Setting a Foreclosure Case for Trial


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Setting a Foreclosure Case for Trial

by Mark Stopa

Did you know the banks and their lawyers don’t want to have to go to trial in foreclosure cases? It’s not exactly breaking news, I realize. (Recall, for instance, this post, where I showed that just 198 trials took place in the entire state of Florida in a recent, one-year period.) In fact, those of us in the industry have known this for some time, i.e. banks want to win by default and/or summary judgment, not by trial in contested cases against lawyers who are asserting valid objections each step of the way.

Given the volume of foreclosure cases in Florida, the increasing number of homeowners defending those cases, and the banks’ aversion to trial, our court system is inundated with foreclosure cases. Personally, I don’t think this is a problem – if the banks don’t want to prosecute their cases, that’s their prerogative. However, in an attempt to push through the logjam, I’ve seen some judges take measures which, in any other time, would be considered quite unusual. One local judge, for instance, has stated setting cases for trial sua sponte, one after another, regardless of how the parties feel about it. This begs the question – what is the appropriate way to set a case for trial?

I’ve blogged about this issue for some time now, including here and here, so at this point we should all know the basics of setting a case for trial, as set forth in Fla.R.Civ.P. 1.440. First, a case can’t be set for trial unless it is “at issue,” meaning the defendant has filed an Answer to the operative Complaint and no there are no pending motions directed to the pleadings. Second, when the court sets a case for trial, it must provide at least 30 days notice; anything less is insufficient. The two cases which I love to cite for these propositions are Bennett v. Continental Chemicals, Inc., 492 So. 2d 724 (Fla. 1st DCA 1986) (en banc) and Precision Constructors, Inc. v. Valtec Constr. Corp., 825 So. 2d 1062 (Fla. 3d DCA 2002). Notably, in both cases, the Florida appellate court reversed a final judgment not because there was any substantive error at trial, but because the trial had been set prematurely, in violation of Rule 1.440. That’s how big of a deal this is – it doesn’t matter if the trial was done correctly if it was set prematurely.

I’m confident the local judge who has started setting cases for trial en masse, sua sponte, is aware of these requirements. In fact, I sincerely believe she tries to follow the law, and she has refrained from setting cases for trial that are not “at issue,” which is obviously a good thing. The question that has arisen from her rulings, in my view, is whether a judge can set a case for trial on his/her own, sua sponte, when the case has not been noticed for trial.

By way of example, and to illustrate the situation at hand, I recently had a hearing before this judge on a Motion to Substitute Party Plaintiff. The issue of trial was not set for hearing, and no party had filed a Notice for Trial, so I wasn’t even thinking about a trial at this hearing. Heck, the plaintiff’s lawyers were trying to change the identity of the plaintiff, so getting proper pleadings in place, and taking discovery regarding the new plaintiff, was paramount in my mind, not trial. Anyway, at the hearing, immediately after she allowed the new plaintiff to join the case, the judge decided to set the case for trial with, quite frankly, limited input from the parties. I objected, but it was clear to me that the court was following a procedure where foreclosure cases were being set for trial.

Respectfully, I’m troubled at this sequence of events.

Any time I go into a hearing, I expect that the only matter(s) being argued are those which have been noticed for hearing. This is fairly basic, so a Court bringing up a matter like this, sua sponte, is the last thing I’d expect at a hearing on a simple motion. I could perhaps understand this better if the plaintiff had filed a Notice for Trial. But for a court to set a case for trial, totally on its own, where the case was not even noticed for trial and the issue of trial wasn’t set for hearing … I just don’t see that. In my case, for example, I think I should get to amend my pleadings and take discovery about this new plaintiff before a trial is set.

I believe the case law supports my view that a “Notice for Trial” must be filed before a judge can set a case for trial. Rule 1.440 has three subsections, and each one is a step in a three-step process. Once a case is “at issue” (subsection (a)), then it may be noticed for trial (subsection (b)), and then the court may set it for trial (subsection (c)). As I read the cases which cite Rule 1.440, I believe they all support this interpretation. See Genuine Parts Co. v. Parsons, 917 So. 2d 419 (Fla. 4th DCA 2006) (reversing final judgment where the court set the case for trial without a notice for trial having been filed); Garcia v. Lincare, Inc., 906 So. 2d 1268 (Fla. 5th DCA 2005) (“Procedural readiness for trial differs from actual readiness for trial. It is the former, coupled with a properly filed ‘Notice for Trial,’ that imposes on the court the obligation to set a trial date.”); Hartford Fire Ins. Co. v. Controltec, Inc., 561 So. 2d 1334 (Fla. 5th DCA 1990) (“The rule requires the filing of a notice of trial for review by the court in order to determine whether the cause is ready for trial”); Balboa Ins. Co. v. Shores of Madeira, Inc., 457 So. 2d 596 (Fla. 2d DCA 1984) (“Once a proper notice of trial has been filed, the duty is on the court to set the cause for trial.”).

This may sound like procedural mumbo jumbo, and I suppose to some extent it is. That said, when trial is set, the substantive rights of the parties are being adjudicated (or about to be adjudicated), so it’s important to follow the procedure correctly. As the en banc First District explained in Bennett, “strict compliance with Rule 1.440 is mandatory.” Using my example above, if a Notice for Trial had been filed, I would have had a chance to object on the basis that trial was premature because the plaintiff had just changed. At minimum, even if it was time to set the case for trial, I could have begun preparing the file accordingly (by completing discovery or amending pleadings as necessary). In my view, all litigants are entitled to this right, and to sua sponte deprive them of that right is contrary to law.

Reasonable minds can disagree, and this is certainly not the worst thing I’ve seen in foreclosure court. That said, I’d love to see legal authority that allows a judge to set a case for trial, sua sponte, when a Notice for Trial has not been filed. In light of the cases I’ve cited above, I just don’t think it’s possible.
Mark Stopa Esq.


8 Responses

  1. Unfortunately I live in MA and had a Judge who was unethical and made an improper judgment which was not based on the facts of law. The bank had the burden of proof to prove they had a legal right to take actions and in our case they could not even prove that the contract came to fruition at infancy UCC 3- 305. This is just one of hundreds of illegal acts that took place and the judge allowed it. We did not have a home that was worth less than what we paid we had tons of equity and were not in arrears and our home was illegally sold. We proved that we were not in arrears and therefor they could not send us a notice of default. The bank also did not send a notice of their intent to foreclose nor was the illegal sale ever published in the newspaper. I can go on and on. ANY SUGGESTIONS OF WHAT WE CAN DO NOW?

  2. @ Ann

    How does one get the Nevada Ag’s document?

  3. Judges set trial sua sponte, okay, but I wish to hell I had seen this post a few years ago. Not because the post provides an answer, which it doesn’t purport to do, but because it asks a question I didn’t know to pursue. I”m still incredulous one way or another that
    Stopa’s court could and did set trial just as it granted the party- substitution. To me, that qualifies for a what the oh you know. I just don’t get that at all. It’s shocking, at least to me.
    I don’t know the answer to the question posed: is the court setting trial sua sponte proper? But they do it and it’s detrimental or could be, so need an answer imo. It’s an ambush. I know that in a trial statement, one must (at least I’ve seen it) list any outstanding dispositive motions, so that sort of indicates trial may be set with them pending, but for all I know the judge I’ve seen do it is related to Stopa’s. Maybe it’s a ‘judge preservation’ (which I’ve seen but not as to this matter) found in local rules, but btw, from my old research, when those conflict with federal rules, the local rules lose. Or are supposed to. It’s beyond me if Stopa could’ve objected to a sua sponte order. It seems like if he could have, he would have.

    Since my 16-hour-days of legal research are hopefully behind me, if he or anyone finds cases supporting yeah or nay, I hope LL hears about it.
    I had a case around here which says “there is no trial without discovery” but I can NOT find it. The dog must’ve eaten it.

  4. what a strange post detailing a procedural rule applicable only to one state at best and only part of that state at worst case.

  5. @ Ann

    Oh you and I would make such a pair. My story differs in the details and my fight and I’m up against BoA, however, I almost laughed my butt right off my stool because your demeanor with regards to your fight reminds me so much of me. I worry about the same “blathering” issue and how I must keep myself in check in the courtroom and follow all the nice little rules of civil procedure when I would love nothing more than to walk over to all of them and slap the smirks right off their silly faces. I loved the “Notice of Non-Reliance”; what a hoot. I loved how you handled it. What happened when you filed one? Keep on keeping on! The more we all keep at them up close and personal the more they may get the point we won’t lay down as the run the bulldozers over us!

  6. We’re Gonna Have a Foreclosure Trial, Simple Thing…..Right?
    February 4th, 2012 | Author: Matthew D. Weidner, Esq.

    So here’s the thing. A foreclosure trial should be a simple matter. An easy case for a big shot foreclosure firm….right? Let’s take a hypothetical example. The Plaintiff (or some version of the Plaintiff…we’ll get to that later) filed the Original Note years ago. They’ve got an Original, wet ink note that was taken out with American Broker’s Conduit in 2007. The note file with the court in 2009 is endorsed in blank so any old person can come in court, file the lawsuit and throw my client out into the street…..right?

    Well, hold on there Nellie. Slow down a bit. Let me take you for a little trip down the rabbit hole. First a little date to keep in mind. American Home Mortgage filed for bankruptcy in August 2007, just a few days after my loan was closed. According to pleadings filed in court, shortly after the filing 6,500 people were fired all across the country. So a first question I have is just how did my little ole loan get endorsed by some employee of AHMSI in the few short days between when it closed and when AHMSI filed bankruptcy? (More on that later too.) You know how things are when the ship is sinking….I’d imagine everyone knew the ship was going down so were all these folks really Johnnie on the Spot and really dotting their i’s and crossing their t’s? I mean while the building was on fire and everyone was running up and down the hallway screaming, was my particular girl sitting there calmly endorsing away millions of dollars in promissory notes?(Stamp, sign; Stamp, sign; Stamp, sign) I just don’t picture that and, as I’ll get to later, this probably was not happening.

    AHMSI and CA case details – GOOD ref-2


    American Home Mortgage bankruptcy questions and court filing


    Next, I started carefully examining all these bankruptcy filings and litigation cases related to the AHMSI bankruptcy and it seems there’s real questions about whether and when and what parts of loans of these bankrupt companies actually were transferred out. You see the loans were like pigs that were sent off to slaughterhouses. Pieces and parts were chopped up and sent off to different places…the loans themselves were sold off to one group of investors (who knows if they were double sold?), then the rights to service or collect the payments on the loans were either retained by related entities, or those rights were sold off to other companies. In subsequent lawsuits filed in federal bankruptcy court all sort of allegations are made about the improper transfer of these parts of the pig.

    Another key part of this case comes in the name of the Plaintiff that sued my client to foreclose, American Home Mortgage Servicing. Well, when they first filed the suit in 2009, I didn’t like the way the name was all loose and not pled in a proper legal fashion, so I demanded they give me the details that our pleading rules require….tell me what state of incorporation, tell me you’re in good standing, tell me there are no other competing entities….and well, here we are three years later and it seems like those questions I raised right at the beginning were well founded and justified. You see, as the litigation shows, there were in fact two versions of AHMSI, pre-bankruptcy and the fire-sale rising from the ashes, post bankruptcy. I challenged capacity and it seems that challenge was well-taken at the time….but that was never disclosed to me or the court in my case. (More on that later)

    Me being a curious type, I sent detailed, painstaking discovery pointed at AHMSI asking all kinds of questions, the who, what, when, where and hows of every aspect of this loan and the litigation…and guess what responses I got? NOTHING. Not a single question answered. And how did they pull this trick off? Well, they went behind my back and told the court in an ex-parte motion that the loan had sold and that AHMSI now had nothing to do with this loan. I objected but the court denied my objection, letting AHMSI slither away not answering a single damn question. For two years now, I’ve kept pointing back to the fact that I was denied those questions, filing motions to compel, trying to take depositions, but the new plaintiff’s attorneys (same as the old plaintiff’s attorneys) scream that the old plaintiff isn’t their client and they cannot be made to answer any questions. They maintained this position until right up at the eve of trial when they told the court they were going to call their former client as a witness in order to answer questions and get in information they need in order to prove their case.

    Well, along comes another interesting thing about this case. You see, the Plaintiff’s attorney files a “Notice of Non-Reliance on Assignment”. You see, AHMSI had apparently contracted with a company LPS or DOCS, LLC to generate the documents it needs to foreclose. Now AHMSI and LPS Docs are in a good old fashioned legal war, AHMSI is suing LPS accusing its old friend of doing shady things as part of its document creation operation. Nothing like a little fratricide to spice my case up a little bit. Now, I’m not sure what a “Notice of Non-Reliance” is…I checked the rule books and there’s no mention of such a motion in all of legal history, but I wanted to make sure I wasn’t missing out on something new and exciting so I filed a “Notice of Reliance on Assignment”. You see, I wanted to bring to the court’s attention the fact that the Plaintiff had produced a document , filed it with the court and were now trying to run away from it like a frat boy runs away from a girl with….well, you fill in the blank.


    Well, the “Notice of Non-Reliance” brings us to another interesting point in this little saga called, “The Importance of Being Earnest”. You see, the Florida Bar issued an ethics opinion which dealt with exactly the kind of situation presented here. How do I know this is the situation. Well, I just received documents that were sealed as part of the Nevada Attorney General’s Lawsuit against Lender Processing Service. In this lawsuit is a document that explains exactly how LPS employees are supposed to forge the signatures of other employees, but they don’t call it forgery, they call it “Surrogate Signing”. The explain it in great detail…really, you just gotta read it here, complete with a picture perfect example of Linda Greene’s signature that everyone is supposed to copy. It’s just mind blowing that they would make all this so clear and write it down as policy….apparently no one considered that this was called forgery and that if the signature was notarized it was notary fraud. You see, I in fact have a Linda Greene signature in my case. Now, as I read the Bar ethics opinion along with the just-released Nevada lawsuit, I believe my opposing counsel has an obligation to bring this directly to the court for consideration….after which I believe the court would have no choice but to dismiss the case and potentially sanction those parties involved. But that hasn’t happened yet. I’ve asked my friend, the attorney on the other side just when she might make this meeting, but all my pestering emails just get ignored.

    Which brings us back to another interesting subject, the promissory note at issue in this case. I have well founded reason to believe the note at issue in this case was not in fact endorsed by the person whose name appears on the face of the document. How? Well, remember the whole picture of the building burning and people running around on fire because 6,500 people are about to get fired in the days just after my loan closed? That’s certainly part of it, but there’s more. Much, much more. The other side knows it and I know it, but they are stuck in some kind of a dangerously delusional world where they think the judge ain’t gonna care about the pleadings I have filed. Maybe they’re right, maybe the judge will just ignore all of this.

    Now, here’s the thing. I can’t just stand up in court and blather on like I can here and make this case. In court, I can’t just stand up and start making all these wild, accusatory statements and expect the judge to take them into consideration. Even if the judge wanted to , our rules of procedure require me to go through a painstaking process to make sure the evidence is properly presented and before the court. And so while it’s just taken me bit over an hour to tell parts of this story here, preparing then presenting this story in court will take many, many, many hours. Collecting the evidence, organizing the evidence, then getting it into a form for the court to consider over the screaming objections of my opponents. This truly sets up as a battle royale. Will justice prevail? You just never know
    until the very last minute.

    NOTE : See the full case pleadings at


    In this fourth amended complaint, I make note that the previous judge assigned to the case, set the case for trial, and when I objected the “objections I made” are conspicuously missing from the transcript.

    My case is set for trial and First American Title company has not answered the complaint, and the convicted loan=fraud criminal, that is awaiting sentancing on EIGHTY loan frauds, cannot be found by me.

    My right to due process is being denied!

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