Approved "Sandbagging" Of Homeowners At Court Hearings, Banks Filing Incomplete Affidavits Reflect Disregard For Procedure By Some F'closure Judges

Jacksonville, Florida foreclosure defense attorney Chip Parker writes in The Florida Times Union:

• With all due respect to Judge J. Thomas McGrady, his recent guest column reflects the state of denial demonstrated by our judiciary about the general failure of Foreclosure Court in Jacksonville and throughout Florida.(1) In the nearly two decades that I have practiced law in Florida’s courtrooms, I have never witnessed a process so blatantly tilted in favor of one party, which happens to be the mortgage industry.

• McGrady references a procedure known as summary judgment, which he correctly points out as an efficient proceeding for disposing of cases when no issue of fact is present. Because summary judgment is an extraordinary measure that terminates a homeowner’s ability to keep his home, there are strict legal requirements that ensure fairness in the process.

• All evidence upon which the mortgage company intends to present to prove its case must be provided to a homeowner 20 days before the hearing, but in reality, the bank lawyers often “sandbag” defendants by presenting key evidence at the hearing.

• Additionally, affidavits — written testimony sworn under penalty of perjury — are always used to prove the bank’s case. Since the bank affidavits reference amounts due by the homeowner, business records must be attached but, in reality, never are. These affidavits are particularly disturbing because many servicers now admit that they were executed by employees who had no idea whether the statements were true.

• Judges’ own statements reflect how out of touch they are with the issue of foreclosure fraud and how willing they are to overlook thousands of instances of lying by plaintiffs in most every foreclosure case. As a group, they shrug off the lies as “sloppy paperwork.”

• While McGrady correctly states that a judge’s job isn’t to “go behind the paperwork submitted in summary judgment,” it is the judge’s job to disallow evidence that clearly fails to comply with the rules of procedure even if the homeowner isn’t present.

• Area judges have stated on the record that they do not require these rules to be followed in foreclosure cases, and lawyers throughout the state describe similar situations in their courtrooms.

For more, see Guest column: In reply: Serious flaws in foreclosure courts allowed to continue.

(1) See J. Thomas McGrady: 'Rocket docket' is a misnomer.