FORECLOSURE…THE NEW “IT” THING? OWNERS STOP PAYING THE MORTGAGE…FANTASTIC!

Can you imagine if everyone just stopped paying that thing called mortgage but kept up with homeowners/condo associations (because these can foreclose faster than you can blink) Oh what a wonderful world!

This article really does not portray the majority. Some don’t have a job period! If you can… get a great attorney, a loan audit and the lender to the table!

Owners Stop Paying Mortgage … and Stop Fretting About It

Chip Litherland for The New York Times Wendy Pemberton, a barber in Florida, with a customer, Howard Cook. She stopped paying her mortgage two years ago.

By DAVID STREITFELD NYTIMES
Published: May 31, 2010

ST. PETERSBURG, Fla. — For Alex Pemberton and Susan Reboyras, foreclosure is becoming a way of life — something they did not want but are in no hurry to get out of.

Foreclosure has allowed them to stabilize the family business. Go to Outback occasionally for a steak. Take their gas-guzzling airboat out for the weekend. Visit the Hard Rock Casino.

Chip Litherland for The New York Times Alex Pemberton and Susan Reboyras stopped paying the mortgage on their house in St. Petersburg, Fla., last summer.

“Instead of the house dragging us down, it’s become a life raft,” said Mr. Pemberton, who stopped paying themortgage on their house here last summer. “It’s really been a blessing.”

A growing number of the people whose homes are in foreclosure are refusing to slink away in shame. They are fashioning a sort of homemade mortgage modification, one that brings their payments all the way down to zero. They use the money they save to get back on their feet or just get by.

This type of modification does not beg for a lender’s permission but is delivered as an ultimatum: Force me out if you can. Any moral qualms are overshadowed by a conviction that the banks created the crisis by snookering homeowners with loans that got them in over their heads.

“I tried to explain my situation to the lender, but they wouldn’t help,” said Mr. Pemberton’s mother, Wendy Pemberton, herself in foreclosure on a small house a few blocks away from her son’s. She stopped paying her mortgage two years ago after a bout with lung cancer. “They’re all crooks.”

Foreclosure procedures have been initiated against 1.7 million of the nation’s households. The pace of resolving these problem loans is slow and getting slower because of legal challenges, foreclosure moratoriums, government pressure to offer modifications and the inability of the lenders to cope with so many souring mortgages.

The average borrower in foreclosure has been delinquent for 438 days before actually being evicted, up from 251 days in January 2008, according to LPS Applied Analytics.

While there are no firm figures on how many households are following the Pemberton-Reboyras path of passive resistance, real estate agents and other experts say the number of overextended borrowers taking the “free rent” approach is on the rise.

There is no question, though, that for some borrowers in default, foreclosure is only a theoretical threat for a long time.

More than 650,000 households had not paid in 18 months, LPS calculated earlier this year. With 19 percent of those homes, the lender had not even begun to take action to repossess the property — double the rate of a year earlier.

In some states, including California and Texas, lenders can pursue foreclosures outside of the courts. With the lender in control, the pace can be brisk. But in Florida, New York and 19 other states, judicial foreclosure is the rule, which slows the process substantially.

In Pinellas and Pasco counties, which include St. Petersburg and the suburbs to the north, there are 34,000 open foreclosure cases, said J. Thomas McGrady, chief judge of the Pinellas-Pasco Circuit. Ten years ago, the average was about 4,000. “The volume is killing us,” Judge McGrady said.

Mr. Pemberton and Ms. Reboyras decided to stop paying because their business, which restores attics that have been invaded by pests, was on the verge of failing. Scrambling to get by, their credit already shot, they had little to lose.

“We could pay the mortgage company way more than the house is worth and starve to death,” said Mr. Pemberton, 43. “Or we could pay ourselves so our business could sustain us and people who work for us over a long period of time. It may sound very horrible, but it comes down to a self-preservation thing.”

They used the $1,837 a month that they were not paying their lender to publicize A Plus Restorations, first with print ads, then local television. Word apparently got around, because the business is recovering.

The couple owe $280,000 on the house, where they live with Ms. Reboyras’s two daughters, their two dogs and a very round pet raccoon named Roxanne. The house is worth less than half that amount — which they say would be their starting point in future negotiations with their lender.

“If they took the house from us, that’s all they would end up getting for it anyway,” said Ms. Reboyras, 46.

One reason the house is worth so much less than the debt is because of the real estate crash. But the couple also refinanced at the height of the market, taking out cash to buy a truck they used as a contest prize for their hired animal trappers.

Chip Litherland for The New York Times Mark P. Stopa is a lawyer who says he has 350 clients in foreclosure, each paying him $1,500 a year in fees.

It was a stupid move by their lender, according to Mr. Pemberton. “They went outside their own guidelines on debt to income,” he said. “And when they did, they put themselves in jeopardy.”

His mother, Wendy Pemberton, who has been cutting hair at the same barber shop for 30 years, has been in default since spring 2008. Mrs. Pemberton, 68, refinanced several times during the boom but says she benefited only once, when she got enough money for a new roof. The other times, she said, unscrupulous salesmen promised her lower rates but simply charged her high fees.

Even without the burden of paying $938 a month for her decaying house, Mrs. Pemberton is having a tough time. Most of her customers are senior citizens who pay only $8 for a cut, and they are spacing out their visits.

“The longer I’m in foreclosure, the better,” she said.

In Florida, the average property spends 518 days in foreclosure, second only to New York’s 561 days. Defense attorneys stress they can keep this number high.

Both generations of Pembertons have hired a local lawyer, Mark P. Stopa. He sends out letters — 1,700 in a recent week — to Floridians who have had a foreclosure suit filed against them by a lender.

Even if you have “no defenses,” the form letter says, “you may be able to keep living in your home for weeks, months or even years without paying your mortgage.”

About 10 new clients a week sign up, according to Mr. Stopa, who says he now has 350 clients in foreclosure, each of whom pays $1,500 a year for a maximum of six hours of attorney time. “I just do as much as needs to be done to force the bank to prove its case,” Mr. Stopa said.

Many mortgages were sold by the original lender, a circumstance that homeowners’ lawyers try to exploit by asking them to prove they own the loan. In Mrs. Pemberton’s case, Mr. Stopa filed a motion to dismiss on March 17, 2009, and the case has not moved since then. He filed a similar motion in her son’s case last December.

From the lenders’ standpoint, people who stay in their homes without paying the mortgage or actively trying to work out some other solution, like selling it, are “milking the process,” said Kyle Lundstedt, managing director of Lender Processing Service’s analytics group. LPS provides technology, services and data to the mortgage industry.  DinSFLA: WHAT AN IDIOTIC THING TO SAY! Who is exactly milking what??

These “free riders” are “the unintended and unfortunate consequence” of lenders struggling to work out a solution, Mr. Lundstedt said. “These people are playing a dangerous game. There are processes in many states to go after folks who have substantial assets postforeclosure.” DinSFLA: I invite you Mr. Lundstedt to look over this blog and see your “Free Riders”. SIR!

But for borrowers like Jim Tsiogas, the benefits of not paying now outweigh any worries about the future.

“I stopped paying in August 2008,” said Mr. Tsiogas, who is in foreclosure on his house and two rental properties. “I told the lady at the bank, ‘I can’t afford $2,500. I can only afford $1,300.’ ”

Mr. Tsiogas, who lives on the coast south of St. Petersburg, blames his lenders for being unwilling to help when the crash began and his properties needed shoring up.

Their attitude seems to have changed since he went into foreclosure. Now their letters say things like “we’re willing to work with you.” But Mr. Tsiogas feels little urge to respond.

“I need another year,” he said, “and I’m going to be pretty comfortable.”

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“Cat Out Of the Bag” (Trade Secrets) in CAPITAL ONE, NA v. Forbes, Fla: Dist. Court of Appeal, 2nd Dist. 2010

CAPITAL ONE, N.A., as successor by merger to Chevy Chase Bank, F.S.B., Petitioner,
v.
DOUGLAS R. FORBES, Respondent.

Case No. 2D09-4735.

District Court of Appeal of Florida, Second District.

Opinion filed May 12, 2010.

Carrie Ann Wozniak of Akerman Senterfitt, Orlando, for Petitioner.

Nicole E. Durkin of Deeb & Durkin, P.A., St. Petersburg, for Respondent.

LaROSE, Judge.

Capital One, N.A. (the Bank), seeks a writ of certiorari to quash a protective order that allows the disclosure of trade secrets to Mr. Forbes’s consultants and experts. The Bank also asks us to quash the trial court’s order because it did not sufficiently limit the scope of discovery.

Factual Background

The Bank filed a mortgage foreclosure action against Mr. Forbes. Allegedly, Mr. Forbes breached a construction loan agreement. Mr. Forbes filed a counterclaim alleging breach of contract, anticipatory breach of contract, and fraud in the inducement.

Mr. Forbes requested documents from the Bank. It produced responsive documents except, as relevant here, for requests ten and thirteen:

10. All technical and administrative manuals used in the internal communications system of Lender, or through which Lender policies, practices and procedures were communicated to its bank officers, employees, agents, partners, managers and/or “staff,” effective during the period from January 1, 2006 through the present, including, but not limited to, those manuals relating to construction or developer financing.

. . . .

13. All complaints, claims or protests brought in any judicial forum, arbitration proceeding, or industry dispute resolution forum by Lender clients or third parties against Lender alleging any breach of obligations, terms, conditions, or responsibilities by Lender in the conduct or exercise of its responsibilities and obligations with respect to or arising from engaging in the business of banking within the preceding five (5) years.

The Bank sought a protective order. The Bank argued that its construction-lending manual is a trade secret requiring adequate measures to protect against improper dissemination. There appears to be no dispute that the manual is a trade secret. The Bank also argued that other complaints, claims, or protests made against the Bank in any forum in the past five years were irrelevant, not reasonably calculated to lead to the discovery of any admissible evidence, and intended solely to harass the Bank. See generally, Allstate Ins. Co. v. Boecher, 733 So. 2d 993, 995 (Fla. 1999) (holding that there is an exception to the rule of complete discovery where it may be harassing or embarrassing).

After a hearing, the trial court denied the Bank’s motion as to request 13, except it narrowed the time frame to three years. The trial court concluded that the requested documents “may potentially lead to admissible evidence just based upon the counter plaintiff’s theory of policy written or potentially otherwise as to the lender’s motive to pull out of the project.”

As for the manual, the Bank’s counsel brought the document to the hearing for an in-camera inspection. The trial court did not inspect the materials but accepted counsel’s explanation that the materials contained the Bank’s lending guidelines and practices. The Bank’s counsel argued that the Bank would produce the materials if the trial court entered an adequate confidentiality order. The trial court denied the motion for a protective order, but agreed to grant a “confidentiality agreement between the parties for the protection of [the Bank].”

The trial court asked Mr. Forbes’s counsel to take the Bank’s proposed confidentiality order from the hearing and draft an order satisfactory to both sides. The Bank and Mr. Forbes could not agree. Each submitted a proposed order to the trial court. To center the dispute, we note that Mr. Forbes’s proposed order had no provision requiring consultants, experts, or their employees retained for the litigation to consent to the confidentiality provisions before viewing the manual.

The trial court adopted Mr. Forbes’s proposed order. The order provided that documents marked “Confidential” shall not be disclosed to any persons, except for counsel actively engaged in the litigation along with their employees and staff, parties and employees of the parties, persons with prior knowledge of the documents or the confidential information contained therein, and court officials involved in the litigation. Other relevant portions of the order provide as follows:

3. Plaintiff shall produce the documents requested, however the time period shall be limited to three (3) years prior to the date of this Order.

4. That the documents being produced pursuant to Paragraph 10 of Defendant’s First Request for Production of Documents which are marked “Confidential” by Plaintiff’s counsel shall not be disclosed to any persons, except that such documents may be disclosed or otherwise utilized as follows:

. . . .

(B) Such documents may also be disclosed to persons noticed for depositions during the course of such depositions, including retained outside consultants or experts and their employees retained for the purpose of assisting counsel in the litigation;

. . . .

5. Within 30 days after final conclusion of all aspects of this litigation, stamped confidential documents and all copies of same . . . shall be returned to the party or person which produced such documents or, at the option of the producer, destroyed.

(Emphasis added.)

Certiorari Jurisdiction

We may grant a petition for certiorari “only when the petitioner establishes (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the trial (3) that cannot be corrected on postjudgment appeal. We examine prongs two and three first to determine our certiorari jurisdiction.” DeLoach v. Aird, 989 So. 2d 652, 654 (Fla. 2d DCA 2007)(citing Parkway Bank v. Ft. Myers Armature Works, Inc., 658 So. 2d 646, 648-49 (Fla. 2d DCA 1995)). If jurisdictional prongs two and three are not fulfilled, then we dismiss the petition rather than deny it. Id.

Analysis

Other Claims Specified in Request 13

The trial court denied, in part, and granted, in part, the Bank’s motion for a protective order as to these materials. The trial court narrowed Mr. Forbes’s request from five years to three years but did not otherwise narrow its breadth.

Discovery allows the parties to find potentially relevant evidence. The conduct of discovery is left to the trial court’s sound discretion. Fla. R. Civ. P. 1.280(b)(1); Friedman v. Heart Inst. of Port St. Lucie, Inc., 863 So. 2d 189, 193 (Fla. 2003). The order on review does not necessarily cause irreparable harm by allowing discovery of what the Bank claims to be irrelevant materials. See Am. Home Assurance Co. v. Vreeland, 973 So. 2d 668, 671 (Fla. 2d DCA 2008) (citingFirst Paradee, Ltd. v. Jones, 828 So. 2d 483, 485 (Fla. 2d DCA 2002)). Thus, certiorari jurisdiction is improper. We dismiss this portion of the Bank’s petition.

Manuals Specified in Request 10

The Bank argues that the trial court departed from the essential requirements of law by requiring the disclosure of trade secrets without providing adequate protective measures. An order requiring disclosure of trade secrets may cause irreparable injury that cannot be corrected on appeal; the disclosure lets the “cat out of the bag.” Id. Here, the trial court did not err. Its order sufficiently protects the Bank. See Allstate Ins. Co. v. Langston, 655 So. 2d 91, 94 (Fla. 1995). The Bank is concerned that experts or consultants retained by Mr. Forbes will misuse the materials. The order does not ignore that concern; only specified individuals may have access to the materials for the stated and limited purposes of assisting counsel in the litigation. No other use is contemplated. Further, the order requires that designated confidential materials, and any copies, be returned or destroyed at the end of the litigation.

Perhaps the order could have been clearer. However, we understand it to limit experts’ and consultants’ access to confidential information. Paragraph 4 of the order provides a blanket protection that documents may not be disclosed to “any person,” with enumerated exceptions. Importantly, the identification of people to whom access is granted is drawn narrowly to include only the parties and their employees, court employees, and outside consultants and experts. As for the consultants and experts, the order allows access only for a limited time and for the limited purposes of assisting counsel in this litigation.[1] The trial court did not depart from the essential requirements of law by entering the order proposed by Mr. Forbes’s counsel. As to this issue, the petition for certiorari is denied.

Dismissed in part; denied in part.

SILBERMAN and CRENSHAW, JJ., Concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

[1] We do not decide who would be liable should a consultant or expert violate the protective order. See, e.g.,Quinter v. Volkswagen of Am., 676 F.2d 969, 973 (3d Cir. 1982) (holding a nonparty liable for civil contempt where the nonparty had knowledge of the protective order.)

VICTORY IN KEY WEST: JUDGE DISMISSES FORECLOSURE FILED BY FLORIDA DEFAULT LAW GROUP FOR FAILURE TO COMPLY WITH DISCOVERY AND COURT ORDERS

DISMISSED!

May 20, 2010

Today, a Key West, Florida Circuit Court Judge dismissed a foreclosure action filed by Florida Default Law Group (FDLG), which was representing Bank of New York as the alleged “Trustee” of a Bear Stearns securitized mortgage loan trust. The borrower, who was represented by FDN’s Jeff Barnes, Esq., had served discovery on FDLG in late February, 2009. FDLG filed one of its form “open ended” Motions for Extension of Time to respond to the discovery (that being with no date certain for the response). FDLG failed to respond to Mr. Barnes’ good-faith request as to how much time FDLG needed to respond to the borrower’s discovery. The first “response” from FDLG came over 13 months later when FDLG objected to practically everything which Mr. Barnes asked for.

FDLG also failed to comply with the Court’s Pretrial Order, and had a history in the case of violating court orders and actually paid sanctions on prior Motion filed by Mr. Barnes. The Court dismissed the case and conditioned any re-filing on full compliance with Mr. Barnes’ discovery and the Court’s Orders.

Jeff Barnes, Esq., www/ForeclosureDefenseNationwide.com

Applications For Foreclosures By Mighty Banks Are Often Speckled With Mistakes

Applications For Foreclosures By Mighty Banks Are Often Speckled With Mistakes

by  Karen,   published:  Wednesday May 19, 2010

There is an adage fixed to the walls in front of the chambers of Judge Arthur M. Schack in Supreme Court Building at Brooklyn – “Be sure brain in gear before engaging mouth.” Inside foreclosures are piled up high enough to vie with the Alps. Each week the high and mighty banks of USA seek out his court to snatch the houses of New York residents who have failed in paying mortgage dues. Very often, said Schack, the applications of the banks are speckled with mistakes.

Judge Schack points out one motion coming from Deutsche Bank. The representative of the bank had claimed to be the vice president of two banks. His office was located in Kansas City but the notarization of the signature was in Texas. Moreover the bank was not the owner of the mortgage when it started with foreclosure proceedings against the borrower. Promptly the matter was dismissed.

Judge Schack said, “I’m a little guy in Brooklyn who doesn’t belong to their country clubs, what I can tell you? I won’t accept their comedy of errors.”

While there are hot debates and angst against bailing out banks and demands for more action to help homeowners, Judge Schack is sparring with the deadliest sword of all – the law. The law is being used to put them lenders in their places. The sympathies of the judge are clear for all to see.

In the previous two years 102 foreclosure places had come before him. He has tossed out from these 46 cases. His slicing decisions laced with allusions to the wealth of the bank presidents that are reminders of the legendary King Croesus, have won the respect of the legal fraternity across USA and especially in Florida, Ohio and California.

One or two bank officials have tried to stand up against him complaining that the judge has been depriving them of what is rightfully theirs. Recently HSBC made an appeal against a ruling complaining that the judge has set before others a “dangerous precedent” by behaving like “both judge and jury.” He has got rid of foreclosure cases even before getting any response from the house owners.

Together with few other state and federal judges, Justice Schack has held up a magnifying glass before the doings of the mortgage industry. During the past decade the bankers in heady haste handed out millions of mortgage loans with terms that were an admixture of good, bad and dangerously ugly.

LPS Using TARP Funds to Cover-Up Assignment of Mortgage

Consumer ID thefts or consumer identity thefts is one of the main crimes that cause financial as well as emotional anguish. The rubber-stamping of Assignments of Mortgage and the Double Dipping of foreclosure fees and cost expedite the foreclosure process and line the silk pockets of these attorneys, banks and LPS executives.

This is a copy of the September 14, 2009 e-mail from Adrian Lofton to Bradley Johnson, lead Attorney at Taylor, Day, Currie, Boyd and Johnson apprizing him of their TARP fund violations.

Brad, your firm has created a conflict of interest by representing these banks. In addition to the aforementioned, you are not legally entitled to accept TARP funds to represent these banks after your firm implicated them in these federal violations.
continue reading…

IN RE CERTIFICATION OF NEED FOR ADDITIONAL JUDGES, Fla: Supreme Court 2010

No. SC10-320.

Supreme Court of Florida.

February 25, 2010.

QUINCE, C.J.

Pursuant to our constitutional obligation to determine the state’s need for additional judges in Fiscal Year 2010-2011 and to certify “our findings and recommendations about that need” to the Legislature,[1] we hereby certify the need for additional judicial resources as follows.

Certification is “the sole mechanism established by our constitution for a systematic and uniform assessment of this need.” In re Certification of Need for Additional Judges, 889 So. 2d 734, 735 (Fla. 2004).

This Court acknowledges that Florida and our country remain in an economic recession. Like all sectors of our society, the judicial branch is coping with the impact these economic forces are having on the daily operations of our courts, which are faced with increased workloads, reduced resources, and ever-increasing demands on judges and staff. Together, these factors impede the proper administration of justice.For our trial courts, fewer resources and no new judgeships for the last three fiscal years have slowed case processing times and negatively impacted clearance rates. Justice in many instances is delayed.[2] Moreover, the mortgage foreclosure crisis continues unabated with a second wave of foreclosures forecast.[3] These foreclosures have implications for homeowners, lending institutions, neighborhoods, the courts, and Florida’s economy. Further, budget reductions and the resultant loss of supplemental judicial resources, such as case managers, magistrates, and staff attorneys, continue to impact the courts’ ability to respond effectively to the needs of children, families, the business sector, and the public. Although the central purpose of this opinion is to fulfill our constitutional obligation to discuss specifically the certification of judicial need, we must place the consideration of judicial need in a larger justice system context. Therefore, this Court first addresses recent developments in court system funding and the loss of non-judge resources before directly addressing the implications for judicial certification.

STATE COURTS REVENUE TRUST FUND

Because of the economic crisis and as part of its ongoing effort to seek stable funding for Florida’s State Courts System, the Supreme Court has worked with legislative leaders to identify a stable funding source for Florida’s courts. In response, during Special Session A 2009, the Legislature created the State Courts Revenue Trust Fund. The fund supports most court operations with the exception of some judicial salaries which remain general revenue funded. The primary revenue stream supplying the trust fund became effective July 1, 2009. The Supreme Court is grateful to the Legislature for the establishment of this fund, which we believe will help stabilize Florida’s court system. The creation of the State Courts Revenue Trust Fund is also consistent with the Seven Principles of Court Funding advanced through the State Courts System’s Funding Justice initiative.[4] Nevertheless, while the new trust fund appears to promise greater long-term stability, it has not yet impacted the budgetary reductions experienced by the judicial branch over the last two fiscal years. The budget reductions, coupled with no new judgeships for the last three fiscal years, have combined to create an environment of increased judicial workload, caseload backlog, and court delay. 

BUDGET REDUCTIONS

Since July 1, 2007, the State Courts System has experienced a ten percent budget reduction. These reductions have come from our operating budget, including expense dollars, contractual dollars, and the loss of positions throughout the state. Strict hiring and travel policies have also been in effect for the last two years. These restrictions were necessary to comply with overall reductions to our budget. Nonetheless, they come at a price. Court operations have been significantly hampered by the loss of positions that provide direct support to our judges. In order to comply with the legislative request to reduce its budget, Florida’s court system over the last three budget years has lost or eliminated 103.25 case managers, 23.75 magistrates and associated administrative staff, 38.5 law clerks, 18.5 due process positions (i.e., court reporters, court interpreters, and expert witnesses), and 106.5 positions from court administration, appellate clerks’ offices, and appellate marshals’ offices. Of the 290.5 total positions lost in the judicial branch, 249 trial court positions have been eliminated throughout the state. Also substantially reduced were contractual dollars used to hire Civil Traffic Infraction Hearing Officers (CTIHO). As a result, much work previously performed by CTIHOs was absorbed by our county court judges. 

LOST RESOURCES AND CASE PROCESSING TIMES

The budget reductions and loss of positions sustained by the State Courts System over the last two fiscal years continue to be felt in every judicial circuit. We cannot overstate the causal relationship between the loss of supplemental resources and the increases in case processing times. When judges must absorb the workload of case managers, staff attorneys, or hearing officers, case processing times inevitably worsen. The net result is court delay. Moreover, having judges perform the work of subordinate staff is not a prudent use of higher level judicial resources. Judicial time is best spent adjudicating cases, and the loss of supplemental resources has consequences for litigants across all case types. While Floridians continue to access their courts initially through filings, they are being forced to wait inordinate periods of time for final resolution of their cases while judges find it more and more difficult to advance their dockets and clear out backlogged matters.[5] 

CIRCUIT COURT IMPACT

Children and families are especially at risk when resources become scarce. In particular, the loss of case managers in our family divisions directly threatens the level of justice afforded to children and families. Case managers are acutely needed in matters involving custody, visitation, paternity, child support, dependency, delinquency, termination of parental rights, and domestic and repeat violence. Many families involved in such cases have limited means and represent themselves in court. Additionally, many of these families have multiple cases which require coordination to eliminate duplicate hearings and orders. Typically, our family law case managers shepherd cases through the court system by performing intake, screening, evaluation, monitoring, coordinating, scheduling, and referral activities. These activities enable cases to proceed smoothly and timely through the court process. When these positions are eliminated, these tasks fall on the presiding judge. This scenario creates case processing delays, non-referrals, or the minimization of judicial time spent helping children and families. In addition to losing our case management support, our court system has also lost magistrates and attendant administrative staff statewide during this period. Magistrates support the adjudicatory process in the trial courts by performing certain quasi-judicial functions that are routine, computational, or managerial in nature under the authority of the court. Frequently, they are assigned to family law divisions and assist judges by hearing matters related to paternity, dissolution, custody, child support and visitation. They frequently establish attorney fees and costs, submit recommended orders to a judge, and ensure the collection of fines. Their availability enables judges to focus their time on more contentious and complex issues requiring judicial expertise. This division of labor has proven to be both effective and economical. When magistrates are either reduced or eliminated from the case processing equation, judges must then absorb their work. This inevitably contributes to case processing delays. The loss of staff attorneys and law clerks similarly has affected judicial workload and impeded the movement of cases especially in post-conviction criminal cases. Law clerks provide basic legal research assistance to judges, including the preparation of legal memoranda and drafts of court orders. Their work enhances the adjudication of cases because they are able to identify and analyze relevant laws and cases before the court. Without this resource, a judge’s ability to process cases in a manner that ensures both quality and efficiency is diminished because the judge is retrieving materials and unable to delegate basic and routine legal research. Other factors contributing to circuit court workload include the mortgage foreclosure crisis previously mentioned which continues to overwhelm Florida’s court system. Although the dramatic increase in mortgage foreclosure filings is expected to abate at some future date and therefore may not be a part of the long-term sustained net need, there is evidence that a second wave of foreclosures is now entering the court system and that this workload issue will persist. Various media reports note that many of these new foreclosures are fueled by double digit unemployment, declining housing prices, and the lingering recession. Over a 36-month period (Fiscal Year 2005-2006 to Fiscal Year 2007-2008), real property/mortgage foreclosure filings increased by 396 percent in our trial courts. During the same time period, the clearance rate for real property/mortgage foreclosure cases decreased by 52 percent, from 94 percent in Fiscal Year 2005-2006 to 42 percent in Fiscal Year 2007-2008. According to Realty Trac,[6] Florida has the third highest rate of mortgage foreclosures in the country with one in every 158 housing units in foreclosure. Condominium foreclosures are contributing to the crisis. 

COUNTY COURT IMPACT

 As reflected in dropping clearance rates, no other resource has hindered the operations of county courts more than the loss of a substantial portion of the Civil Traffic Infraction Hearing Officer (CTIHO) monies. CTIHOs are members of The Florida Bar who contract with the courts to preside over civil traffic infraction hearings.[7] They are an economical and effective resource dedicated to the disposition of civil traffic infractions. Their availability enables county court judges to adjudicate county criminal and civil matters in a timely manner. In several circuits, the availability of CTIHOs has also enabled county court judges to assist with judicial workload in circuit court. Therefore, the loss of this resource is two-fold: (1) county judges now provide diminished assistance in circuit court, and (2) county judges must now spend a far greater portion of their time presiding over traffic matters. The cascading effect is less time spent assisting circuit court judges, less time focused on more complex county court criminal and civil matters, and more time spent on traffic cases. The net result is case delay and backlog in circuit and county court. Although this opinion is constitutionally required to discuss judicial need, this Court finds it important to advise the Legislature that the elimination of case managers, law clerks, magistrates, court reporters, and court interpreters, coupled with no new trial judges in three years, has long-term structural implications for the court system. If the Legislature is unable to provide new judgeships due to the economic crisis, we encourage it to consider all the more seriously restoring positions lost over the last two years, as has been requested in our annual legislative budget request. 

STATE ATTORNEY, PUBLIC DEFENDER, REGIONAL COUNSEL, AND CAPITAL COLLATERAL REPRESENTATIVE STAFFING

 This Court also remains concerned about the staffing levels of state attorney and public defender offices, the Offices of Regional Counsel, and the offices of the Capital Collateral Representatives. The need persists to reconcile the certification of new judgeships with sufficient staffing for these entities. This is a systemic issue and should be approached as such. We encourage the Legislature to consider the needs of the state attorneys, public defenders, Offices of Regional Counsel, and Capital Collateral Representatives if new judgeships are authorized for our criminal divisions, particularly in light of the staffing reductions they have experienced in recent years. 

TRIAL COURT CERTIFICATION

 For some time, this Court has used a case-weighting system based on accepted standards of measurement in determining the need for additional judges.[8] The case weighting system distinguishes different types of cases and assigns different amounts of time that must be spent on cases of each type, producing a total judicial need for each circuit. Additionally, we adjust for differing jury trial rates in each circuit and county and consider the actual number of judges requested by the chief judge in each circuit. The resulting certification is an objective statement of what the trial courts need to meet their workload. Over the last ten years, we have conducted a continuous evaluation of the certification process. As noted in last year’s opinion, we are now applying the use of sustained judicial need into our methodology. Sustained judicial need is the minimum of the calculated net need over a three-year period. Each year this three year “window” moves forward a year, considering the current year’s net need and the previous two years’ net need in the sustained need calculation. Any new judges received during the previous year’s session are factored into the current year’s net need.[9] From Fiscal Year 2006-2007 to Fiscal Year 2007-2008 total filings have increased by 21 percent in circuit court. Growth in civil filings by 85 percent is the main contributing factor to the statewide increase in circuit court. Real property and mortgage foreclosure case filings have more than doubled from the previous fiscal year, representing an increase of 171,426 filings. Product liability, condominium, and contract and indebtedness case filings have also risen considerably, by 267 percent, 117 percent, and 29 percent respectively. Substantial growth in filings in felony case types also contributed to an overall rise in circuit court filings from Fiscal Year 2006-2007 to Fiscal Year 2007-2008. The largest felony case type in terms of number of filings, property crime (including burglary, theft, worthless checks, and other felonies) increased by five percent. Additionally, capital murder and robbery case filings also rose by a considerable percentage, six and 15 percent respectively. County court filings experienced significant growth from Fiscal Year 2006-2007 to Fiscal Year 2007-2008 as well, with statewide filings increasing by five percent (excluding civil traffic infractions). Growth in civil filings was also the main contributing factor to the statewide increase in county court, with overall civil filings rising by 14 percent. Those cases involving small claims (up to $5,000), civil ($5,001 to $15,000), and evictions increased by 16 percent, 20 percent, and six percent, respectively. Further, the overall statewide circuit court clearance rate[10] from Fiscal Year 2006-2007 to Fiscal Year 2007-2008 has decreased by ten percent. Clearance rates in all divisions dropped in Fiscal Year 2007-2008, with the lone exception of the circuit criminal division. The chief judges of the trial courts are ensuring that all due process (e.g., speedy trials) and other constitutional requirements related to felony proceedings are being met. This often requires the redeployment of judicial resources from other court divisions. The circuit civil division experienced a significant clearance rate decline of nineteen percent, statewide. Similarly, the county court clearance rate decreased by four percent with the county civil division declining by five percent. The sustained impact of the mortgage foreclosure crisis is even further compromising the clearance rates in circuit civil divisions for all circuits in Florida. In many jurisdictions, circuit civil judges cannot keep pace with the volume. As a result, homeowners and lending institutions are subject to increasingly long delays for resolution to their cases.[11] In view of the foregoing considerations, this Court certifies the need for 37 new circuit court judges for Fiscal Year 2010-2011, distributed as follows: 

1. Five additional circuit court judges each for the First and Fifth circuits;

2. Three additional circuit court judges each for the Seventh, Nineteenth, and Twentieth circuits;

3. Two additional circuit court judges each for the Fourth, Sixth, Ninth, Tenth, Fourteenth, and Fifteenth circuits; and

4. One additional circuit court judge each for the Second, Eighth, Eleventh, Twelfth, Thirteenth, and Eighteenth circuits.

Further, we certify the need for 53 new county court judges for Fiscal Year 2010-2011, as follows: 

1. Eight additional county court judges for Duval County;

2. Six additional county court judges each for Miami-Dade and Broward counties;

3. Five additional county court judges for Palm Beach County;

4. Three additional county court judges for Hillsborough County;

5. Two additional county court judges each for Pinellas, Volusia, Orange, Polk, and Lee counties; and

6. One additional county court judge each for Okaloosa, Columbia, Citrus, Lake, Marion, Alachua, Osceola, Highlands, Manatee, Sarasota, Bay, Brevard, Seminole, St. Lucie, and Collier counties.

In addition to the judges certified above, we also have reviewed the following requests, which we deny for the following reasons. We have specifically reviewed the requests from chief judges to certify three circuit court judges in the Ninth Judicial Circuit and Eleventh Judicial Circuit and note that the sustained judicial need is less than the judgeships requested.[12] Accordingly, we deny those requests. We have also reviewed the chief judge’s requests for an additional county court judge for Pasco County. We have determined that in the absence of special circumstances, we must also deny this request. We emphasize that in addition to mathematical calculations, our staff performs extensive analysis of each circuit’s request in order to analyze the availability of supplemental resources and any special circumstances justifying an exception. 

DISTRICT COURTS OF APPEAL

Like the trial courts, the district courts have also experienced the loss of supplemental support staff due to the economic crisis. During Fiscal Year 2008-2009 a total of 25.5 FTE were lost due to reductions in the district courts’ collective budget. As with the circuit courts, the loss of staff attorneys and law clerks in the district courts has affected judicial workload and impeded the movement of cases. Staff attorneys provide legal research assistance, prepare legal memoranda, and assist in drafting opinions. The absence of staff attorneys and other court support staff that were lost has contributed to more lengthy case processing times and diminished clearance rates in the district courts. Under the weighted caseload per judge threshold set forth in rule 2.240(b)(2)(B), Florida Rules of Judicial Administration, “[t]he court will presume that there is a need for an additional appellate court judgeship in any district for which a request is made and where the relative weight of the cases disposed on the merits per judge would have exceeded 280 after application of the proposed additional judge(s).”[13] Only the Second District requested a judgeship, citing numerous workload factors including increased filings, decreasing clearance rates, post-conviction appeals, reduced staffing complements, and limited judicial availability. Although qualified to receive a judgeship last year, they did not request one, citing the economic climate within the state. While we are sympathetic to the workload in the Second District, using our certification methodology, they do not currently qualify for an additional judgeship after the methodology is applied. Therefore, their request is denied. 

DISTRICT COURTS OF APPEAL CERTIFICATION

In keeping with our policy of not requesting judgeships unless qualified and requested by the chief judge of a district court, we do not certify the need for any additional district court judges.  

CONCLUSION

Florida’s court system remains under duress. The state and national recession of the last two years and the resulting budget reductions for the courts are taking a sustained toll on Florida’s judges, court staff, and most importantly those who are accessing our courts. Case filings are up and clearance rates are down. Judicial dockets are full, scheduling is problematic, and case processing times are delayed. Florida’s court system has now gone three years without the authorization of any new judgeships despite a demonstrated and sustained need. The absence of new judgeships is now being felt by all sectors of our society who seek justice through the court system. We submit this opinion recognizing that it is difficult for the Legislature to fund the many competing critical issues confronting our state given the fiscal crisis the state is enduring. If funds become available, we encourage the Legislature to authorize those judgeships certified in our circuit and county courts. Additionally, while we have identified our judicial need in this opinion, we are equally concerned with the allocation of adequate court support staff and supplemental resources in the statutorily defined court elements that will enable the courts to respond effectively to the needs of children, families, the business sector, and the public. Without these court support staff and supplemental resources, the administration of justice is undermined. It is so ordered. PARIENTE, LEWIS, CANADY, POLSTON, LABARGA, and PERRY, JJ., concur. [1] Article V, section 9 of the Florida Constitution provides in pertinent part: Determination of number of judges.—The supreme court shall establish by rule uniform criteria for the determination of the need for additional judges except supreme court justices, the necessity for decreasing the number of judges and for increasing, decreasing or redefining appellate districts and judicial circuits. If the supreme court finds that a need exists for increasing or decreasing the number of judges or increasing, decreasing or redefining appellate districts and judicial circuits, it shall, prior to the next regular session of the legislature, certify to the legislature its findings and recommendations concerning such need.  [2] See Office of the State Courts Administrator, Clearance Rate Dashboard, Quarter Ending September 30, 2009 (Data as of November 5, 2009), http://www.flcourts.org/gen_public/stats/bin/ClearanceRateDashboard.pdf. [3] See Mortgage Bankers Ass’n, Delinquencies Continue to Climb in Latest MBA National Delinquency Survey, Nov. 19, 2009, http://www.mbaa.org/NewsandMedia/PressCenter/71112.htm; Seeking Alpha.com, Seasonal Bump in Case-Shiller Home Price Index Abates, Nov. 29, 2009, http://seekingalpha.com/article/175233-seasonal-bump-in-case-shiller-home-price-index-abates; Realty Trac, Job Losses Foreshadow More Foreclosures, Risk, http://www.realtytrac.com/contentmanagement/realtytraclibrary.aspx?channelid=8&accnt=0&itemid=7727 (last visited February 23, 2010). [4] See Florida State Courts, Funding Justice, http://www.flcourts.org/gen_public/funding/index.shml (last visited Feb. 23, 2010). [5] A 2008 study by the Washington Economics Group, Inc., has estimated delay in case processing mortgage foreclosure cases costs Florida’s economy $17 billion a year. Washington Economics Group, The Economic Impacts of Inadequate Funding for Florida’s Courts (2008). [6] Realty Trac is an online realtor website that tracks mortgage foreclosures by state and may be found at http://www.realtytrac.com. [7] In Fiscal Year 2007-2008, Civil Traffic Infraction Hearing Officers presided over approximately 489,162 cases in Florida. [8] This system was developed in response to the proviso language of the 1998 General Appropriations Act, in which the Legislature directed that the judicial branch employ a certification methodology that relies on case weights and calculations of available judge time to determine the need for additional trial court judges. See Ch. 98-422, § 7, at 3963, Laws of Fla. Pursuant to this direction, the judicial branch undertook an extensive project to design and implement a weighted caseload system, assisted by the National Center for State Courts and endorsed by the Office of Program Policy Analysis and Government Accountability. [9] In re Certification of Need for Additional Judges, 3 So. 3d 1177, 1181-82 (Fla. 2009)[10] The “clearance rate” is a calculation of the number of cases disposed of divided by the number of cases filed in the same year. The clearance rate has a reasonable ease of calculation, is a useful measure of the responsiveness of a court to the demand for services, and is nationally recognized as a measure of court performance. [11] See Florida Supreme Court Task Force on Residential Mortgage Foreclosure Cases, Final Report and Recommendations on Residential Mortgage Foreclosure Cases (2009), available at http://www.floridasupremecourt.org/pub_info/foreclosure.shtml. [12] Total judicial need is the total number of judges required to complete all expected workload. Net judicial need is the difference between the total judicial need and the number of existing judges. Sustained net need is defined as constant need over time. [13] The number established in the rule, 280, does not represent the filings per judge but is a weighted threshold calculated according to the process described in the DCA Workload Report issued in 2005 by the Commission on District Court of Appeal Performance and Accountability. See Supreme Court of Florida Commission on District Court of Appeal Performance and Accountability, DCA Workload Report to the Supreme Court (2005), available at http://www.flcourts.org/gen_public/court-services/bin/2005DCAWorkloadReport.pdf.

What can be done about the backlog of foreclosure cases in Palm Beach County (and other Florida counties)? By Lynn Szymoniack ESQ.

BACKLOG

1. Dismiss all cases filed after February 11, 2010, that do not include a verification in accordance with the Florida Supreme Court revised  rules of Civil Procedure.   The big foreclosure firms, particularly the Law Offices of David Stern, are choosing to ignore the rule requiring verifications.  All parties should be required to follow the rules.

2. Dismiss all of the cases where the plaintiff is a bank “as Trustee” but the name of the trust is not disclosed.  Failure to identify the actual trust is one of the newest strategies of the foreclosure mills.  The trust, not the trustee, is the real party in interest.

3. Dismiss all of the cases where the complaint is not signed by the attorney whose name appears on the pleading.  The big foreclosure firms in thousands of cases have someone other than the attorney on the pleading sign “for” the attorney who drafted the pleading.  This is done so that both attorneys can deny responsibility.

4. Dismiss all of the cases that include these boilerplate allegations by the bank or trust: “We own the note. We had possession of the note. We lost the note.”  These allegations appear in over 20,000 cases.  By now it is apparent this is a ruse – no one actually lost 20,000 mortgages and notes. Frauds upon the courts should not be tolerated.

5. Dismiss all of the cases that include a Mortgage Assignment that was signed by an employee of the foreclosure mill law firm signing as a MERS officer.  This would include thousands of cases where Cheryl Samons and Beth Cerni, administrative employees for David Stern, signed as a representative of the GRANTOR when the firm was actually working for the GRANTEE.  This would also include cases where Patricia Arango and Caryn Graham, two associates working for The Law Offices of Marshall C. Watson, signed as MERS officers.  This would also include all cases where Christopher Bossman, an administrative employee in the Daniel Consuegra fiirm, signed as a MERS officer.  This would also include all cases where officers of Florida Default Law Group signed as MERS officers. In all of these cases, no disclosure was made to the Court or to the homeowner/defendants that the Assignments were prepared by law firm employees with no knowledge of the truth of the matters asserted therein.

6. Dismiss all of the cases where a Mortgage Assignment was signed by Jeffrey Stephan of GMAC (notarized in Montgomery County, PA).  Stephan has already admitted in sworn testimony that a notary was NOT present when he signed mortgage assignments, even though the Assignments contained a contrary statement.

7. Dismiss all of the cases where the documents were prepared by employees of Lender Processing Services since this company has already admitted in its Annual Statement with the SEC that investigations, internal and otherwise, revealed problems with the documents that were so significant that the company implemented a “remediation” program (and in January, 2010, laid off most of its employees in Alpharetta, GA. Until this company discloses which documents were determined to be defective, and what corrective actions were taken, no documents from LPS submitted to establish ownership and standing (notarized in Fulton County, GA; Duval County, FL and Dakota County, MN) should be relied upon by the Courts.

8. Dismiss all cases where a Mortgage Assignment has been made by American Brokers Conduit, American Home Mortgage Acceptance or American Home Mortgage Company, or nominees or mortgage servicing companies working for these American Home companies, after August 6, 2007, the day these companies filed for bankruptcy.  The bankruptcy court did not authorizing these actions.

If Palm Beach County judges looked critically at the documents submitted by the foreclosure mills,  they would reach the same conclusion as judges in other Florida Circuits – that the documents submitted by the foreclosure mills are worthless and the attorneys submitting these documents deserve strict sanctions.

LYNN E. SZYMONIAK ESQ.