A recent ruling by a Florida appeals court should serve as a reminder to self-represented, "pro se" homeowners defending against a home foreclosure that it isn't enough to merely go into court, and point out generally that there are defects with the lender's paperwork due to the involvement of three prolific, nationally-recognized robosigners in the execution of those documents and expect the court to give the case the boot.(1)
As in any case, all litigants have to adequately plead their case, raise and brief all the issues, and submit evidence to support the allegations that are in a form that is admissible in court (in compliance with the court's rules of procedure).
While it is true that a court is to hold pro se litigants to less stringent standards in construing their pleadings than formal pleadings drafted by lawyers,(2) they must still adequately raise and brief the issues, and acquaint themselves and follow the applicable rules of procedure.(3)
Failing that, no matter how hard they work familiarizing themselves with the stories of robosigning, document-manufacturing, forgeries, etc. that are floating around on the Internet, pro se homeowners like the one in this case (who, in fact, may have had strong defenses and counterclaims) will find themselves on the dead-end road of disappointment.(4)
For the ruling, see Harvey v. Deutsche Bank National Trust, No. 4D10-674 (Fla. App. 4th DCA, June 29, 2011).
(1) In this regard, the court noted, in footnote 2 of its ruling:
- As to this point, Harvey specifically argued that on April 16, 2009, an assignment of mortgage was executed by Korell Harp, vice president for MERS, as nominee for AHMAI, and Tywanna Thomas, assistant secretary for MERS. Harvey stated that on May 6, 2009, an assignment of mortgage in a different and unrelated foreclosure case was executed by Korell Harp; Harp was listed as vice president and assistant secretary for Argent Mortgage Company, LLC. Harvey further stated that in another unrelated foreclosure case, an assignment of mortgage was executed by Cheryl Thomas and Tywanna Thomas; Cheryl Thomas was listed to be vice president of Sand Canyon Corporation and Tywanna Thomas was listed as assistant vice president.
Harvey stated that in yet another unrelated foreclosure case, an assignment of mortgage was executed by Korell Harp and Tywanna Thomas. Harvey argued that the signatures of Harp and Tywanna Thomas "appear to be different when compared with the other assignments signed by Ms. Harp and Ms. Thomas," and "[b]ecause there was a dispute concerning either the facts of the controversy or the inferences to be drawn from those facts, a summary judgment was improper."
(2) See e.g. Estelle v. Gamble, 429 U.S. 97 (1976), which supports the mandate that trial judges cut pro se homeowners slack when bringing their cases:
- As the Court unanimously held in Haines v. Kerner, 404 U. S. 519 (1972), a pro se complaint, "however inartfully pleaded," must be held to "less stringent standards than formal pleadings drafted by lawyers" and can only be dismissed for failure to state a claim if it appears " `beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' " Id., at 520-521, quoting Conley v. Gibson, 355 U. S. 41, 45-46 (1957).
(3) See e.g.:
Pliler v. Ford, 542 U.S. 225 (2004):
- District judges have no obligation to act as counsel or paralegal to pro se litigants. In McKaskle v. Wiggins, 465 U. S. 168, 183-184 (1984), the Court stated that "[a] defendant does not have a constitutional right to receive personal instruction from the trial judge on courtroom procedure" and that "the Constitution [does not] require judges to take over chores for a pro se defendant that would normally be attended to by trained counsel as a matter of course."
Faretta v. California, 422 U. S. 806 (1975):
- The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law.
Rhodes v. Wathen, No. 10-10892 (5th Cir., March 2, 2011):
- Although pro se briefs are afforded liberal construction, Haines v. Kerner, 404 U.S. 519, 520 (1972), even pro se litigants must brief arguments in order to preserve them. Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
Timson v. Sampson, 518 F. 3d 870 (11th Cir., 2008):
- While we read briefs filed by pro se litigants liberally, Lorisme v. I.N.S., 129 F.3d 1441, 1444 n. 3 (11th Cir.1997), issues not briefed on appeal by a pro se litigant are deemed abandoned, Horsley v. Feldt, 304 F.3d 1125, 1131 n. 1 (11th Cir.2002). Moreover, we do not address arguments raised for the first time in a pro se litigant's reply brief. Lovett v. Ray, 327 F.3d 1181, 1183 (11th Cir.2003).
Childs v. Motor City Casino Hotel, Case No. 09-13108, No. 10-13458 (E.D. Mich., Southern Div. April 27, 2011):
- A pro se litigant's complaint is to be construed liberally, Erickson v. Pardus, 551 U.S. 89, 94 (2007), and is held to "less stringent standards" than a complaint drafted by counsel, Haines v. Kerner, 404 U.S. 519, 520 (1972). Nonetheless, "[t]he leniency granted to pro se [litigants] . . . is not boundless," Martin v. Overton, 391 F.3d 710, 714 (6th Cir. 2004), and such complaints still must plead facts sufficient to show a redressable legal wrong has been committed, Fed. R. Civ. P. 12(b); Dekoven v. Bell, 140 F. Supp. 2d 748, 755 (E.D. Mich. 2001).
Caidor v. Onondaga Cnty., 517 F.3d 601 (2d Cir. 2008):
- This Circuit makes certain allowances for pro se litigants. We recognize that the right to appear pro se "should not be impaired by harsh application of technical rules," and therefore we "make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal training." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983).
Nonetheless, "pro se litigants generally are required to inform themselves regarding procedural rules and to comply with them." Edwards v. INS, 59 F.3d 5, 8 (2d Cir.1995) (citation omitted);
Keeler v. Aramark, No. 10-3214 (10th Cir. April 7, 2011):
- [A]lthough courts afford a pro se litigant's filings some leniency, they have no obligation to advise such a litigant of the authentication requirement, for even pro se litigants are expected to "follow the same rules of procedure that govern other litigants." Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007) (quotation omitted).
Petty v. Krause, No. 1:10CV573 (M.D. N.C. April 27, 2011):
- Moreover, although the Supreme Court has reiterated the importance of affording pro se litigants the benefit of liberal construction, Erickson v. Pardus, 551 U.S. 89, 94 (2007), the United States Court of Appeals for the Fourth Circuit has "not read Erickson to undermine Twombly's requirement that a pleading contain more than labels and conclusions," Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th Cir. 2008) (internal quotation marks omitted) (applying Twombly standard in dismissing pro se complaint). Accord Atherton v. District of Columbia Off. of Mayor, 567 F.3d 672, 681-82 (D.C. Cir. 2009) ("A pro se complaint . . . `must be held to less stringent standards than formal pleadings drafted by lawyers.' But even a pro se complainant must plead `factual matter' that permits the court to infer `more than the mere possibility of misconduct.'" (quoting Erickson, 551 U.S. at 94, and Iqbal, 129 S. Ct. at 1950, respectively)), cert. denied, 130 S. Ct. 2064 (2010).
Lomax v. Capital Rental Agency, Inc., (11th Cir. May 23, 2011):
- "Pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed." Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).
Although we show leniency to pro se litigants, we will not serve as de facto counsel or "rewrite an otherwise deficient pleading in order to sustain an action." GJR Invs., Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998),
C.P. v. Shepherd, No. E2010-00726-COA-R3-CV (Tenn. App. March 24, 2011):
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- Pro se litigants should not be permitted to shift the burden of the litigation to the courts or to their adversaries. They are, however, entitled to at least the same liberality of construction of their pleadings that Tenn. R. Civ. P. 7, 8.05, and 8.06 provide to other litigants. Irvin v. City of Clarksville, 767 S.W.2d at 652.
Even though the courts cannot create claims or defenses for pro se litigants where none exist, Rampy v. ICI Acrylics, Inc., 898 S.W.2d 196, 198 (Tenn. Ct. App. 1994), they should give effect to the substance, rather than the form or terminology, of a pro se litigant's papers. Brown v. City of Manchester, 722 S.W.2d 394, 397 (Tenn. Ct. App. 1986); Usrey v. Lewis, 553 S.W.2d 612, 614 (Tenn. Ct. App. 1977).
(4) Homeowners expecting a court proceeding similar to those on "Judge Judy" (or other TV court shows) will be in for a big let down.
