Kenneth Rijock

Kenneth Rijock

Tuesday, March 1, 2016

MIAMI JUDGE IGNORES THE LAW IN COMMERCIAL FORECLOSURE



We have heard much about financial institution misconduct, negligence, and outright fraud, in the torrent of foreclosure cases arising out of the previous financial crisis. Banks that have purchased loans, which later go into default, bring foreclosure actions, notwithstanding legal defects in their right to file such cases.

The list of egregious actions taken, by bank staff members, and even senior management, is long and damning. Unfortunately, in many cases, the judiciary routinely enter final judgments, when such decisions run counter to the law, over the vocal protests of defense lawyers.

This week, in a mortgage foreclosure case in Miami-Dade County*, a Circuit Judge entered a summary judgment, against defendants in a commercial case, involving a shopping center. This was noteworthy, for two reasons:

(1) The Court granted the bank's motion for summary judgment, a day before the scheduled two-hour specially set hearing was to be held, without holding the hearing, ruling that he had the discretion, pursuant to existing case law, to do so. That is incorrect; case law in the appellate District (3rd) that includes Miami-Dade County, as well as two other  districts (4th & 5th) states that the parties shall have the right to conduct oral argument of a summary judgment motion, and that the Court cannot ignore that right. Either the Court failed to read all the relevant case law, or we are dealing with judicial arrogance, in flouting the rule of law.

(2) For non-lawyers reading this story, the Court can only grant a summary judgment, which obviates the need for a trial, if the movant shows that the law is well established, and the facts are not in dispute. In this case, the plaintiff bank appears not to have held title to the mortgage when it filed the suit, and this defect was never properly cured. The bank therefore had no standing, the right to bring the action. Additionally, there are several other contested issues of fact, including a dispute over the affidavits filed on the bank's behalf. A document was backdated several years, and then recorded, one of many instances of bank misconduct; issues like these generally defeat any summary judgment motion.

We understand that a motion for reconsideration, or rehearing, has been filed, but unless the Court corrects its obvious error, the defendants' subsequent appeal will surely succeed. This is but one case demonstrating the lack of judicial neutrality in the massive number of foreclosure cases now pending across the United States. One can only guess at how many foreclosures improperly went to a final judgment, because the defendants were not represented by counsel, or by attorney sharps enough to see the flaws in the plaintiffs' cases; Justice has not been served, in far too many foreclosure cases.

Miami-Dade County Courthouse
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*US Bank, N.A. Vs. Jorge Ramos, et al, Case No.: 09-53179 CA13 ( Miami-Dade Cir. Ct.).

1 comment:

  1. The banks are always finding ways to continue to cheat the people. And from what I'm reading it looks like the banks had the judge in their pockets! SAD, SAD... That a US JUDGE can be bought by the banks.

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