Miami-Dade Circuit Court — choked with foreclosure cases, many dating to 2009 — has gotten tough on pushing cases through the system.
Five months into a state-funded project, Florida’s busiest circuit court is conducting hundreds of foreclosure trials a week.
With $626,000 in special funds for the fiscal year ending June 30, 2013, the court has added two senior judge slots and a staff of case managers to help clear a backlog of some 53,668 foreclosure cases.
“It’s a rocket docket,” said Miami-Dade Circuit Judge Jon Gordon, a senior judge who is churning through about 50 trials a day.
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Regular civil division judges also handle foreclosure proceedings, typically the more complicated ones, along with other cases.
Miami-Dade remains an epicenter for foreclosures. One in every 201 homes in Miami-Dade received some type of foreclosure filing in November, according to RealtyTrac, a California real-estate data firm. That compares with one in every 728 homes nationally.
The court’s challenge: to chip away at the mountain of cases, even as new foreclosure filings have picked up after a dramatic slowdown in 2010 and 2011, when banks faced regulatory challenges to egregious “robo-signing” practices.
“There is a consensus across the state that the locked up backlog [of foreclosure cases] is contributing to Florida’s economic difficulties, and the only way out of this is through it,” said Miami-Dade Circuit Judge Jennifer Bailey, administrative judge for the civil circuit division. “We’ve been charged by the Supreme Court with this funding to move these cases.’’
Since June, the court has reduced the backlog by more than 3,300 cases.
Miami-Dade’s most controversial tactic: The court is setting foreclosure cases for trial, forcing often reluctant parties to take action.
In the past, “We relied on the parties to move the cases ahead, and that truism doesn’t apply with foreclosure cases,” Bailey said. “We said: ‘We’re setting cases for trials.’ That’s all we’re doing.”
In most other types of lawsuits, one or both parties are motivated to press forward, filing motions and seeking hearings that move the case along.
But foreclosures are often different. The property owners may try to delay as long as possible, allowing more time to live in a residence, usually without paying, or even renting it out.
The lenders may have reasons of their own to delay. They may not be ready to take title to a property because they are still working through a pile of homes they took back earlier. They may not want to have to begin paying condominium or homeowners association fees, or to assume responsibility for maintenance.
Bailey said a variety of earlier strategies aimed at cajoling the parties in foreclosure actions to move their cases ahead have largely failed. Among them are case management conferences. “We realized we were just spinning our wheels,” she said.
“We said for the better part of two years, ‘Move your cases forward,’ ” said Bailey, who notes that motions filed in the court are sometimes left pending for years because attorneys never press for a hearing. “We see every procedure you could possible imagine to avoid going to trial.”
When the court issues a trial order, setting a case for trial, the parties have at least 30 to 45 days to prepare or to present some grounds for a continuance, or postponing the matter yet again.
“If there is good reason, we’ll continue the case,” Bailey said. “I don’t see a lot of good excuses.”
Most trials are short and simple. Judges can plow through a one-witness foreclosure case in 15 minutes if it isn’t contested, the judge said. Contested cases with two witnesses can take a couple of hours.
Attorneys, especially defense attorneys, don’t like the court’s tough line.
Bruce Jacobs, a Miami attorney who specializes in foreclosure defense work and hosts a weekly radio program called Mortgage Wars on WZAB-AM 880 in Miami, said the court’s efforts are well intended but can hamper the defense’s ability to challenge a bank’s evidence that it is entitled to foreclose.
Jacobs said he has shown up in court objecting that lenders have refused to provide documents he requested to prepare a defense until the day of trial. “They haven’t provided me anything, and the judge sends me outside the courtroom to look at them and then it’s, ‘Let’s go to trial,’ ” he said, expressing frustration at being asked to speed-read important documents.
Jacobs said under the law, it isn’t enough for a lender to show that a homeowner hasn’t paid a loan; the lender must prove it has the right to foreclose. That often can be dicey when mortgage loans have been packaged into securities and are being serviced by a third party and have been passed from one institution to another.
“I’m all in favor of moving these cases forward, but they’ve got to hold both sides to the rules of procedure,” Jacobs said.
Last Thursday, Sergio Cabanas, a Pembroke Pines attorney, was in court arguing to postpone a foreclosure trial set for that morning, because, among other things, his attorney had another hearing in Broward County the same morning.
Gordon, the senior judge, denied Cabanas’ request. “You’re here today,” the judge said.
Cabanas, who defends foreclosure cases, claimed it would be “almost like a Woody Allen skit,” for him to be both a witness and the attorney in the case, but the judge brushed aside his argument.
In Miami-Dade, the court typically won’t consider requests for continuances made the day of trial, except in an emergency. Such requests must be filed at least seven business days ahead of time for review by a judge on the foreclosure team.
Forced to go to trial, Cabanas acknowledged that he hadn’t made payments on the loan since early 2009, even as the bank laid out its documentation to foreclose.
Asked if a signature on a document was his, Cabanas said it looked like it, but he had “no specific recollection” of signing it.
Cabanas then raised one issue after another — to no avail.
Among other things, he said he was trying to get a loan modification for the rental property, held in a trust.
He questioned the bank representative’s qualifications to be a witness in the case. He challenged the bank’s right to foreclose at all, demanding proof the mortgage had been properly transferred when the original lender, World Savings, was acquired by Wachovia, which in turn was acquired by Wells Fargo.
The judge overruled his objections.
“I’m running out of time, and I’m running out of patience,” Gordon finally told Cabanas.
Soon afterward, he ruled in favor of the bank.
Cabanas later said he plans to file an appeal.
“In my case, they’re overlooking certain burdens of proof and other evidence that would never be tolerated in other proceedings,” Cabanas said. “They’re under the gun, no matter what, come hell or high water, to push these cases off the cliff.’’