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Asymmetry: Aggressively Pushing Open Cases Through the System

News   •   Aug 07, 2013 14:04 EDT

The original article was written by Adolfo Pesquera, Daily Business Review, Aug. 5, 2013 with quotes from Roy Oppenheim republished in part and slightly modified  for  the South Florida Law Blog.

Miami-Dade circuit judges have been disposing of residential foreclosure cases at more than twice the rate of Broward judges, but all Florida circuits are following a game plan to rid themselves of their years-old backlogs by 2016.

Miami-Dade, which had South Florida's largest backlog, whittled pending cases by 28 percent to 37,611 on May 31 from 52,211 on June 30, 2012.  Within the same time period, Broward lagged, cutting its load 7 percent to 41,895 from 45,118 cases.  Palm Beach is down 13 percent to 28,632 from 32,977 cases in the same period.

"In Dade, the court will set hearings on their own for a trial even if no party does anything.  They also dismiss cases if there is no activity in a year," said foreclosure defense attorney Roy Oppenheim of Oppenheim Law in Weston.  “In Broward, (judges) are not dismissing cases on their own for lack of prosecution.  They are setting trials rapidly but only when you come before the court.  If you come before court for anything, they will hit you with a trial setting.”

How trials are set is the major difference between Miami-Dade and other counties, but there is a significant difference in the use of judges.  Miami-Dade spreads the foreclosure docket among all civil circuit judges.  Broward and Palm Beach dedicate certain courts to handling foreclosure cases.

Miami-Dade Circuit Judge Jennifer Bailey, who administers the foreclosure docket, considers its attack on the backlog very successful.

The circuit learned from experience that nothing happened when judges left the resolution of foreclosure cases up to the lenders and homeowners.

Often, the homeowner’s tactic was to delay an adverse final judgment as long as possible.  And banks, reluctant to take on the liability of property maintenance, let sleeping dogs lie.

With courts pushing cases to trial ready or not, Oppenheim described the results as asymmetrical, with both sides suffering losses they might not have otherwise.

HASTE = MISTAKE

A reversal July 31 and two others on July 3 by the Third District Court of Appeal highlight how rushed foreclosure trials have haunted the foreclosure process.

Bailey considered the reversals not at all unusual given the huge number of disposed cases.

“If we close 40,000 cases a year, we certainly don’t expect to be perfect,” she said.  “Is reversal higher than in a typical year?  I have nothing to indicate this.  I do know the circuit judges are trying to do a good job.  We are consistently saying it’s more important to do it right than to do it fast.”

Oppenheim disagrees, noting the stark contrast between the heavily populated counties and the less populated counties such as Indian River, where “we sometimes see the judges taking these cases more seriously.”

He said it is not unheard of for Broward judges to conduct “three-minute trials, a notion that is an oxymoron.”

“Does a judge have an inherent conflict when he or she is more concerned with the docket than with dispensing justice?  These two concepts are at loggerheads.  They do not necessarily rest well with one another,” Oppenheim said.

LENDER BIAS

In this quest to drain the dockets, courts have made life considerably more challenging for defense attorneys.  Block trials in Palm Beach County, for example, are set in favor of the plaintiff lender so a bank needs only one lawyer in the courtroom to dispose of cases being heard at 15-minute intervals.

Since Palm Beach County circuit went to block trials in the spring, defense attorneys have been running from courtroom to courtroom to cover simultaneous hearings.

In an effort to expedite the trial docket, Palm Beach Circuit Judge Diana Lewis believes, “If you can’t do [the trial] within an hour, you’re not a trial attorney.”

Real estate attorney and foreclosure defense attorney, Roy Oppenheim left Wall Street for Main Street, founding Oppenheim Law along with his wife Ellen in 1989 in Fort Lauderdale, Florida, and is vice president of Weston Title and creator of the South Florida Law Blog, named the best business and technology blog by the South Florida Sun-Sentinel. Follow Roy on Twitter at @OpLaw or like Oppenheim Law on Facebook.


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