Foreclosure ()

Administrative orders issued by foreclosure judges in Miami-Dade and Palm Beach counties are tipping the scales of justice in favor of banks, a leading homeowner attorney claims.

Appeals have been filed in the Third District Court of Appeal, a Florida Supreme Court advisory committee has been asked to review the orders, and a petition is being prepared for the Supreme Court.

This is in reaction to what is described in Angelo Frau and Yamileth Frau v. JPMorgan Chase, a pending Third District appeal, as a “newly minted waiver” that allegedly exceeds the trial court’s authority and has no basis in the Rules of Civil Procedure.

JPMorgan filed its response Tuesday. Bank attorney W. Aaron Daniel of Kula & Samson in North Miami maintains the court should dismiss the appeal for lack of jurisdiction because while the Fraus ask the court to reverse an order on service, its parallel intent is to attack the Miami-Dade administrative order.

Daniel argues that only the Florida Supreme Court has jurisdiction to consider that issue under its “all writs” power.

“It’s interesting how quickly (JPMorgan) came to the defense of the administrative order. I think that speaks volumes to how lopsided its application is against homeowners,” said Thomas Ice of Ice Legal in Royal Palm Beach.

Attorneys from his firm filed a second almost simultaneous appeal in the Third District on the same issue. In Barnsdale Holdings v. Deutsche Bank National Trust, Miami-Dade Circuit Judge Darrin Gayles denied a motion to quash, deeming it “abandoned in accordance with the provisions of Administrative Memorandum 12-E.”


Normally, a lawsuit doesn’t get to trial or dismissed until both sides have had a full airing of pending issues. Absent that, the case is considered not “at issue,” or unripe for trial or a hearing on a motion to dismiss.

In the past two years, foreclosure judges have been pushing ahead with cases that homeowner attorneys insist are not at issue to clear a backlog of old foreclosure cases, some going back five or six years.

However, appellate courts have sent some of these cases back. On Wednesday, the Third District reversed Mattie Mae Tucker v. Bank of New York Mellon. The opinion by Judge Edwin Scales noted Tucker had a counterclaim to quiet title. The bank never filed an answer “or other responsive pleading” to Tucker’s counterclaim, he said. Despite this, the trial court set the case for trial, denied Tucker’s motion to stop the trial, conducted a nonjury trial and entered judgment in the bank’s favor.

“The case was not at issue and therefore could not have been noticed for trial until 20 days after (JPMorgan) filed its answer,” Scales said. “As we have previously held, failure to adhere strictly to the mandates of Rule 1.440 is reversible error.”

Trial courts have realized dismissing cases not at issue isn’t working and turned to treating any motion that would further delay a final judgment as the movant’s de facto “abandonment” of that motion, Ice said. Since homeowners file the vast majority of motions, it is their action that triggers orders that throw out their defenses. And all lenders have to do is sit back and let the courts rule for them.

The concept of motion abandonment originated with Miami-Dade Circuit Judge Jennifer Bailey, the civil administrative judge, Ice said. He cited her Oct. 17, 2012, email to the civil division urging fellow judges to “take advantage of the new administrative order that advises that we may treat any motion to dismiss which has never been set for hearing as abandoned.” She did not respond by deadline to a call seeking comment.

Defenses Stripeed

By law, a process server must enter on the first page of a lawsuit the date and time of service as well as the server’s identification number and initials. This was not done in the Fraus’ case, and the bank never disputed that.

“Had the trial court considered the merits of the Fraus’ motion, it would have had no choice but to quash the service of process,” Ice stated in the brief.

Instead, the court on its own set the case for trial and relied on the bank to inform the Fraus. The bank didn’t inform the Fraus until three months later and only 15 days before the trial date.

The Fraus argued notice of trial was late and the case was not at issue. On the day scheduled for trial, the court granted a motion to vacate the trial order but then found the Fraus’ “abandoned” their motion to quash service, stripping them of their main defense.

Ice outlines five “impermissible” wrongs the administrative order causes:

• It creates a “newly minted” waiver rule that imposes an amorphous “new time limit” other than the statutorily required responses of 20 days after a complaint and 10 days after a denial.

• It shifts the burden of prosecution, which the plaintiff bears under the Rules of Civil Procedure. “Because the candidly stated purpose of the new ‘abandonment’ rule is to force cases to be at issue so they may be immediately tried, it eviscerates the existing lack of prosecution rule, ensuring that no foreclosure plaintiff can suffer dismissal for failure to prosecute.”

• It deviates from the rule that pre-answer motions “shall be heard and determined” before trial by allowing courts to dispose of motions without a hearing by deeming them “abandoned.”

• It deviates from the rule establishing status conferences as the proper method for dealing with languishing cases. The administrative order creates a shortcut that invites judges to dispose of motions “without spending the time” to read them or hear argument.

• Deeming motions “abandoned” when there was no such intent “falsely clothes these decisions with the appearance of a waiver, which could prevent appellate review.”

60-day Limit

Foreclosure defense attorneys with cases in Palm Beach are finding the situation more severe. While Miami-Dade judges have some discretion, a March 13 administrative order issued by Chief Palm Beach Circuit Judge Jeffrey Colbath imposes a hard deadline and mandatory resolution.

Ice wrote Chief First District Judge Robert T. Benton II, chair of the Supreme Court Local Rules Advisory Committee, on Monday that the order states any motions “which prevent a matter from being at issue … and which have not been heard by the court within 60 days from filing will be considered by the court as having been abandoned by the moving party and such motion will be deemed denied with or without a court order.”

In his order, Colbath supported the instruction by noting a rule of judicial administration recommends nonjury civil cases be disposed of within 12 months. The abandonment device rests on an argument that it isn’t enough for attorneys to file motions. They also must be timely set for hearings.

Colbath cites in defense of his order a Second District 1996 case, Department of Revenue v. Keidaisch.

However, Ice told the advisory committee the Second District found the petitioner may have abandoned the requested relief, but the important distinction in Keidaisch was the motion was never noticed.

“This case, therefore, does not provide the chief judge with the authority to create an abandonment rule in the circuit,” Ice told Benton.

Ice asked the committee to decide whether the order improperly encroaches on the Supreme Court’s authority.

At Ice’s request, former Florida State University president Sandy D’Alemberte has agreed to collaborate on challenges to the orders in the district courts of appeal.

Former Supreme Court clerk of the court Tom Hall, now with the Mills Firm in Tallahassee, is assisting Ice with the advisory committee.