The Foreclosure Case Is Set For Trial ? Part I
On a beautiful sunny morning in Southwest Florida, one particular courtroom in the Lee County Justice Center was buzzing with the chatter from attorneys preparing for the 74 non-jury foreclosure trials set for that morning. Each trial was set for 15 minutes.
Have you ever met an attorney who could say anything in 15 minutes? How about 148 attorneys talking for about 7 ½ minutes each? That is what our judicial system has allotted for the plaintiff to attempt to prove their case and the defense to put on their case, should they decide to do so. As an attorney that likes to try cases, the thought of 74 trials is quite stimulating! However, I also know it takes a little bit longer than 15 minutes to present a case to a judge. So, what is getting done in these 15 minutes? And why the rush? What else can happen to your foreclosure case?
Initially, and we’re all aware of the situation, Lee County was one of the hardest hit markets with the economic downfall. In this circuit alone, there were more than 47,000 civil and foreclosure filings during 2008-2009. Senior Judges and Magistrates were brought in to help clear up the dockets. With a backlog of more than 34,000 foreclosure cases clogging up the Lee County court system at the start of 2010, an administrative order was issued locally requiring all foreclosure cases involving residential homestead property to be referred to a mediation program. While the intention of these policies is good, it seems they may not have had the desired effect on the civil court dockets…at least not in the long run.
Attorneys defending the rights of homeowners in Lee County have struggled with courts not particularly sympathetic to their clients’ economic plights. While current caselaw is clear on what the standard is for defeating a Motion for Summary Judgment, it’s been a hard-fought battle to get past summary judgment in Southwest Florida. And sometimes, even if you are able to defeat summary judgment the first time, Plaintiffs have been given a second bite at that apple and get another court date for their Motion for Summary Judgment. With these cases, it is important to really dive into the issues presented throughout the case and look into possible conflicts with what the Plaintiff, i.e., the Lender, presented.
In attempts to clean up dockets that have 2, 3 and 4-year-old cases on them, Lee County courts generally give two docket soundings/court dates before noticing the case for trial. Depending on when the first docket sounding is noticed, that means a case can go to trial within six months. With cases involving hundreds of pages of documents, that is not nearly enough time to adequately prepare a case for trial, either from a plaintiff or defense prospective. There are things that need to get done in between the court dates, and these things take time (remember, we’re talking about not just one attorney, but two attorneys trying to coordinate events).
The Courts are allowing the Plaintiffs to re-notice their Motions for Summary Judgment either on the trial date or even before, if hearing time is available. This has been yet another way to “resolve” the cases in order to get them off the docket. Understandably, the intention is a good one. Why should these 4-year-old cases be sitting in the court system with no movement? But when it comes down to it, these are cases the Plaintiffs (Lenders) have filed, not the court system. If a Plaintiff hasn’t taken action in a particular case, there may be a good reason for it. The bank might actually be working something out with the homeowner. The bank might be reviewing their documents to make sure everything was done appropriately, as we’ve seen in the last few months with several of the largest financial institutions worldwide. Whatever the reason, it is likely that when the Plaintiff was ready to proceed against a homeowner, they would. It doesn’t seem as if the courts should be deciding for them when, and how, to prosecute their cases just to close the books on that particular case number.