); Moore v. Freeman, 396 So. 2d 276 (Fla. 3d DCA 1981) (trial court's granting of summary judgment was premature where the opposing party, through no fault of his own, had not completed discovery). Further, it is reversible error to grant summary judgment where depositions are still pending. See Sica.