Friday, December 28, 2012

Litigating Miami-Dade Foreclosures Becomes A Joke As Judges Begin Bulldozing Cases Through System, Steamrolling Homeowners In The Process

In Miami, Florida, The Miami Herald reports:

  • Miami-Dade Circuit Court — choked with foreclosure cases, many dating to 2009 — has gotten tough on pushing cases through the system.

    Five months into a state-funded project, Florida’s busiest circuit court is conducting hundreds of foreclosure trials a week.

    With $626,000 in special funds for the fiscal year ending July 31, 2013, the court has added two senior judge slots and a staff of case managers to help clear a backlog of some 53,668 foreclosure cases.

    “It’s a rocket docket,” said Miami-Dade Circuit Judge Jon Gordon, a senior judge who is churning through about 50 trials a day.
  • Most trials are short and simple. Judges can plow through a one-witness foreclosure case in 15 minutes if it isn’t contested, the judge said. Contested cases with two witnesses can take a couple of hours.

    Attorneys, especially defense attorneys, don’t like the court’s tough line.

    Bruce Jacobs, a Miami attorney who specializes in foreclosure defense work and hosts a weekly radio program called Mortgage Wars on WZAB-AM 880 in Miami, said the court’s efforts are well intended but can hamper the defense’s ability to challenge a bank’s evidence that it is entitled to foreclose.

    Jacobs said he has shown up in court objecting that lenders have refused to provide documents he requested to prepare a defense until the day of trial. “They haven’t provided me anything, and the judge sends me outside the courtroom to look at them and then it’s, ‘Let’s go to trial,’ ” he said, expressing frustration at being asked to speed-read important documents.

    Jacobs said under the law, it isn’t enough for a lender to show that a homeowner hasn’t paid a loan; the lender must prove it has the right to foreclose. That often can be dicey when mortgage loans have been packaged into securities and are being serviced by a third party and have been passed from one institution to another.

    “I’m all in favor of moving these cases forward, but they’ve got to hold both sides to the rules of procedure,” Jacobs said.

    Last Thursday, Sergio Cabanas, a Pembroke Pines attorney, was in court arguing to postpone a foreclosure trial set for that morning, because, among other things, his attorney had another hearing in Broward County the same morning.

    Gordon, the senior judge, denied Cabanas’ request. “You’re here today,” the judge said.

    Cabanas, who defends foreclosure cases, claimed it would be “almost like a Woody Allen skit,” for him to be both a witness and the attorney in the case, but the judge brushed aside his argument.

    In Miami-Dade, the court typically won’t consider requests for continuances made the day of trial, except in an emergency. Such requests must be filed at least seven business days ahead of time for review by a judge on the foreclosure team.

    Forced to go to trial, Cabanas acknowledged that he hadn’t made payments on the loan since early 2009, even as the bank laid out its documentation to foreclose.

    Asked if a signature on a document was his, Cabanas said it looked like it, but he had “no specific recollection” of signing it.

    Cabanas then raised one issue after another — to no avail. Among other things, he said he was trying to get a loan modification for the rental property, held in a trust.

    He questioned the bank representative’s qualifications to be a witness in the case. He challenged the bank’s right to foreclose at all, demanding proof the mortgage had been properly transferred when the original lender, World Savings, was acquired by Wachovia, which in turn was acquired by Wells Fargo.

    The judge overruled his objections.

    “I’m running out of time, and I’m running out of patience,” Gordon finally told Cabanas. Soon afterward, he ruled in favor of the bank. Cabanas later said he plans to file an appeal.

    “In my case, they’re overlooking certain burdens of proof and other evidence that would never be tolerated in other proceedings,” Cabanas said. “They’re under the gun, no matter what, come hell or high water, to push these cases off the cliff.’’
For the story, see Miami-Dade court puts foreclosures on fast track (Miami-Dade Circuit Court is aggressively setting foreclosure cases for trial as it tries to clear the backlog that ensued from the ‘robo-signing’ delays).

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