Fort Lauderdale attorney Evan M. Rosen is criticizing a state appellate court — via news release — in a move that seems to flirt with breaking Florida Bar rules against impugning the integrity of judges.
Frustrated over the adjudication of foreclosure cases, Rosen issued a news release Thursday asking, “What’s wrong with Florida’s Third District Court of Appeal?”
“Sometimes things just need to be said,” Rosen told the Daily Business Review. “This is a story that needs to be told.”
Rosen, a Florida attorney since 1997, issued a 15-page document complete with a statistical analysis of foreclosure opinions from Florida’s five district courts of appeal. It shows Miami’s Third DCA outpaces its counterparts in ruling against homeowners sued by their lenders.
He said he’s spent years compiling appellate rulings from across Florida to create a database of foreclosure-related dispositions from 2010 through Thursday.
“Statistics reveal what experienced Florida foreclosure attorneys already know,” Rosen wrote. “The Third District Court of Appeal has an issue properly adjudicating foreclosure cases.”
Defense attorneys for homeowners have long whispered about what they see as bias among Third DCA jurists against homeowners in foreclosure, but Rosen is the first to call public attention to the Miami court as an outlier in foreclosure appeals.
Ethics lawyers cited concerns about potential repercussions in appearances before the court in declining to speak on the record about Rosen’s criticisms.
“He’s onto something,” said an attorney who requested anonymity because of pending cases before the Third DCA. “There is no question that the Third District is pro-business and couldn’t care less about homeowners. The problem is yes, you have ethics rules, but you also have First Amendment rights. This area of the law is the grayest. Lawyers want to make a living and not anger the judiciary. Most lawyers hold their tongue … so it’s a lot of self-regulation.”
Last year, Davie attorney Michael Wrubel performed a numeric tally that bolstered criticism by defense lawyers, who claimed the court abuses per curiam affirmances, or PCAs, to avoid explaining their rulings on lender standing. He found the appellate court, which hears appeals from Miami-Dade and Monroe counties, issued PCAs in about 81 percent of the foreclosure cases heard in 2015.
PCAs affirm trial court orders when the legal issues are so well-settled that a fresh discussion would be fruitless. But some attorneys say the Third DCA misuses the tool to strategically sidestep writing opinions that could provide grounds for rehearing. Instead, they say it uses the decisions to wipe out options for further review and avoid conflicts with other district courts.
Rosen said his data compelled him to speak. He said his chart tabulates every Florida appellate opinion since 2010 when the first wave of appeals from the housing collapse hit court dockets. Most cases focuses on legal standing — centered on questions about a lender’s entitlement to bring suit — over the course of the foreclosure crisis.
He found that of 120 opinions addressing lender standing before the Fourth DCA, the only other South Florida court that ruled for homeowners 73 percent of the time. On the same issue, the Second DCA found for homeowners 84 percent of the time, the First DCA 83 percent and the Fifth DCA 72 percent.
The Third DCA ruled for homeowners twice, or only 13 percent of its foreclosure cases involving legal standing, according to Rosen’s count.
Some lawyers question the reliance on data to challenge the appellate court’s rulings.
One unlikely defender is outspoken foreclosure defense attorney Thomas Ice of Ice legal in Royal Palm Beach. By his count, the Fourth DCA issued PCAs in about three-quarters of its foreclosure cases regardless of whether standing was the central issue. That puts its PCA rate near the Third’s, but its heavier caseload translates to a higher volume of opinions, leading observers to falsely conclude the Fourth is more borrower-friendly, Ice said.
“If you compare them based on the number of cases, it’s about the same,” he said.
The Third DCA did not respond to inquiries for comment.
On the ethics front, legal precedent from the Florida Supreme Court clarifies that Rule 4-8.2 governs discipline for lawyers who level “false” or “reckless” criticism at the judiciary and other court officials.
“The standard to be applied is whether the attorney had an objectively reasonable factual basis for making the statements,” justices stated in a 2001 disciplinary case before the high court.
Rosen isn’t worried even though he has a pending case before the Third DCA and is involved in multiple Miami-Dade Circuit Court foreclosure suits.
“The truth is an absolute defense. This is still the United States of America. Freedom of speech is still sacrosanct,” he said. “Who better to know what is going on with the courts than the lawyers that appear before them regularly? I’m convinced there’s something that’s different there than every place else, which leads to these results. And something needed to be said.”