The following article has been republished from The Daily Business Review for the South Florida Law Blog.
- Palm Beach County puts old foreclosure cases on fast track and by today, lenders who filed foreclosures lawsuits in 2007 must submit a status report on each case. Status reports must be turned in on 2008 cases by March 15 and on 2009 cases by March 29.
This is all a precursor to setting trials in hopes of disposing of as many of the 9,000 cases predating 2010 as possible.
Chief Palm Beach Circuit Judge Peter Blanc said more than 30 percent of the foreclosure cases are more than 3 years old. Judicial administrative rules suggest nonjury cases should get resolved within a year, he said.
"Those are way past due," Blanc said.
"What we will try to do is set cases in blocks. What I anticipate is the setting of a group of cases at the same time for trial. When they come in, I would anticipate many will be in a default situation," Blanc said. Uncontested cases will come to a quick end.
Palm Beach's attempt to sweep old foreclosure cases off the books follows similar efforts in Miami-Dade and Broward, said Weston foreclosure defense attorney Roy Oppenheim.
"Dade started first. Then Broward, although it never issued a formal order. It's like a moving wave," Oppenheim said,
Cases have lingered for many reasons. Banks that filed cases either lack documentation to get judgments in contested cases or are reluctant to put the homes on their books as nonperforming assets that they then must maintain. Homeowners unable to work out forbearance agreements or loan modifications don't press for resolution to keep a roof over their heads.
STATE OF DORMANCY
As unlikely as it sounds, even after years in court, many cases show minimal progress.
Foreclosure defense attorney Thomas Ice of Ice Legal in Royal Palm Beach is a critic of the Miami-Dade accelerated docket because it does not distinguish between cases that are ready for trial and those where no response has been filed after the original complaint.
Ice nicknamed the Miami-Dade system the "Bailey Method" after Circuit Judge Jennifer Bailey, who oversees the civil division.
"Either parties have not been defaulted by the court or they haven't answered," Ice said. "That's not a gray issue. It's black and white. When you go to trial on a case that's not at issue, the judgment is void."
The Miami-Dade method takes a gamble that most defendants forced to trial prematurely will not appeal, Ice said.
Palm Beach, however, is making a distinction between cases that are ready for trial, or at issue, and those that aren't.
"If a case goes to trial and it's not at issue, I would assume it's coming back on appeal," Blanc said. "We have to be flexible until we know what we're dealing with because there's been no activity on many of these cases."
Palm Beach has dedicated foreclosures to one circuit judge and a small pool of retired senior judges. That's changing.
Blanc asked all civil judges to specify available four-day blocks to take chunks of the foreclosure docket.
He is copying Miami-Dade in one respect. Only Blanc or his designee will allow continuances when there are no pending motions, and the moving party must show good cause to get one.
"Bailey took away the judge's right to determine continuances, and they're the ones whose name is going to be on the appeal," Ice said.
Oppenheim said early indications are that Palm Beach will execute its accelerated docket with more finesse than Miami-Dade or Broward.
"My only caveat to that is implementation," he said.
Ice argues over the premise that the judiciary should even try to rush things. He said comments from judges indicate they intend to try cases in as little as 15 minutes. Ice maintains any contested case should take at least a day.
Blanc insists there won't be any ironclad rules about trial length.
"If a trial is truly contested, we may not be able to try that case in an hour or two. We'll have to try to figure that out as we go. I think the best way to describe this is as a work in progress," he said.
In any case, plaintiffs and defense attorneys better be prepared for some football-style no-huddle offense.
"As long as the cases are on the court docket, we're obligated to resolve them," said Palm Beach Circuit Judge Jeffrey Colbath, who will take over as chief judge in July. "It's not a benign thing to leave a case inactive. That taxes the court's resources. We owe it to the citizens to resolve the cases."
Oppenheim predicts lenders will benefit in 95 percent of cases, but it will all come down to who's prepared for trial on the fateful day.
"This is going to be the new normal," he said. "You will get asymmetrical results. It's like roulette."