By Samantha Joseph
Fort Lauderdale attorney Evan M. Rosen is criticizing a state appellate court — via news release — in a move that seems to flirt with breaking Florida Bar rules against impugning the integrity of judges.
Frustrated over the adjudication of foreclosure cases, Rosen issued a news release Thursday asking, “What’s wrong with Florida’s Third District Court of Appeal?”
“Sometimes things just need to be said,” Rosen told the Daily Business Review. “This is a story that needs to be told.”
Rosen, a Florida attorney since 1997, issued a 15-page document complete with a statistical analysis of foreclosure opinions from Florida’s five district courts of appeal. It shows Miami’s Third DCA outpaces its counterparts in ruling against homeowners sued by their lenders.
He said he’s spent years compiling appellate rulings from across Florida to create a database of foreclosure-related dispositions from 2010 through Thursday.
“Statistics reveal what experienced Florida foreclosure attorneys already know,” Rosen wrote. “The Third District Court of Appeal has an issue properly adjudicating foreclosure cases.”
Defense attorneys for homeowners have long whispered about what they see as bias among Third DCA jurists against homeowners in foreclosure, but Rosen is the first to call public attention to the Miami court as an outlier in foreclosure appeals.
Ethics lawyers cited concerns about potential repercussions in appearances before the court in declining to speak on the record about Rosen’s criticisms.
“He’s onto something,” said an attorney who requested anonymity because of pending cases before the Third DCA. “There is no question that the Third District is pro-business and couldn’t care less about homeowners. The problem is yes, you have ethics rules, but you also have First Amendment rights. This area of the law is the grayest. Lawyers want to make a living and not anger the judiciary. Most lawyers hold their tongue … so it’s a lot of self-regulation.”
Last year, Davie attorney Michael Wrubel performed a numeric tally that bolstered criticism by defense lawyers, who claimed the court abuses per curiam affirmances, or PCAs, to avoid explaining their rulings on lender standing. He found the appellate court, which hears appeals from Miami-Dade and Monroe counties, issued PCAs in about 81 percent of the foreclosure cases heard in 2015.
PCAs affirm trial court orders when the legal issues are so well-settled that a fresh discussion would be fruitless. But some attorneys say the Third DCA misuses the tool to strategically sidestep writing opinions that could provide grounds for rehearing. Instead, they say it uses the decisions to wipe out options for further review and avoid conflicts with other district courts.
Rosen said his data compelled him to speak. He said his chart tabulates every Florida appellate opinion since 2010 when the first wave of appeals from the housing collapse hit court dockets. Most cases focuses on legal standing — centered on questions about a lender’s entitlement to bring suit — over the course of the foreclosure crisis.
He found that of 120 opinions addressing lender standing before the Fourth DCA, the only other South Florida court that ruled for homeowners 73 percent of the time. On the same issue, the Second DCA found for homeowners 84 percent of the time, the First DCA 83 percent and the Fifth DCA 72 percent.
The Third DCA ruled for homeowners twice, or only 13 percent of its foreclosure cases involving legal standing, according to Rosen’s count.
Some lawyers question the reliance on data to challenge the appellate court’s rulings.
“The truth is an absolute defense. This is still the United States of America. Freedom of speech is still sacrosanct,” he said. “Who better to know what is going on with the courts than the lawyers that appear before them regularly? I’m convinced there’s something that’s different there than every place else, which leads to these results. And something needed to be said.”
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Excellent article. I look forward to reviewing Mr. Rosen’s and Mr. Wrubel’s data.
I got an unexpected PCA from the 5DCA right after Labor Day weekend. Eisnaugle was the new judge and assigned to my case. Prior to him, the judges were generally unbiased.
I think it was hard to rule against me because the servicer’s (BSI) name was not on the note nor on any transfer document, their attorney KS was filing boiler plate responses unrelated to my case, and I cited Geweye etc. as cases precedent.
I’m selling the house now and want to spread the word about these judges.
An old legal anecdote—attributed to such legal notables as Mae West and the Earl of Birkenhead—depicts a frustrated judge asking an obstreperous lawyer, “Are you displaying contempt of court?”
“No, your honor,” the advocate responds. “I am trying to conceal it.”
I think Graucho Marx delivered that line….
Judges acting to protect their own retirement accounts managed by the Wells Fargo racketeering enterprise also use a tool called “default summary judgment”. Regardless of the arguments made or the fact that the homeowner (in propria persona or by counsel) vehemently contested the action, the bench enters their ruling as default judgment, thereby exonerating themselves from deciding any of the merits raised by the homeowner.
I can’t get over the fact that this is happening in the United States. Just get a copy of a note from a defunct “lender” from a bond deal that extinguished via trigger event, paid off by swaps and insurance, without any chain of title whatsoever, and prevail in a court of law with forgeries and lies.
The Deep State is much deeper than you think.
“in a move that seems to flirt with breaking Florida Bar rules against impugning the integrity of judges.”
Speaking the truth isn’t “impugning” ,, it is merely shining light on WHAT IS…
How do “we the people” act to force the FL Supremes (or whoever controls these judges) to take action… we are immune from bar rules as we aren’t part of that corrupt organization.
Kudos to Mr Rosen for speaking the truth! I’m a lay person who listens to Oral Argument every chance I can. I don’t even bother to look at the 3rd DCA’s Oral Argument calendar….always the same old “rinse & spin”.
Reblogged this on Deadly Clear and commented:
Stop dancing. Pull the judges’ financial disclosure statements. Then cross search EVERY mutual fund and investment with “MBS”, “Fannie” and then GSE. Either they’re conflicted or total idiots…so then push to get them off of payroll.
Follow the money. Check their disclosures.