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On procedure and introduction of evidence and objections relating thereto, you can be as needling as you want to recuse a judge, remembering that you need to recuse the next judge as well and move venue to another county. If you have no feel for the situation, skip it because you will simply look like a fool to the judge, your client and opposing counsel — Neil F Garfield, Esq.
What’s the Next Step? Consult with Neil Garfield
For assistance with presenting a case for wrongful foreclosure, please call 520-405-1688, customer service, who will put you in touch with an attorney in the states of Florida, California, Ohio, and Nevada. (NOTE: Chapter 11 may be easier than you think).
Editor’s Note: This story will probably not end well for the lawyer or his client but he exactly what I would have done (I have cuffs put on me twice). If you are unwilling to hold the trial judge’s feet to the fire (the rules and laws of evidence and procedure) then do NOT accept any engagement in which you are defending someone’s property from an invalid note, a non-existent debt and a unperfected mortgage lien.
I have conducted several background interviews with Judges in many jurisdictions and 100% of them replied that if the bank was going to the trouble of filing the foreclosure (judicial or non-judicial) then the allegations of the bank are obviously true. This creates a presumption in favor of the pretender lenders who are collectively called “banks” even when they are not banks.
Don’t be intimated by men and women in black robes. On the other hand you must show a respect for the judicial system. You may want say “you are biased.” Aggression in court often backfires unless you are saving the big bang for your finale.
A good question to ask any judge is whether they would agree with the statement that where there is smoke there is fire, i.e., if the foreclosure is filed the borrower is obviously delinquent on payments that are due. The burden of proof is thus turned on its head.
If I sue you for a loan I say I made to you then it is up to me to prove I gave you the money and prove the terms of payback (demand, installment etc.). I would also be required to show the court that the Entire accounting for the loan is in my regular business records, and show that the borrower made some payments but has been delinquent ever since.
I would also be required to say that if I don’t get paid this money I, as creditor, will suffer a financial loss. AND then I would demand judgment for damages for the losses I proved in court and that were allowable by the original contract for loan.
What is wrong with our judicial system is that the Judges are wrong or not properly informed. But many judicial decisions against borrowers are not wrong — they are inescapably right.This happens when you have tacitly admitted or directly omitted a denial of the debt, the note and the mortgage. I’ve seen a lot of “bad” decisions without a hint of bias. If you are going to admit all the elements of a judicial foreclosure, including the amount owed, you are giving the Judge no choice but to enter a ruling against your client.
In short, it isn’t corruption of the fiduciary at work here so much as the omissions of several essential pleadings and admitting the other side is right before you start. When I sat on the bench I was always looking for admissions against interest — another piece of the puzzle out the window. That is how we manage to cut through the bullcrap to what he honestly believe to be the truth of the matter.
If one side is theoretically right and the other side is theoretically wrong, the side that is wrong will win if the opposition fails to deny facts that are evident as first glance at he prospectus and Pooling Servicing Agreement.
Judges presume that there would be no action before them in court unless there existed a valid debt or obligation, a valid note and a perfected recorded lien on the property. Thus the borrower is left holding the holographic image of an empty paper bad. The information as to what really went on with the origination of the loan has already been decided in the Judge’s mind. The information concerning funding of the origination of the loan, and then assignments (“for value received”) are all truthful representations, because a bank said them.
The prevention of voir dire to a witness who is about to introduce a fabricated document forged by a robo-signor is the height of judicial arrogance. Preventing counsel to at least defend based upon cross examination of the bank’s “witnesses” (most of whom are incompetent because they lack personal knowledge) is a complete denial of due process and provides another level of judicial arrogance.
Here is a practice pointer and message to judges: Ask for a sidebar in which you remind the judge that he is not here to decide the case until the case is over and there is no demand for a jury trial. His job is not to assess the veracity of the question but only whether it was properly formulated and relates to any of the claims or defenses filed in the record.
Then comes the zinger. You should say to the Judge that if you are already precluding this case by your own bias arising out of the assumption that the banks wouldn’t foreclose unless their claims were true then he/she must recuse themselves. So what is it going to be Judge — bias or the bliss of blind justice?
As you feel the approach of a enraged Judge who is likely to say that he doesn’t’ need a lecture from you on how to be a judge then you should ask him politely who else he can go to in order to prevent his bias from producing an unjust result. If you think he/she is about to explode then add — because it is obvious that you need a lecture from someone.
Before you travel the recusal route be aware that the Judges all talk about you behind closed doors and while they are not supposed to deal with advice on individual cases or lawyers they do it anyway. When the next Judge is assigned he will have heard only the side of the Judge before him and being a judge and expecting the other judges to cover his back, he will try to mend the record such that the committee in charge of judges does not get wind of these antics.
The new Judge will at first appear to be cold and dispassionate, but he is only waiting for the opportunity to do something that will devastate your case. So ask for a sidebar again. And ask the Judge if he is close friends withe prior judge. Ask if he had any conversation with the prior judge regarding this case? What was said? Given that, Judge, my client feels that a fair trial in this county is probably impossible, asking for a change of venue to another county.
Fireworks in open court today. Matthew Bavaro and Judge Alan Schwartz did not see eye-to-eye in today’s Miami-Dade foreclosure trial.
Tuesday 18th December 2012
by mbavaro
Many of you know that I was in trial this morning for a Miami-Dade County foreclosure client. The judge was the Honorable Alan Schwartz. It was quite the show that left jaws dropping in open court. The judge allowed the note and mortgage into evidence without objection from me. Then the bank tried to introduce the Notice of Acceleration and the loan payment history. I objected and asked the court to allow me to voir dire the witness prior to the introduction of the records. This means I asked for the right to questions the witness about their knowledge regarding the records keeping practices of Bank of America. The judge did not allow me to ask any questions at this stage and allowed the documents into evidence over objection.
So, the bank rested and I got an opportunity to cross examine the witness, or so I thought. I was barely allowed to even ask a question. He shot me down almost every time I asked something. When I went to put my position on the record, he would not allow me to open my mouth. Well, I am not a wall flower, I am going to stand up for my clients.
The acceleration notice that Bank of America sent was invalid in my opinion and about a dozen other judges around the state have found in favor of the homeowner on this very issue with the same acceleration letter from Bank of America. When I raised this to him, he could not believe that I had the audacity to actually ask him to rule in favor of my client. He implied that he is not going to allow a homeowner to stay in their homes without paying their mortgage even if the bank screwed up. When I asked to read the appellate opinions into the record regarding the paragraph 22 defense, his response was basically that he did not care about the letter they sent and the fact that they filed a foreclosure action alone is good enough for him.
At that point I asked the judge to respect my client’s due process rights and pointed out that he was ignoring appellate cases from around the state. At that point he turned to the bank’s lawyer and said “I guess I better let Benjamin Cordozo III ask some questions”. I took this as a personal attack on me, so I asked the judge to recuse himself because by making that statement he showed that he could not be fair to me or my client. He then said that I should take it as a compliment, but he clearly did not mean it as a compliment. He meant to insult me in my opinion. I said that not only was it not a compliment, but I believes that the court intended to slight me in the middle of trial in front of a courtroom full of people. He was not too pleased at this point that I was standing up to him. I started to hand write a motion to recuse him on a piece of yellow notebook paper when he then said that he would recuse himself.
Afterwards when the court reporter started to get up, he made a number of personal attacks on me. Fortunately, the court reporter got back in her seat and got the personal attacks on the record (hopefully, I am waiting for the transcript). At one point he even said I would have a “short and unhappy career”. I am not sure if that was meant to be a threat or not. Well, Your Honor, I have been practicing law for over thirteen years and, thank the Almighty above, my career has been extremely successful because I work hard, I fight for my clients, and I never roll over and play dead.
In the thousands of cases I have handled, I do not recall ever asking a judge to disqualify themselves, but what is going on in Miami-Dade county before certain judges is a travesty of justice. I see homeowner after homeowner losing their homes every day without regard to due process of law. I even saw Judge Alan Schwartz force a case to trial when the homeowner had a Motion to Dismiss pending that had not been ruled on yet. So, the homeowner did not even get to file any affirmative defenses! The case was not at issue and it was CLEALRLY error to force the case to trial. Of the 40 or so cases set for trial today, my client was the only one who walked out of their without a sale date, except for a couple of cases where the bank failed to show up.
Miami-Dade county is just setting hundreds of foreclosure cases for trial at a time without regard to whether any attorney is available or ready. I think this is a problem and shows that in Miami-Dade county, they are just interested in plowing through foreclosures, not administering justice and due process. I am an experienced trial attorney and I will try foreclosure cases all day long because I love fighting for my clients. However, at least give the homeowners a fair shake and rule in their favor when appropriate.
Read the recusal order here.
Foreclosure Defense in Miami-Dade
Posted on December 18th, 2012 by Mark Stopa
I don’t know Matthew Bavaro, a fellow foreclosure defense attorney who practices in Miami. However, the story he posted on his blog today struck a cord with me, as it’s eerily similar to an experience I had in Miami a few weeks ago. At this point, it’s time – perhaps past time – that I shared my experience and voiced my concerns.
I had a trial scheduled in Miami, and when I arrived in court, it was apparent that dozens of other trials had all been set for the same time, before the same judge. While it’s never ideal to have to sit around and wait for your case to be called, it gave me the chance to watch other cases. Wow, what a nightmare. As each trial started, the judge made an unsolicited “offer” to defense counsel of a 120-day sale date, advising the defendant that if he/she did not take the deal, the “offer” would be off the table after the trial. That was the judge’s routine procedure – without hearing any evidence, or knowing anything about the facts of the case, the judge was essentially telling the homeowner “you better consent to judgment and accept a sale date in 120 days or I’m going to rule against you and set an earlier sale date.”
Punishing homeowners for going to trial. Wow. Just … wow. That alone is nuts. Candidly, I told that story to a local judge (not a fellow defense attorney – a local JUDGE), and he couldn’t believe it. There is no circumstance – none – where a judge should be taking it upon himself to tell a defense attorney that he is going to lose at trial and he should accept the judge’s deal, and that’s precisely what this judge was doing.
Can you imagine this in any other context? How about a criminal case … judge tells the defendant “you better accept this plea, as if you go to trial, I’m going to rule against you and impose a harsher sentence.” Totally nuts.
Anyway, it only got worse from there. As the “trials” proceeded, they weren’t trials at all. Nobody even sat at counsel table. Instead, the judge forced everyone to stand, right in front of the bench, for the trial. Clearly, the judge wasn’t intending that the “trials” last very long, not even allowing the homeowners or their lawyers to sit down.
As the trials went forward, to my amazement, it was typically not the plaintiffs’ attorneys who were asking the questions, but the judge himself! Yes, instead of forcing the plaintiffs’ lawyer to question the witnesses and prosecute the cases, the judge took it upon himself to prosecute the cases from the bench. That didn’t just happen once or twice, either – it was the judge’s routine.
The combination of what I observed – the judge trying to coerce defendants into settling, then prosecuting the cases for the plaintiffs – convinced me that I could not get a fair trial. So when my case was called, I moved to disqualify the judge.
Once he saw my case was going to be contested, the judge immediately pushed my case to the end of the docket. Hence, I kept watching the same broken record, one “trial” after another.
Finally, it got to my turn. Before the “trial” started, I finished my motion to disqualify the judge. I explained in detail the facts set forth above and how they caused me a well-reasoned fear that the judge could not be fair and impartial. Motion denied.
Then I moved to continue the trial so I could file a written motion to disqualify. Motion denied.
Then I moved for a stay pending appeal, as I was entitled to have the appellate court rule on whether the judge could preside on the case before the trial proceeded. Motion denied.
Then, before the trial began, I argued the plaintiff should not be allowed to introduce certain exhibits into evidence because plaintiff failed to provide copies to me before trial, as the court had ordered. The judge asked the plaintiff if that was true and counsel admitted it was. The judge asked if counsel had an excuse and he had none. The plaintiff was stuck – they violated an order and failed to provide me documents that I was entitled to receive before trial. But instead of punishing or penalizing the plaintiff, the judge ordered the trial was continued so plaintiff could provide me the documents.
I immediately interjected, telling the judge I did not ask for a continuance. The judge seemed surprised, asking me what I thought the remedy should be. I explained that the trial should proceed, but the plaintiff should not get to use the exhibits it failed to provide to me. That would mean, of course, that the plaintiff could not prove its case (and that I would win at trial), and the judge made it clear that wasn’t an option. So the judge again ruled the trial was continued.
How frustrating. The plaintiff screwed up, but I was being forced to come back again on a different day (from Tampa). So I explained how I had traveled to the trial from Tampa, and that I was prepared, so if I had to come again because the plaintiff screwed up, then I should get fees for having to do so. Motion denied (technically, deferred ruling until after the case was over, but basically denied).
These are the facts, as they transpired, as they would appear on a transcript. What the transcript won’t reflect, however, is the indescribably nasty way the judge treated me. The hostility of his tone. The anger in his voice. HOW DARE I come into his court and ask for – no, insist upon! – due process in a foreclosure case. The hostility was so apparent, I felt compelled to say, as the trial was ending “let the record reflect that the judge is staring at me with an incredibly nasty stare,” or words to that effect.
At that point, the judge was truly irate, inviting plaintiff’s counsel to comment about the judge’s demeanor. That prompted me, of course, to ask why the judge was questioning the factual basis of my motion to disqualify him. Then the judge smiled at me, waved, and said “have a nice trip back to Tampa, counselor,” in the most condescending tone I’ve ever heard – not just in a courtroom, but ever.
Read Matthew Bavaro’s post. This isn’t about me, and it’s not about Mr. Bavaro. This is about a court system that is repeatedly and systematically causing experienced, reasonable attorneys to believe there is nothing close to due process or fair trials transpiring in foreclosure cases in Miami right now. Perhaps most alarming is that the judge with whom I had my bad experience was NOT the judge before whom Mr. Bavaro had his. In other words, the issues in Miami aren’t limited to one judge – multiple judges are causing these concerns.
I get that the judges wear the robes and get to make the rulings. They have the authority, and no matter how much I disagree with the rulings, they have to be respected. I get that. And I’m not suggesting that anyone not respect the judges and not follow their rulings. However, when the judges don’t follow the law, and act in ways that make it clear they aren’t comporting with requirements of due process, it’s up to us, as advocates, to do whatever possible – within the law and professional ethics – to compel them to do so. We aren’t doormats – we’re advocates. Even when it’s uncomfortable, we have to act as advocates for our clients.
I left Miami that day with a continuance. In virtually every other case, the Plaintiff got a foreclosure judgment, often with little or no opposition. I talked to several other defense attorneys about the process, and though most shared my concerns, most of them were afraid to say anything or do anything about it (for fear of upsetting the judge). I’m sorry, but being a doormat isn’t the answer.
From what I understand, the senior judges in foreclosure cases get paid $300/day. I’d very much like to think that the Miami judges aren’t rushing through trials in this manner because they’re trying to get through the work day faster. Whatever the motive, however, it’s time – probably past time – that defense attorneys act as advocates and help the judges understand that the processes being described by Mr. Bavaro and myself are wrong.
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Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: bias, learning aggression in the courtroom., motion to recuse, ore tenus motion to recuse, presumptions, recusal, voir dire the judge, voir dire witness | 461 Comments »
