“I challenged that and the judge completely ignored the report and my challenge”: How homeowners without knowledge of legal requirements for practice in court lose cases they could have won.

People often tell me that they challenged something in court and that the judge completely ignored their challenge. The problem is that most people don’t know the elements of a legal challenge in court. Based upon my review of transcripts, reports, and proffers of evidence and testimony, nearly all such cases consist of raising questions in the expectation that the judge will answer the question.

Not only is that not within the job description of a judge, it is expressly prohibited. The judge may not act as an advocate for either side. The judge can only act upon the presentation of evidence and argument that is properly brought before the court. Although there is wide latitude for discretion by the court, any action or statement by the court that clearly shows that the judge is attempting to guide one side or the other toward the correct presentation will ordinarily be considered the foundation for a claim of bias and a motion for recusal.

Although I vigorously disagree and dissent from the action taken by the third District Court of appeal in Miami and removing a judge from a case, allegedly for bias in favor of the homeowner, the decision is not without a legal basis.
The attorney for the homeowner was treading the new ground and frankly failed to connect all the dots necessary to make it absolutely clear that there was at least probable cause that the documents have been fabricated and forged. It must be something stronger than a question of whether the documents were fake and in nearly all court cases, the burden of persuasion is extremely high. If that was not the case the court docket would be filled with such motions.
The judge took it a little bit further and set a hearing to show cause why the attorney and the client should not be held in contempt for lying. In a different context, the action by the judge would probably have been affirmed by any appellate court.
We live in the context of foreclosure litigation where the general consensus is in agreement that the transactions with homeowners were loans, that when homeowners start making payments a default has occurred, and that relief for such homeowners would be contrary to maintaining the sanctity of contract.
So the action by the judge appeared to be out of context, even though she was right. And being out of context it looked like she was favoring one side over another. In my opinion, she was just exasperated by the flood of fabricated, false, and forged documentation. 

But I still maintain that the 3rd DCA was wrong. they know by now that there are hundreds of cases in which judgments or settlements have been entered based entirely on the inability or refusal of the foreclosure lawyer to either prove he had a viable client or to prove or corroborate the claim that the named plaintiff or beneficiary had a claim.
They know and they knew that in such cases the possibility that real transactions in the real world existed that would have supported or corroborated the false documentation was legally zero (if it existed it had to be presented in the trial).
Every hill seems steepest when you are at the bottom. That is the start of the journey.

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.
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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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Glaski Court refuses to “depublish” decision, two judges recuse themselves.

Corroborating what I have been saying for years on this blog, the Supreme Court of the state of California is reasserting its position that if entity ABC wants to collect on a debt in California, then that particular entity must own the debt. This is basic common sense and simply follows article 9 of the Uniform Commercial Code. If a court were to adopt the position of the banks, then a new industry would be born, to wit: spying on people to determine whether or not they are behind on any payment to anyone and then beating the real creditor to court, filing a complaint and getting a judgment without the real creditor even knowing about it. The Supreme Court of the state of California obviously understands this.

This is not really complicated although the words used are complicated. If you find out that your neighbor is behind in payments on their credit cards, it is obvious that you cannot serve your neighbor and collect. You don’t own the debt because you never loaned any money and because you never purchased the debt. If you are allowed to sue and collect on the credit card debt, you and the court would be committing a fraud on the actual creditor. This is why it is absurd for lawyers or judges to say “what difference does it make who they owe the debt to?  They stopped making payments and they are clearly in default.”  Any lawyer or judge makes that statement is wrong. It lacks the foundation of the factual determinations required to establish the existence of the debt, the current balance of the debt after deductions for all payments received from all parties on this account, and the ownership of the debt.

In the first year of law school, we learned that the note is not the debt.  The note is evidence of the debt and the terms of repayment but it is not a substitute for the actual transaction documents. Those transaction documents would have to include proof of transfer of consideration, which in this case would mean wire transfer receipts and wire transfer instructions. The banks don’t want to show the court this because it will show that the originator in most cases never made any loan at all and was merely serving as a sham nominee for an undisclosed lender. The banks are attempting to use this confusion to make themselves real parties in interest when in fact they were never more than intermediaries. And as intermediaries that misused their positions of trust to misrepresent and create fraudulent “mortgage bond” transactions with investors that led to fraudulent loans being made to borrowers.

The banks diverted or stole money from investors on several different levels through multiple channels of conduit sham entities that they called “bankruptcy remote vehicles.” The argument of “too big to fail” is now being rejected by the courts. That is a policy argument for the legislative branch of government. While the bank succeeded in scaring the executive and legislative branches into believing the risk of “too big to fail” most of the people in the legislative and executive branches of government on the federal and state level no longer subscribe to this myth.

There are dozens of other courts on the trial and appellate level across the country that are also grasping this issue. The position of the banks, which is been rejected by Congress and the state legislatures for good reason, would mean  the end of negotiable paper. The banks are desperate because they know they are not the owner of the debt, they are not the creditor, they have no authority to represent the creditor, and their actions are contrary to the interests of the creditor. They are pushing millions of homeowners into foreclosure, or luring them into an apparent default and foreclosure with false promises of modification and settlement.

The reason is simple. Without a foreclosure sale at auction, the banks are exposed to an enormous liability for all the money they collected on the alleged defaulted loans. The amount of the liability is vastly in excess of the entire principal of the loans, which is why I say that the major banks are publishing financial statements that are based on fictitious assets and fictitious income. Nobody can ignore the fact that the broker-dealers (investment banks) are getting sued by investors, insurers, counterparties on credit default swaps, government agencies who have already paid for alleged “losses”, and government agencies that have paid on guarantees for mortgages that did not conform to the required industry-standard underwriting practice.

This latest decision in which the Glaski court, at the request of the banks, revisited its prior decision and then reaffirmed it as a law of the land in the state of California, is evidence that the courts are turning the corner in favor of the real creditors and the real debtors. The recusal by two judges on the California Supreme Court is interesting but at this point there are no conclusions that can be drawn from that.

This opens the door in the state of California for people to regain title to their property or damages for the loss of title. It also serves to open the door to discovery of the actual money trail in order to trace real transactions as opposed to fictitious ones based upon fabricated documentation which often contain forgery, backdating, and are signed by people without authority or people claiming authority through a fictitious power of attorney.

Glaski Court Reaffirms Law of the Land In California: If you don’t own the debt, you cannot collect on it.

Attorney Mark Stopa Shows Guts Confronting Appellate Court Bias

I have just received a copy of a daring and tempestuous motion for rehearing en banc filed by the winner of the appeal. The homeowner won because of precedent, law and common sense; but the court didn’t like their own decision and certified an absurd question to the Florida Supreme Court. The question was whether the Plaintiff in a foreclosure case needs to have standing at the commencement of the action. Whether it is jurisdictional or not (I think it is clearly jurisdictional) Stopa is both right on the law and right on his challenge to the Court on the grounds of BIAS.

The concurring opinion of the court actually says that the court is ruling for the homeowner because it must — but asserts that it is leading to a result that fails to expedite cases where the outcome of the inevitable foreclosure is never in doubt. In other words, the appellate court has officially taken the position that we know before we look at a foreclosure case that the bank should win and the homeowner should lose. The entire court should be recused for bias that they have put in writing. What homeowner can bring an action or defend an action where the outcome desired by the courts in that district have already decided that homeowners are deadbeats and their defenses are quite literally a waste of time? Under the rules, the Court should not hear the the motion for rehearing en banc, should vacate that part of the decision that sets up the rube certified question, and the justices who participated must be recused from hearing further appeals on foreclosure cases.

Lest their be any mistake, and without any attempt to step on the toes of Stopa’s courageous brief on an appeal he already won, I wish to piggy back on his brief and expand certain points. The problem here might be the subject of a federal due process action against the state. Judges who have already decided foreclosure or mortgage litigation cases before they even see them are not fit to hear them. It IS that simple.

The question here was stated as the issue of standing at the commencement of the lawsuit. Does the bank need to have a claim before it files it? The question is so absurd that it is difficult to address without a joke. But this is not funny. The courts have rapidly evolved into a position that expedited decisions are better than fair decisions. There is NOTHING in the law that supports that position and thousands of cases that say the opposite is true under our system of law. Any judge who leans the other way should be recused or taken off the bench entirely.

In lay terms, the Appellate Court’s certified question would allow anyone who thinks they might have a claim in the future to file the lawsuit now. And the Court believes this will relieve the clogged court calendars. If this matter is taken seriously and the Supreme Court accepts the certified question for serious review it will merely by acceptance be making a statement that makes it possible for all kinds of claims that anticipate an injury.

It is bad enough that judges appear to be ignoring the requirement that there must be an allegation that a loan was made by the originating party and that the Plaintiff actually bought the loan. This was an obvious requirement that was consistently required in pleading until the courts were clogged with mortgage litigation, at which point the court system tilted far past due process and said that if the borrower stopped paying there were no conditions under which the borrower could win the case.

It is bad enough that Judges appear to be ignoring the requirement that the allegation that the Plaintiff will suffer financial damage unless relief is granted. This was an obvious requirement that was consistently required in pleading until the mortgage meltdown.

Why is this important? Because the facts will show that lenders consistently violated basic and advanced protections that have been federal and State law for decades. These violations more often than not produced an unenforceable loan — as pointed out in law suits by federal and state regulators, and as pointed out by the lawsuits of investors who were real lenders who are screwed each time the court enters foreclosure judgment in favor of the bank instead of the investor lenders.

It is not the fault of borrowers that this mess was created. It is the fault of Wall Street Bankers who were working a scheme to defraud investors by diverting the real transaction and making it appear that the banks were principals in the loan transaction when in fact they were never real parties in interest. Nobody would seriously argue that this eliminates the debt. But why are we enforcing that debt with completely defective mortgage instruments in a process that confirms the fraud and ratifies it to the damage of investors who put up the money in the first place? The courts have made a choice that is unavailable in our system of law.

This is also judicial laziness. If these justices want to weigh in on the mortgage mess, then they should have the facts and not the stories put forward by Wall Street that have been proven to be pure fiction, fabrication, lies and perjury. That the Court ignores what is plainly documented in hundreds of thousands of defective mortgage transactions and the behavior of banks that resulted in “strangers to the transaction” being awarded title to property — that presents sufficient grounds to challenge any court in the system on grounds of bias and due process. If ever we had a mass hysteria for prejudging cases, this is it.

If the Bank Filed Foreclosure Papers, that’s good enough for me — Judge Alan Schwartz, Dade Countyz


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

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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.

Citizens United Threatens Independence of Judicial System — Tennessee Answer to Problem


COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary CLICK HERE TO GET COMBO TITLE AND SECURITIZATION REPORT

Editor’s Note: The New York Times editorial makes a good point. Many Judges are elcted and even those who are appointed are frequently appointed by elected officials. Having money pour into these campaigns from  banks and servicers, which is what is happening, will conform the worst fears of most citizens who are cocnerned about getting a fair hearing in court. It is difficult to be objective if the majority of your campaign money has come from the financial sector.

  • Remember the judicial system doesn’t actually guarantee justice of a fair result as you would see it. It is there to guarantee a fair hearing. You may think they are the same thing, but if you think about it, they are not the same.
  • This is why presentation and procedure is so important and that from the start you establish credibility — which means objecting to proffers of facts not in evidence and making it clear that you do not concede that the debt still exists, you do not concede that the debt is in default and you do not concede the standing or interest of the party seeking to foreclose or even settle, mediate or modify the loan.
  • That is why it is so essential that you obtain the COMBO Title and Securitization report, and you most probably should have the Loan Level Accounting report that frequently shows that the forecloser on the one hand is declaring a default and on the other hand paying the creditor curing the default. Adding the Forensic Loan Analysis (TILA+) may well pave the ground for damages, recover of attorney fees at an early stage to finance the rest of litigation and attacking the validity (not the existence) of the mortgage lien.
  • The issue is not whether you are right or wrong — a conclusion that is reached at trial. The issue is whether you can get into the CONTESTED factual assertions made by each side and to achieve the result of getting into the discovery stage. discovery. Once, there, most cases settle when the banks and servicers must come up with actual full accounting, actual documents and proof of transactions that referred to on fabricated transfer papers.

I think it is appropriate to ask the Judge in as non-threatening way as possible whether the Judge has any conflicts. Perhaps the question can be phrased that your client is concerned about the amount of money that is flowing into campaigns and the pension money that has been used to purchase what now appear to be worthless mortgage bonds or what may be valid bonds but worth far less depending upon the outcome of the cases that attack either the security instrument or the debt or the note supposedly evidencing the debt.

That way you are introducing the basic issues and at the same time you are asking the Judge to commit himself on record as to whether he has any conflicts or whether there is any relationship or investment which could influence his decisions.

If you are going to do that — and I recommend you do — make sure your client is there or it will seem that you are just using tactics or strategy. Whatever the answer, instruct your client to remain calm and passive.

The very conservative Tennessee Supreme Court has already recognized the problem and issued an order for automatic recusal (self removal by the Judge) where the problem surfaces.

A more interesting proposition is where the prosecutors are elected or appointed in the same way. Prosecutorial discretion (whether to prosecute or not) could undermine the criminal process. Remember that despite the efforts of the  newly constituted investigatory and prosecution units, the politics is running heavily in the direction of the banks despite the public outcry.

Perhaps the answer to all of this is to have retired Judges hear the cases and where appropriate appoint special prosecutors from the private sector.

A Reform for Fair Courts

New York Times Editorial January 28, 2012.

With rising special-interest spending in state judicial elections, there is an urgent need to protect judicial integrity from the flood of campaign cash. Tennessee is leading the way with a new rule prohibiting judges from hearing cases when campaign spending by lawyers or litigants raises a reasonable question of their impartiality.

Adopted earlier this month by the Tennessee Supreme Court, the recusal rule applies to both direct contributions and independent expenditures favoring a judge’s election. It requires judges to step aside when the level of campaign support raises a reasonable concern about his or her ability to be fair. Judges who deny a recusal request will need to provide their reasons in writing, and the final word on recusal will not be left to the challenged judge. The litigants will have a chance to appeal recusal decisions to the court’s other judges.

The United States Supreme Court in a 2009 case recognized the potential threat to public trust in the justice system posed by outsized campaign spending in judicial elections. But few of the 38 states that elect their top judges have tried to combat the problem with more rigorous recusal rules. If special interests knew their campaign spending would be likely to trigger recusal, they might not try as hard to buy up judges.

Tennessee’s good model should help prod court leaders in other jurisdictions to follow suit. Campaign spending problems have plagued judicial races in states like Illinois, Alabama and Pennsylvania. A sensible rule on recusal would significantly increase public confidence in judicial integrity.

Florida Judge Forced to Recuse Himself as Conflicts of Interests Start to Emerge

Editor’s Note: The problem is not just a Judge who received favorable treatment from the lender in a foreclosure action. It is the highly politicized environment of elected and even appointed judges who received, directly or indirectly some form of “generosity” from the financial services sector or whose perception is fundamentally flawed by the constant drumbeat of disinformation from Wall Street Banks.

Research your Judge. Get as much information as possible to determine if there is cause for a reasonable person to believe that the Judge’s decision might be influenced by something other than the facts of the case or the law to be applied.

Judge in Countrywide Case Removed Over Claim of Discount Loan

Feb. 5 (Bloomberg) — A Florida judge was ordered to remove himself from a foreclosure proceeding by Bank of America Corp.’s Countrywide unit after the homeowner claimed the judge received a discount loan from an affiliate of the mortgage lender.

Circuit Judge Hugh Carithers in Jacksonville, Florida, must enter a recusal order and ask Chief Circuit Judge Donald Moran to pick a replacement, a district court of appeals ruled today.

Joseph W. Mines Jr., who is representing himself in the foreclosure proceeding, alleged the judge had received favorable interest rates not available to the public in his own dealings with a lender affiliated with Countrywide, court records show. Mines’s home was just about to be sold when he filed his claim seeking the judge’s removal, according to the case docket.

“This court finds these facts, taken as true as they must be, would prompt a reasonably prudent person to fear that he or she would not obtain a fair and impartial hearing,” the appeals court in Tallahassee, Florida, said its ruling.

Pat Ryan, a courtroom clerk for Carithers, said she hadn’t seen the ruling and couldn’t comment. Directory assistance had no phone listing for Joseph Mines in Jacksonville.

The case is Countrywide v. Mines, 2007-CA-6852, Fourth Judicial Circuit Court of Florida (Jacksonville).

–With assistance from Doris Bloodsworth in Orlando, Florida. Editors: Peter Blumberg, Michael Hytha

To contact the reporter on this story: Cary O’Reilly in Washington at +1-202-624-1859 or caryoreilly@bloomberg.net.


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