STOP BLAMING JUDGES: Their position is wrong but NOT unreasonable

Anyone with enough money to do it can establish a false national narrative that is universally believed. It is done through false advertising and the heavy implementation of false labels that eventually are assumed by everyone to be true. The success of the venture depends on the ability to addict the players to the money flow, while the founders of the scheme stay in the background. Everyone else is disposable. When the financial reward is high enough, most people are willing to suspend any skepticism they have about a scheme and are willing to participate in it with maximum time, effort and money.

I have often been confronted with a situation in which there are reports of a judge that is bullying the lawyers or litigants. The result is that homeowners are blaming judges for entering rulings or judgments and cutting arguments short. And the perception is that the judges are part of some vast conspiracy to deny due process to homeowners.

There are very few judges on the bench in any state or federal court that hold malice in their heart toward homeowners or who have some personal interest in making sure that the homeowner loses their Homestead. That statement by me continually gets me into trouble with those who embrace conspiratorial thinking. I don’t blame them for their thinking. But I do think that adopting that perception and acting on it is probably the surest way for a homeowner to lose their homestead.

I think you are only half right. It’s definitely true that judges will bully the attorneys and litigants. And sometimes when a judge asserts his or her authority, it can appear like bullying if you don’t like the result. And you’re probably right that they know that most of the time they can do what they want without any accountability or consequences.

But it is also true that very few judges proceed with malice. Yes they are biased because they are human beings, but most judges are trying to get it right. The fact that they get it wrong so many times in foreclosure cases is a product of a combination of bias of the individual and bias of the system.

It is nearly universally assumed that these transactions are loans which means that there is a creditor and a debtor and the homeowner is the debtor. This leads to the nearly universal assumption that the promissory note is the principal source of evidence on the terms of the debt.

Because of the unique advantages given to holders of promissory notes, a judgment for monetary damages can be awarded to the holder, even if the holder has no economic damages. But because of a nearly universal erroneous perception, this has oddly led to the adoption of court precedent that disregards the essential protections and requirements for enforcement of any security instrument.

The bottom line is that all of this leads to the very natural and organic assumption is that the only issue in foreclosure is whether or not the homeowner has made a scheduled payment. There is no inquiry in the mind of most judges as to whether or not the payment was actually due. So judgments are entered against the homeowner in favor of a party who has no economic damages despite the statutory requirement and the constitutional requirement for real economic damages in order to be able to file any civil suit other than seeking judgment on a promissory note as a holder.
In this context, it is only human nature for the judge to become impatient with litigants or lawyers who are raising technical points that, in the mind of the judge, do not change the outcome. Judges are trained and instructed to move their docket along once they believe that they understand the trajectory of the case.

So you get judges that are impatient because of their own ignorance of the realities of transactions that are falsely labeled as having been securitized. Since they are not investment bankers, and since most litigants and lawyers do not even address the issue of whether the securitization process actually eliminated the loan account, they can scarcely be blamed for arriving at the conclusion that the origination of the transaction was valid and enforceable.

The real problem is that there is a national narrative that is believed by nearly everyone including the homeowners who also bitterly complain about the foreclosure process. Even they think they have a debt that they were required to pay but somehow think that they are excused from paying it. In that context, it is easy to see how judges have not been confronted with the issue of whether or not the debt is due.
Neither lawyers nor most homeowners have any experience in investment banking. Therefore they have no way of knowing how securitization works. Most homeowners and lawyers feel either guilty or foolish for even considering the notion that securitization removes the loan account receivable from the equation. Don’t blame the judges for not considering that idea when nobody brought it up.
In the final analysis, most cases that are decided in favor of homeowners are decided on the basis of insufficiency of evidence against the homeowner.
Virtually none of those cases include a ruling or finding of fact or conclusion of law stating that the debt does not exist. This contributes to the national narrative and reinforces the erroneous belief that investment banks are seeking to recover on an unpaid loan. And because of confusion, as pointed out in my earlier article that republished the Florida Bar Journal article by Thomas Ice, the fact that the named plaintive may not even exist or has not paid value for the underlying obligation is not disturbing to the judges — but it is also not disturbing to most lawyers.
Anyone with enough money to do it can establish a false national narrative that is believed. It is done through false advertising and the heavy implementation of false labels that eventually are assumed to be true. The success of the venture depends on the ability to addict the players to the money flow, while the founders of the scheme stay in the background. Everyone else is disposable. When the reward is high enough, most people are willing to suspend any skepticism they have about a scheme and are willing to participate in it with maximum time, effort and money.

Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.
Please Donate to Support Neil Garfield’s Efforts to Stop Foreclosure Fraud.



Neil F Garfield, MBA, JD, 74, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.

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5 Responses

  1. Absolutely correct Hammer. But I would change to 100% correct. You are correct. Thank you.

  2. Thanks Anon but prob only about 90% correct lol

    Seems we are more along false narrative where settlements are used by banksters to influence officials and courts to presume they paid for the crimes which was not the case esp in CA NMS agreement.

    Plus the govt didn’t fully collect on fines and penalties.

  3. Hammertime — as always you are correct — quote – “willful ignorance at least by judges and lawyers.” There is one thing that most often wins in courts — precedent law. But judges do NOT go against their peers. RARE. Precedent law is pitiful. And, attorneys, rightfully, won’t take cases when case law is pitiful. Why is case law pitiful? Because the government SETTLED with the perpetrators without investigation. Thus, courts simply speculate that documents are accurate. They are not. The whole scheme was fraudulent. Why did the government settle? Because they thought the financial market, as a whole, was in great jeopardy. What did the settlements accomplish for the real homeowner victims? NOTHING.

  4. @Summer – thank you for the post.

    Of you browse the cfpb complaints you can see the range of judge/court blaming and conspiratorial thinking. But at this point it has to be willful ignorance at least by judges and lawyers. We’ve gone from a broken financial system to a broken judicial system and our democracy on the brink. If common sense and fairness are not applied by the courts and our elected officials these days will seem like a picnic.

  5. Since Neil twice posted on Judges in less than a week, it looks like judges are in a very hot water for illegally foreclosing over 20 million people ….

    Judges destroyed nearly all property Titles, enabled biggest robbery ever existed; transferred wealth from millions defrauded families to a handful of Wall Street Banks via fake non-existing plaintiffs; caused thousands of suicides; millions people suffer health problems due to judicial abuses ; investors lost trillions due to judicial support of Wall Street Ponzi scheme; destroyed public confidence in judiciary (google it)

    How they are going to fix it? If they going to fix it at all.

    Here is that Mark Stopa wrote in 2013 (disbarred and declared “mentally challenged” which is one of communists’ methods to shun the opposition – declare them mentally incapable )

    “I’m a big believer in the justice system. In fact, that’s part of why I became a lawyer. I believe in every litigant’s right to obtain a fair hearing and trial before a neutral judge and/or impartial jury. It sounds cliché, but that’s what I do – help people navigate the judicial system in their time of need.

    In recent months, though, the judiciary in many parts of Florida (not all, but many) has turned into something I don’t recognize. The change has been so sudden and so extreme that it’s altering the face of the judiciary and hindering that which I hold so dear – the right to fair hearings and due process. Yes, what I consider the “core” of a fully-functioning judicial system is eroding.

    If you’re a Florida lawyer but you don’t handle foreclosure cases, you likely have no idea what I’m talking about. After all, outside of foreclosure-world, Florida’s courts are operating like normal, business as usual. Sure, the down economy has brought some minor changes, but all in all, our courts are functioning in a normal way.

    Foreclosure cases, though, are a totally different animal.

    I was chatting with a colleague the other day, an attorney who doesn’t handle foreclosure lawsuits, and he was shocked as I described the things I see in foreclosure court on a daily basis. This is a seasoned attorney who was SHOCKED at what I see every day. That made me realize … I’m not doing a good enough job of explaining the travesties I see every day in foreclosure-world.

    It’s a tough line to toe, frankly. Bar rules prohibit me from disparaging any particular judge, so it’s sometimes difficult to explain what’s happening in foreclosure court without crossing that line. In this blog, though, I’m going to toe that line. Don’t misunderstand – I’m not criticizing anyone in particular. Rather, my critique – and that’s what I see this as, a constructive critique, coupled with a hope that everyone will realize just how flawed our system has become – is aimed at the entire institution. My concerns aren’t with any particular judge or any one ruling – they lie with the entire judicial system, the way the entire judiciary is operating right now, at least as it pertains to foreclosure cases.

    I know what you’re thinking. I’m just a self-interested, foreclosure defense attorney who’s trying to delay foreclosures and let people live for free. I’m upset because the courts are making that more difficult. Right?

    Before you blow off my concerns in that manner, you tell me. Are my concerns legitimate? Is this how a judicial system should operate? You tell me …

    As a foreclosure defense lawyer, I’ve seen pro se homeowners attend hearings in their cases and not be allowed to speak. Not one word. It wasn’t that the judge didn’t hear the homeowner or didn’t realize he/she was present, either – the homeowner asked the judge to speak at a duly-noticed hearing and was not permitted to do so. Homeowner loses, yet couldn’t say one word. Isolated incident, you say? I’ve personally seen it more than once.

    Not being permitted to speak has not been limited to pro se homeowners. I have personally been threatened with criminal contempt – criminal contempt – for moving to disqualify a judge after striking my defenses without letting me say one word about those defenses. Your defenses are stricken, you can’t talk, and if you complain about it, I’ll throw you in jail.

    In many parts of Florida, attorneys are not permitted to attend foreclosure hearings by phone – regardless of how insignificant or short the hearing may be. Never mind that the Florida Supreme Court created a rule of judicial administration which requires phone appearances be permitted for hearings that are 15 minutes or less absent “good cause” – in many parts of Florida, attendance by phone is simply not permitted.

    I’ve heard some justify this procedure by explaining how it’s difficult to deal with phone appearances in foreclosure cases. Really? How is it any more difficult than in other types of cases? Frankly, I can’t help but wonder if the prohibition on phone appearances is designed to make it harder for defense lawyers to appear in cases for homeowners, enabling the courts to push through those cases faster. (Prohibiting phone appearances obviously makes it harder and more expensive to attend hearings, often making the difference in a homeowner’s ability to afford counsel.)

    That’s an absurd proposition, though, right? Why would our courts care how quickly foreclosure lawsuits are litigated? Judges are neutral arbiters – they don’t care how quickly the cases are adjudicated. Do they?

    The answer to that question is at the heart of the problem. In recent months, the Florida legislature has been putting immense pressure on Florida judges to clear the backlog of foreclosure lawsuits. How much pressure? Well, the legislature controls the amount of funding that goes to our courts – funding that is needed to retain new judges, senior judges, court staff, and clerks (basically, the funding necessary to keep all judges and JAs from being totally overwhelmed). Unfortunately, the legislature has been giving these judges an ultimatum, kind of like parents do to their children regarding allowance. Basically, it works like this … “if you don’t finish these foreclosure cases, we won’t give you more funding.” As such, the legislature holds the judiciary hostage … if the judiciary doesn’t clear cases, then the legislature doesn’t give the judiciary the funding necessary to manage the many thousands of foreclosure lawsuits pending before it.

    Perhaps worse yet, and to my sheer disgust, I’m told the legislature recently cut the pay of Florida judges (for the first time in years), and the clear understanding was that it was done as a way to punish/blame the judges for not clearing up the backlog of foreclosure cases faster. “You won’t enter judgments fast enough for our liking … we’ll cut your pay.”

    (The pay of Florida judges is public record, right? Why is nobody talking about this?)

    The judicial system shouldn’t operate this way. We all learned it in elementary school, how the three branches of government exist as “separate but equal” branches of government, employing a system of “checks and balances” to ensure a fully-functioning government. But that’s not what’s happening right now, certainly not in foreclosure court. In foreclosure-world, the legislature is king.

    You might think this is conjecture and speculation on my part. It’s not. I can’t go a week without hearing how the legislature is forcing judges to move cases. Judges discuss it openly in open court, and not just to me – to everyone. As a result of this dynamic – judges wanting to move cases – I see all sorts of crazy things I’d never see in any other area of law.

    I’ve mentioned the homeowners who can’t speak, the threats of incarcertaion, and the prohibition on phone appearances, but let’s get to some more egregious concerns.

    Judges sua sponte set trials in foreclosure cases (without a Notice of Trial having been filed, without a CMC or pretrial conference, and without discussing/clearing the date with an counsel). This is now routine, virtually everywhere in the state.

    Judges sua sponte set trials in foreclosure cases where a motion to dismiss is outstanding and the defendant has not filed an answer.

    Judges sua sponte set trials with less than 30 days’ notice (such that, as defense counsel, you randomly receive a trial Order in the mail, reflecting you have a trial in 2 weeks).

    The sua sponte setting of trials dominates the landscape of foreclosure-world. Banks often don’t want trials in foreclosure cases, but the judges will set them anyway. Then, even when the plaintiffs are vocal about not wanting a trial in that particular case, judges often insist they go forward anyway. Even stipulated/agreed Orders to continue a trial or vacate a trial Order often go unsigned.

    Sometimes, where trial has been set in violation of Rule 1.440, judges will recognize the error and fix it. (The judges in Pinellas and Hillsborough in particular are good about this, striving to follow the law.) In many others cases, though, judges will proceed with trial anyway. In foreclosure circles, one county has become known for using a stamp – DENIED – right on the motion to vacate trial Order, without a hearing. Case not at issue? Doesn’t matter. Less than 30 days’ notice? Doesn’t matter. Bank doesn’t want a trial? Doesn’t matter. We’re going to trial!

    Often, judges won’t proceed with trial where the defendant hasn’t filed an Answer but will essentially force the Answer to be filed forthwith. How is this accomplished? Easily – either deny the motion to dismiss (often without a hearing), or sua sponte set a CMC to ensure the case gets at issue. Some courts use CMCs as a way to, in my view, browbeat parties into settling. One county, for example, has started setting three CMCs at once – one per week for three consecutive weeks, requiring in-person attendance, at mass-motion calendars that last an hour or more, with no input from counsel on when the CMCs are scheduled. You’re not available? Too bad. You don’t need a CMC three weeks in a row? Yes, you do. Your case will get at issue and it will be set for trial.

    Oh, and if you want to set a hearing in this county, you have to mail in a form – MAIL IN A FORM – and wait for them to respond to you, by mail, with a form that gives you a set hearing date, without any input from you on when that hearing takes place.

    What dominates the thinking from the judiciary – again, not my speculation, but something the judges openly discuss – is their desire to “close” cases. That’s the monster that the legislature has created – evaluating the performance of judges not based on their work as judges but based on the results set forth in an Excel spreadsheet. How many foreclosure lawsuits were filed in that county? How many judgments have been entered? If the ratio of judgments entered to cases filed is high enough, then the judges in that county are doing a good job and deserve more funding from the legislature. If not, then those judges and JAs can all suffer through the many thousands of cases without more help.

    The dynamic is so perverse that I’ve seen judges refuse to cancel foreclosure sales even when both sides ask them to.

    Plaintiff’s lawyer: “We don’t want this foreclosure sale to go forward, judge.”

    Defendant’s lawyer: “We are living in this house. We don’t want this foreclosure sale to go forward, judge.”

    Judge: “Foreclosure sale will go forward as scheduled.”


    This dynamic is particularly difficult to take when the parties have reached a settlement. For example, loan modifications sometimes happen after a judgment but before a sale. That means, essentially, that both sides are willing to forego foreclosure with the homeowner resuming monthly mortgage payments. Incredibly, based partly on their desire to “close” a case, some judges will force a foreclosure sale to go forward even when both parties don’t want it to, having settled their dispute via a loan modification.

    Plaintiff’s lawyer: “We have agreed to a loan modification. We want the foreclosure sale cancelled.”

    Defendant’s lawyer: “We have agreed to a loan modification. We wan the foreclosure sale cancelled.”

    Judge: “Foreclosure sale will go forward as scheduled.”


    Even when both sides are able to resolve disputes before trial, even then they sometimes can’t escape a dress-down from the judiciary. For instance, I’ve watched judges threaten Bar grievances against lawyers – yes, Bar grievances – where they settled the lawsuit by consenting to a foreclosure judgment with a deficiency waiver and extended sale date. Mind you, that’s a perfectly legitimate way to compromise and settle a foreclosure lawsuit – bank gets the house, homeowner avoids any further liability and gets to stay in the house longer so as to pack up and move – but the prospect of the sale date getting pushed out 4-5 months angers some judges. “No, you can’t settle that way. The sale has to happen sooner.” Yes, I’ve seen settlements like this rejected with the sale set sooner than the parties agreed.


    There’s absolutely no rule or law that requires a sale to happen sooner where the parties agree. Unfortunately, the judges are motivated by having that case “closed” so the numbers on the spreadsheet look better for the legislature.

    My natural response is to lament the unfairness of it all. After all, that homeowner gave up the chances of winning at trial predicated on getting more time in the house. I find it terribly unfair that the homeowner gave up a right to trial in exchange for an extended sale date that the judge took away … right? Some judges would scoff at that notion. After all, I’ve heard several times, in open court, ”there is no defense to foreclosure,” or “I’ve never seen a valid defense to foreclosure,” or words of that ilk. Never mind that I’ve had many dozens of foreclosure cases dismissed throughout Florida, including several at trial (25 different judges have dismissed a lawsuit of mine on paragraph 22 noncompliance, for example) … there is no valid defense to foreclosure and, hence, no reason for an extended sale date.

    Another county has become known for punishing any defendants who force a trial to proceed. I personally observed the judge begin every hearing by telling the homeowners and their counsel that they “better” accept a 120-day extended sale date, as if that “offer” was rejected then it would be “off the table” after the trial. The implication here was obvious to everyone in the room … You want to show up and force the bank to prove its case? You’ll lose, and I’ll punish you by ruling against you and forcing you to move out sooner.

    Some would say that the way to deal with this madness is to appeal. Easier said than done. Homeowners facing foreclosure are often in no position to fund an appeal. I’ve taken some appeals for free, but there’s only so many I can handle that way. Oh, and even if you get beyond the issue of funding, go look for published decisions that are pro-homeowner in the First DCA, Third DCA, or Fifth DCA. Many thousands of foreclosure cases have been adjudicated in those areas in the past several years. How many favorable rulings do you think have come out of those jurisdictions during that time? I’ll give you a hint – not many. In many ways, appealing in those parts of the state is like standing at the bottom of Mount Everest and being told “climb.”

    Dealing with this dynamic has been very difficult in recent months. It’s a hard pill to swallow. It’s difficult to watch the judicial system bend at the direction of the legislature. It’s tough to know the concept of “separation of powers” that we all learned in elementary school is being cast aside. It’s hard to feel like the most fundamental concepts of due process are being sacrificed to push lawsuits faster when even the plaintiffs in those lawsuits don’t so desire. It’s hard to feel like these procedures have made it impossible for me to help homeowners in certain parts of the state. It’s frustrating that many reading this will be upset at the entire judiciary, not realizing there are many circuit judges – particularly in Hillsborough, Pinellas, and other areas within the ambit of Florida’s Second District – who are striving to be fair and follow the law notwithstanding all of the pressure from the legislature.

    Mostly, though, I’m disappointed. I’m disappointed that such perverse procedures are happening in our courts every day yet nobody is talking about it – and many don’t even realize it’s happening. I’m disappointed that the justice system I knew is eroding. I’m not going to find a dictionary definition, but that’s what erosion is – a slow process of deterioration such that, before too long, that thing which previously existed is no more.

    I hope everyone shares this blog. I hope my friends, colleagues, attorneys and homeowners all understand what’s happening in our courts. I hope everyone stands up to the legislature and demands it stop this madness. Most of all, I hope the erosion of our judiciary stops … soon.

    Mark Stopa

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