Tampa Judges – Expediency Over Accuracy?

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Tampa Judges – Expediency Over Accuracy?
http://www.stayinmyhome.com/blog/?p=1740
Posted on September 19, 2011 by Mark Stopa Esq.

Ever since the senior judge system ended in Hillsborough County, I’ve had one frustrating experience after another with the judges in Tampa. It’s gotten so bad recently that I’ve often wondered “do you care about accuracy, or just expediency?”

Today, for example, I received an Order from Judge Bergmann denying a Motion to Dismiss and Motion to Quash Service without notice and without hearing. Unfortunately, these types of Orders have become all too common in recent weeks, at least so far as Motions to Dismiss go. What particularly irked me about this one, though, was the judge’s ruling that:

Defendant’s Motion to Quash is denied. Defendant submitted himself to the jurisdiction of the Court by filing a Motion for Extension of Time, before filing the Motion to Quash.

In layman’s terms, the Court denied my client’s Motion to Quash Service, not because it lacked merit, but because the Court thought my client waived that argument by first filing a Motion for Extension of Time. This was hence a very narrow legal issue – does a Motion for Extension of Time waive a Motion to Quash Service?

Tellingly, the Court cited no case citations in its Order for the proposition that a Motion for Extension of Time is a waiver of a Motion to Quash Service. Of course, after about two minutes of research, I confirmed what I already knew – a defendant does not waive a Motion to Quash Service by first filing a Motion for Extension of Time. To illustrate, the Third District has ruled:

The single issue presented by this appeal is whether the filing by Barrios’ attorney of a Motion for Enlargement of Time constituted a general appearance and hence a waiver of Barrios defense of lack of personal jurisdiction and insufficiency of service of process. It does not.

Barrios v. Sunshine State Bank, 456 So. 2d 590 (Fla. 3d DCA 1984).

Unfortunately, the Court ruled against me on this issue without a hearing, without notice, and without asking or allowing the parties to provide case citations in written format before making a ruling. And as the Barrios case reflects, the Court was wrong in its ruling. As a result, I had no alternative but to draft this Motion for Rehearing
http://www.stayinmyhome.com/blog/wp-content/uploads/2011/09/Motion-for-Reconsideration-on-Order-Denying-Motion-to-Quash.pdf and this letter Judge Bergmann enclosing it. http://www.stayinmyhome.com/blog/wp-content/uploads/2011/09/Ltr-to-Judge-Bergmann-encl-Motion-for-Rehearing.pdf

I’m hopeful the Court will do the right thing here and change its ruling. However, even if it does, I have greater concerns.

Most significantly, while I totally disagree with the process of denying motions to dismiss without hearings, it’s clear to me that this procedure should be employed, at worst, only to those motions that judges see on a regular basis. In this case, this motion clearly wasn’t one of them.

In a situation like this, where the Court had before it a motion that is not boilerplate and contained a relatively novel issue (i.e. whether challenges to service of process are waived by a motion for extension of time), it is incumbent upon the Court to conduct a hearing and give both sides a chance to be heard. Otherwise, when the Court rules in the banks’ favor and its ruling is erroneous, as here, it creates the strong impression, rightly or wrongly, that the Court cares only about expediency, not accuracy. That impression, respectfully, is one which the Courts must strive to avoid.

I’m not perfect, and I don’t expect the Courts to be, either. However, I do expect that the Courts won’t have the attitude of “this is just another foreclosure case; I’m ruling against the defendant.” I’m not saying that’s what happened here, but the dynamics create a reasonable fear among my clients that it could be.

Finally, bear this in mind – if this is what’s happening in my cases, where I’m fighting for homeowners, how do you think those without an attorney will fare?

Mark Stopa

http://www.stayinmyhome.com

15 Responses

  1. so what happen to this judge?

  2. Old Bergey should be out “fishing” instead of Judging People. Ol’Bergy is one of the most incompetent Judges on the Bench in tampa along with BARTON. One of the WORST, most corrupt Court systems in AMERICA.

    Its like a Frat House down there. Maybe if Stopa had sent a Hooker to Ol bergy a few days in advance??? Maybe a different outcome?

  3. Carie you are right, so let’s go forward and stop this disaster caused by Wall Street See :http://livinglies.wordpress.com/2011/09/23/tampa-judges-%e2%80%93-expediency-over-accuracy#comment-92483

  4. Yes—commenter “boots” did that—just treated it as unsecured debt in his bankruptcy…which it is, because original creditor is gone—and “debt” is trying to be collected by third party debt collector…who cannot prove conveyance of your payments to an actual “mortgage loan”.

  5. Carie…It is very simple chapter 13 and chapter 7, unsecure loans will be discharge in the Bankruptcy Court.{.o ) balance

  6. Ray
    I’m curious—what will you “do next”—as you say—if it “doesn’t work”?

  7. Carie I have requested motion to compel discovery in regard to the bank disclosure of Title, Security, and real party in interest to my property.

  8. Ray—what discovery did you ask for?

  9. I think the issue you bring up is a valid one, but does not apply in all State courts in country and Florida may be the exception to the rule. I would also advise those Pro Pers’ out there not to write letters to the judge telling him he is wrong when he is probably going to be hearing your case.

    I also did not see a notice of the date for the motion to quash hearing. It is my understanding that unless you specifically request and send notice of a motion hearing date, then the Judge is under no obligation to provide you one and usually they don’t.

    According to this case from the 3rd as well, there are no longer general or special appearances in Federal Court and basically if you file a motion to dismiss or quash, you either gain Jurisdiction of the ruling against you or they never had jurisdiction to begin with. Unfortunately, the court does now have jurisdiction and your choices could be to appeal the denial of your dismissal or prepare trial.

    Orange Theatre Corp. v. Rayherstz Amusement Corp., 139 F.2d 871 (3rd Cir., 1944)

    We think that the Rules of Civil Procedure call for the use of similar restraint on the part of the federal courts in the exercise of their power over a defendant who has voluntarily appeared to defend an action against him but who desires also to raise a jurisdictional defense. Under Civil Procedure Rule 12 such a defendant is expressly given the right, at his option, to assert by motion before answer or in his answer itself a jurisdictional defense such as that of lack of jurisdiction over his person. The rule states that “No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion.” If he chooses to assert the defense in his answer, rather than by motion, he must include with it all other defenses of every kind, meritorious as well as jurisdictional, which are available to him. It has long been recognized, however, that the filing of an answer to the merits involves an appearance in the action for all purposes. Wetzel & T. R. Co. v. Tennis Bros. Co., 4 Cir., 1906, 145 F. 458, 7 Ann.Cas. 426; Dickey v. Turner, 6 Cir. 1931, 49 F.2d 998. It will thus be seen that Rule 12 permits a defendant to raise a jurisdictional defense even though his voluntary appearance has already called into existence the potential power of the court to adjudicate the merits of his controversy. The rule requires the court to decide without reference to the voluntary appearance the question of jurisdiction thus raised and, if the question is decided in the defendant’s favor, to refrain from further exercising over him the power which his appearance has given it.

    It necessarily follows that Rule 12 has abolished for the federal courts the age-old distinction between general and special appearances. A defendant need no longer appear specially to attack the court’s jurisdiction over him. He is no longer required at the door of the federal courthouse to intone that ancient abracadabra of the law, de bene esse, in order by its magic power to enable himself to remain outside even while he steps within. He may now enter openly in full confidence that he will not thereby be giving up any keys to the courthouse door which he possessed before he came in. This, of course, is not to say that such keys must not be used promptly. If the defense of lack of jurisdiction of the person is not raised by motion before answer or in the answer itself it is by the express terms of paragraph (h) of Civil Procedure Rule 12 to be treated as waived, not because of the defendant’s voluntary appearance but because of his failure to assert the defense within the time prescribed by the rules. We conclude that within the time allowed for serving the answer the defendant may assert this defense unless he has waived it by some action other than his voluntary appearance. In so holding we are in accord with the decisions of other courts which have considered the question. Blank v. Bitker, 7 Cir. 1943, 135 F.2d 962; Kaufman v. United States, D.C.Dist.Col., 1940, 35 F. Supp. 900. Compare Phillips v. Baker, 9 Cir. 1941, 121 F.2d 752.

  10. I don’t see this as criticism, as he is pointing out only that the order is erroneous according to precedent. however, despite good his intentions and empathy, to us pro se’s, he best fight this battle underground and guard himself and not opine so, else the attack beetles will be sent, and he will find himself no longer able to fight for anyone when they find some little thing to disbar him over. Create case law Mark, become an appellate fighter.

  11. I can tell you that no matter if you are represented by an Attorney or Pro-Per litigant the courts are going to dismiss your case, I am litigating my own defense from 2007, first the Supreme Court State of New York Queens County, then the court of Appeal Second Judicial department, third the Court of Appeal in Albany New York, fourth the USA Federal District Court Brooklyn NY, every one of them dismissed my case and did not care about the evidence or my motion to compel discovery, i decided to hired an Attorney because I filed an Appeal which is now pending in the USA Supreme Court for of Appeals Second Circuit, and I am Hoping this court may hear my allegations, If this does not work, I know exactly what to do next.

  12. interesting. didn’t they do away with the foreclosure courts down there? maybe this is the result of no more FC courts – have to move through the other courts fast to maintain

    on another note, i’d be interested to know if Mark has faced any retaliation from the judges or the bar for publicly disseminating this. there are fairly uniform rules about practicing attorneys publicly criticizing judges.

  13. Mark, Neil et al

    Will someone please keep a log of the misdeeds of Florida’s robo-judges?

    When, not if, there will be a Nuremberg type trial for crimes against the economy, it will come in handy: Robo-judges can’t say that they didn’t know!!!

  14. Good post by a lawyer who left the most important fact for last: when the judges deprive represented parties of due process (without a hearing on defective premises) they do it routinely to the pro se proving once again that the problem today is judges who are bought and paid for by big business and their big law firm mouthpieces.

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