Improper Invocation Of Court Jurisdiction, Grant Of Void Judgments Of No Concern To Some Judges In Unchallenged Foreclosure Actions

In Central Florida, Sarasota Herald Tribune columnist Tom Lyons writes:

• Circuit Judge Lee Haworth says a judge has to be neutral in foreclosure cases, and can't act as a defense attorney when there isn't one. But does being neutral really mean a judge must be gullible when there is no one in court to point out obvious problems with documents filed by a bank?(1)

• I'm not convinced neutrality forces judges to ignore major and possibly fraudulent errors in mortgage transfer documents, especially when foreclosure mills have become infamous for filing them.

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• Aside from it being impractical to scour documents in every foreclosure case, [Haworth] says it's improper for judges to question such evidence [of dubious documents] even when they notice it, unless a defense lawyer or defendant raises the issue. Haworth knows some judges -- ones he describes as more activist than he is -- disagree. "Each judge makes their own call," he said.(2)

For more, see Being neutral doesn't mean being gullible.

(1) See The Tampa Tribune: Judges fulfill proper role in state's foreclosure crisis for a similar position expressed by another Florida chief judge, J. Thomas McGrady, the chief judge of the Sixth Judicial Circuit of Pasco and Pinellas counties.

(2) Said another way, Judge Haworth's position is that trial judges have absolutely no obligation to determine whether:

• a plaintiff in a lawsuit has properly invoked the jurisdiction of the court,
• a controversy between the parties named in the lawsuit does, in fact, exist, and
• the necessary parties to the alleged controversy have been brought before the court

unless those issues have been specifically raised by a defendant.

Foreclosing lenders' failure to properly establish that it had the right to bring the foreclosure action appears to lead to the conclusion that such an action lacks subject matter jurisdiction, and the judgment rendered therein is null, void, and with no effect.

See Cone v. Benjamin, 157 Fla. 800; 27 So. 2d 90 (Fla. 1946) for one example of legal precedent in Florida supporting the proposition that, with respect to the effect it may have on real estate, a judgment in favor of a party invoking the jurisdiction of the court (plaintiffs in foreclosure actions, for example) who had no right, title or interest in the real estate, nor any duty to perform with reference thereto, is without jurisdiction, and is null and void, and wholly without effect. The relevant excerpts from the Florida Supreme Court ruling in this case follow (bold text is my emphasis, not in the original text):

• Our view is that the decree in the chancery suit, in so far as it directly affected the real estate, or any right or title therein, was void, because the complainant administrator, who invoked the jurisdiction of the court, had no right, title or interest in the real estate, nor any duty to perform with reference thereto. See 39 Am. Jur. 858-863; Lovett v. Lovett, 93 Fla. 611, 112 So. 768.

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• For the reason above pointed out, we hold that, under Section 4898 C.G.L. of 1927, the said chancery decree was ineffective as against these appellants insofar as it authorized the administrator, under the supervisor and director of the County Judge, to distribute the personal property to the known heirs of the husband, and that it was wholly without effect on the title to the real estate.

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In the above-referenced case, Lovett v. Lovett, 93 Fla. 611, 112 So. 768 (Fla. 1927), the Florida Supreme Court discusses what it is for a court to have "subject matter jurisdiction" in a particular case, and concludes its discussion with this summary (bold text is my emphasis, not in the original text):

• So that, when it is said that a Court has jurisdiction of the subject-matter of any given cause, if these words are to be given their full meaning, they imply, generally speaking, (1) that the Court has jurisdictional power to adjudicate the class of cases to which such case belongs; and (2) that its jurisdiction has been invoked in the particular case by lawfully bringing before it the necessary parties to the controversy, and (3) the controversy itself by pleading of some sort sufficient to that end; and (4) when the cause is one in rem, the Court must have judicial power or control over the res, the thing which is the subject of the controversy. This, is a general way, is what we mean when we say that a Court has "jurisdiction of the subject-matter and the parties" to a cause.

Where the party invoking the jurisdiction of the court by filing the foreclosure action fails to establish that it had any right, title or interest in the real estate, or any duty to perform with reference thereto, it seems clear that neither:

• the necessary parties to the controversy have been lawfully brought before the court, nor
• the Court has "judicial power or control over the res, the thing which is the subject of the controversy"

two of the prerequisites for having subject matter jurisdiction over the case that are necessary for rendering valid judgments.