Do Catholic Knights Follow and Apply Their Own Commandments as Federal Judges in Judicial Orders and Opinions?
The shame for new law clerks today is they are entering a very corrupt judiciary who delegate a substantial amount of case opinion writing to these clerks. These judges train them in the art of how to write a manipulated opinion for the judges’ preferred party, not necessarily the party who should obtain judgment in their favor.
Thieves, Drunks and Scoundrels. Florida Bar’s Lyin’ Lawyers (August 2021)
LIF Editorial: Drug Smugglin’ Coast Guard and Attorney Sentenced to Probation
Fla. Bar v. Dupee, 160 So. 3d 838 (Fla. 2015)
Catholic Law’s Judicial Clerkship Opinion Writing Conference
10 Federal Judges and 30 Rising Law Clerks Participate
MARCH 10, 2021 | REPUBLISHED BY LIT: MARCH 10, 2021
On Feb. 26-27, 2021, Catholic University’s Columbus School of Law hosted 30 rising law clerks from across the country who will be serving in the chambers of Federal Circuit Courts, Federal District Courts, and State Appellate Courts in the upcoming year. While many events have been affected by the pandemic, the conference provided a welcome opportunity for learning for those in attendance.
The two-day, virtual conference provided the conferees with an opportunity to learn the particulars of judicial opinion writing — a unique conference focus undertaken by the Law School to serve both bench and bar. The first day of the conference included instruction from Judge Kyle Duncan of the Fifth Circuit Court of Appeals, Judge Paul Matey of the Third Circuit Court of Appeals, Judge Chad Readler of the Sixth Circuit Court of Appeals, and Judge Lawrence VanDyke of the Ninth Circuit Court of Appeals, who reviewed opinions to illustrate what goes into the opinion-writing process and took questions from the clerks about their strategic choices.
On the second day, the clerks were divided into breakout sessions, in which Judge James Boasberg and Judge Dabney Friedrich of the U.S. District Court for the District of Columbia; Judge John Gallagher and Judge Joseph Leeson of the U.S. District Court for the E.D. Pennsylvania; Judge Steven C. Seeger of the U.S. District Court for the N.D. of Illinois; and Judge Edward Meyers of the U.S. Court of Federal Claims reviewed and critiqued draft opinions the clerks had written on a problem derived from Catholic Law’s past Seigenthaler-Sutherland Cup National First Amendment Moot Court Competition problem. This activity allowed the clerks to apply the skills they were learning and receive feedback. Conferees are all eligible for the CSL Prize in Judicial Clerkship Opinion Writing.
The conference ended with a panel discussion of current and former judicial clerks — Professor Joel Alicea, Will Haun ’12, Anika Smith ’20, and Jack Vivian ’17 — who took questions from the conferees about clerkship tenures in general.
The conference ended with a panel discussion of current and former judicial clerks — Professor Joel Alicea, Will Haun ’12, Anika Smith ’20, and Jack Vivian ’17 — who took questions from the conferees about clerkship tenures in general.
‘Not qualified’ rating and accusation from American Bar Association moves Trump nominee Lawrence VanDyke to tears
ORIGINALLY PUBLISHED: OCT 31, 2019 | REPUBLISHED BY LIT: MAR 10, 2021
A federal appeals court nominee broke down in tears during a Senate Judiciary Committee hearing Wednesday, reacting to a scathing letter against his confirmation by the American Bar Association after it conducted 60 interviews and concluded that he was “not qualified” for the judicial branch.
Lawrence J.C. VanDyke grew emotional, with his face turning red as he defended himself against the letter’s conclusions that he could not treat LGBTQ litigants fairly.
“I do not believe that,” VanDyke said. “It is a fundamental belief of mine that all people are created in the image of God,” adding, “they should all be treated with dignity and respect.”
The rare outburst comes as the ABA is under continued attack from conservatives who question its methodology and argue that the group that has rated potential nominees for decades is biased against conservatives. It also comes as the President and Senate Republicans have pushed through a record number of judicial nominees as Democrats have questioned their qualifications.
President Donald Trump nominated VanDyke, who currently serves as a deputy assistant attorney general for the Environment and Natural Resources Division at the Department of Justice, last month for the post on the 9th US Circuit Court of Appeals. The President has repeatedly attacked the liberal-leaning 9th Circuit for rulings that have blocked administration initiatives, especially on immigration.
The ABA on Tuesday night issued a blistering analysis of the nomination.
“Mr. VanDyke’s accomplishments are offset by the assessments of interviewees that Mr. VanDyke is arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice including procedural rules,” William C. Hubbard, chair of the ABA’s standing committee on the federal judiciary, wrote. “There was a theme that the nominee lacks humility, has an ‘entitlement’ temperament, does not have an open mind, and does not always have a commitment to being candid and truthful.”
So far, at least six of the President’s nominees have received a “not qualified” rating as the Trump administration and the Republican-led Senate has transformed the face of the judiciary by placing nearly 160 nominees on the federal bench including two Supreme Court nominees. But the letter triggered an angry backlash from supporters of the Harvard-educated lawyer who called it a hit job from a liberal-leaning group.
“The ABA is a liberal dark-money group, fronting for trial lawyers who donate millions of dollars to Democratic politicians,” said Mike Davis, who served as chief counsel for then-Judiciary Chairman Chuck Grassley and now runs the Article III project, a group that supports Trump’s nominees. Davis calls the ABA process “fatally flawed, as it is intentionally structured to couple liberal activists with a subjective, black-box process that oftentimes results in unfair hits on conservative judicial nominees.”
And Carrie Severino of the Judicial Crisis Network, which advocates for conservative nominees, charged that the lead evaluator of VanDyke, Montana attorney Marcia Davenport, previously contributed to Van Dyke’s opponent in a 2014 election for a seat on the Montana Supreme Court.
That criticism from this Congress has been muted of late, however, because Senate Judiciary Chairman Lindsey Graham, a South Carolina Republican, has praised the group’s role.
VanDyke is former solicitor general of both Montana and Nevada, but the ABA letter about his fitness for the federal bench was particularly harsh on his temperament. It notes that some interviewees raised concerns about whether VanDyke would be “fair to persons who are gay, lesbian or otherwise part of the LGBTQ community. “Mr VanDyke would not say affirmatively that he would be fair to any litigant before him, notably members of the LGBTQ community,” the letter said.
At the hearing, VanDyke said he was “disappointed, shocked and hurt” when he received the letter Tuesday night. He testified that he was “still processing” it and said he’d since learned that one of the ABA raters involved had donated to his opponent when he ran for a state judiciary race and ultimately lost. He said that during a three-hour meeting with the ABA as the group studied his record in connection with the nomination to federal court, he tried to respond to some of the negative comments lodged against him but the rater told him that she was in a “hurry” and that she wouldn’t let him fully respond.
Graham turned to another nominee, Patrick J. Bumatay, who was sitting next to VanDyke, and is also up for a seat on the 9th Circuit. During his opening statement, Bumatay had introduced his husband and their two children. Graham asked Bumatay if he thought VanDyke could be fair to him. Bumatay said he could.
Democrats on the committee, meanwhile, reacted with concern about the allegations in the letter.
Sen. Patrick Leahy called it “one of the most alarming he’d seen” after some 45 years in Congress. Sen. Chris Coons noted that the letter was “fairly damning” because it was based on interviews with people who had worked with the nominee over the years. Sen. Sheldon Whitehouse suggested that the ABA should be brought in to testify about the matter.
But Republican Sen. Mike Lee reacted furiously, claiming that the letter was “unfounded.” “If this man is not qualified, I don’t know who is,” Lee said. He added that the ABA no longer deserves a “seat at the table” because it has little transparency and cannot be seen as a neutral player when it comes to confirmation hearings.
“The time has come,” Lee said, for the White House and the committee to suspend the ABA’s involvement until there could be a thorough investigation. Texas GOP Sen. Ted Cruz said the group had found VanDyke to be guilty of “practicing law while conservative.”
Asked for comment, the ABA declined to comment on the record, but acknowledged that Davenport had made a $150 contribution to VanDyke’s opponent.
One ABA official said that the group was not going to comment on a $150 contribution made five years ago and pointed to the group’s rules that specify a member of the standing committee agreed not to participate in, or contribute to, any federal election campaign or engage in any partisan political activity on a federal level. The race in question was for the Montana state Supreme Court.
Importance of ABA ratings
The ABA ratings have been used to criticize Trump nominees who liberal critics fear, and conservatives hope that will provide major rulings on issues such as abortion, the Second Amendment and affirmative action. And if some of those cases make their way to the Supreme Court, conservatives will be content to know that the strong conservative majority with Neil Gorsuch and Brett Kavanaugh will be there to rule in their favor.
As of last week, the Senate has now confirmed five judges the ABA deemed unqualified: Leonard Steven Grasz, Charles Barnes Goodwin, Holly Lou Teeter, Jonathan Kobes, and Justin Walker. Goodwin and Teeter received support from Democrats, while the other three were approved only with Republican votes.
Overall, the setbacks have been few as Senate Majority Leader Mitch McConnell has pushed through a record number of appellate judges and often praises a legacy that will last decades.
Two Trump judicial nominees who have been called unqualified by the ABA – John O’Connor and Brett Talley – have withdrawn from consideration. But the setbacks for McConnell and Trump have been far outweighed by their successes in confirming scores and scores of judges. Their effort to reshape the judicial branch with young conservatives is perhaps their longest-lasting legacy.
Last week, Graham shepherded the confirmation of Justin R. Walker, 37, an assistant professor of law at the Brandeis School of Law at the University of Louisville, who received a “not qualified” rating from the ABA, to be a judge on a US district court.
A spokesperson for the ABA said that its rating process is done by a standing committee of the federal judiciary which is independent of the ABA leadership and does extensive peer reviews of the nominees writings and interviews with people who have worked with them. They have three criteria: integrity, temperament and experience and say that ideology does not factor in the evaluation at all.
The ABA rated Walker not qualified, it said in a letter, because he “does not presently have the requisite trial or litigation experience or its equivalent.” The letter stressed that the committee had no questions on his temperament or integrity and that in the future it felt like he had “great potential to serve as a federal judge.”
McConnell, for his part, called Walker “unquestionably the most outstanding nomination that I’ve ever recommended to Presidents to serve on the bench in Kentucky.”
Another nominee the ABA has deemed unqualified is US district judge nominee Sarah E. Pitlyk, who serves as a special counsel at the Thomas More Society, a national public interest law firm that has litigated against Planned Parenthood and was nominated for the Eastern District of Missouri.
The Senate Judiciary Committee is scheduled to vote on her nomination Thursday.
The ABA also criticized her lack of trial and litigation experience.
“A nominee to the federal bench ordinarily should have a minimum of 12 years’ experience in the practice of law,” the committee wrote, although they said the guideline is “neither a hard-and-fast rule or an automatic disqualifier.” “However, Ms. Pitlyk’s experience to date has a very substantial gap, namely the absence of any trial or even real litigation experience.”
“Ms. Pitlyk has never tried a case as lead or co-counsel, whether civil or criminal,” wrote William Hubbard, chair of the ABA’s standing committee on the federal judiciary. ‘She has never examined a witness. “Though Ms. Pitlyk has argued one case in a court of appeals, she has not taken a deposition. She has not argued any motion in a state or federal trial court. She has never picked a jury. She has never participated at any stage of a criminal matter.”
That letter sparked a fight during Pitlyk’s nomination hearing before the Judiciary Committee. Sen. Ted Cruz, R-Texas, said the ABA has a “ridiculous record of behaving as a partisan mouthpiece when it comes to judicial nominations,” and that some members have donated to Democratic lawmakers.
Illinois Democratic Sen. Dick Durbin then remarked that Hubbard had donated to Graham in the past.
“A good man,” joked Graham. He later defended the ABA’s recommendations as “helpful,” calling it a “fine group” that was politically left in his view, but employed people whose judgment he trusts. Graham added that it failed to appreciate Pitlyk’s “non-traditional practice.”
Judicial Nominee Paul Matey Exemplifies the Breakdown of Bipartisan Norms in the Senate
Originally Published: January 28, 2019 | Republished by LIT: March 10, 2021
Dear Chairman Graham, Ranking Member Feinstein, and Committee Members:
On behalf of our hundreds of thousands of members and activists across the United States, People For the American Way opposes the confirmation of Paul Matey of New Jersey to be a federal judge on the Third Circuit Court of Appeals.
Matey served as a senior aide to Gov. Chris Christie from 2010-2015, offered Christie legal advice during a scandal-filled period that included Bridgegate, the use of Hurricane Sandy disaster relief funds for what was essentially a reelection commercial, and rewarding a major political donor with a $150 million no-bid contract.
With both home state senators Bob Menendez and Cory Booker opposed, Matey’s nomination exemplifies the breakdown in norms that once allowed the parties to work together while identifying highly qualified consensus nominees for the federal bench.
During the first two years of the Trump presidency, the Judiciary Committee held hearings for an unprecedented number of circuit court nominees opposed by one or both home state senators. When President Trump nominated Paul Matey, he did so without meaningfully consulting with Menendez and Booker. In addition, Chairman Grassley held a hearing over their objections, even though Booker was a colleague on the committee.
Home state senators often have knowledge of a nominee that might not be known to the White House, and that is certainly the case here. Matey worked as senior vice president and general counsel at University Hospital in Newark. During his tenure, the hospital had several major problems and scandals, including a safety grade that plummeted down to an F. As mayor of Newark at the time, Booker was deeply familiar with the situation, yet he was not meaningfully consulted by the White House. Grassley scheduled Matey’s hearing without first asking Booker to explain his opposition or giving his colleague a chance to meet with the nominee.
As the New Jersey senators wrote to Grassley on November 9, 2018,i after the hearing was scheduled:
[T]he Trump Administration never offered us a meeting with Mr. Matey. The Administration did not make an offer for such a meeting before his nomination in April 2018. The Administration did not do so during the period after his nomination. The Administration did not do so before a Judiciary Committee hearing on his nomination was scheduled. And it has not done so to date.
At Matey’s confirmation hearing,ii Booker urged Grassley to let him meet with the nominee to discuss his concerns in private before the public questioning:
I’m a member of your committee, sir. I know that you would want any judge from your great state that you would want at least the courtesy of having a meeting. Sir, I offer you right now, I will go with this nominee, sit with him in my office, to have that courtesy conversation.
Menendez, I don’t want to speak for my colleague, but I imagine that he would want that courtesy that any senator that is a member of your committee would want. We’ve never denied a meeting with this person.
As a duly elected senator from New Jersey, for a nominee that has served in my city that I was a mayor of is a matter of grace. I’m asking you to extend to me the opportunity before we have this hearing to have a more substantive conversation with this nominee. Would you please grant my — I will meet with him now in my office.
Grassley said no.
But the 116th Congress brings new leadership to the Judiciary Committee, and a chance to restore the norms shattered during these past two years. Chairman Lindsey Graham should not allow the committee to process Matey’s renomination without the consent of both home state senators.
Executive Vice President for Policy and Program
Democrats vow Judge Chad Readler will be 2020 issue
Murray and Schumer among Democrats blasting his role in targeting health care law
Originally Published: March 6, 2019 | Republished by LIT: March 10, 2021
Democrats say they will remember the Wednesday afternoon vote to confirm Chad A. Readler, one of President Donald Trump’s most contentious judicial nominees.
The 52-47 vote to install Readler on the 6th U.S. Circuit Court of Appeals in Ohio could easily be lumped in with many other Trump choices pushed through the Senate by Majority Leader Mitch McConnell of Kentucky.
But Readler’s connection to the Justice Department’s decision not to defend the 2010 health care law and its pre-existing condition protections in litigation led by the state of Texas struck a particular chord, as Senate Health, Education, Labor and Pensions ranking member Patty Murray said ahead of the confirmation vote.
“People across the country haven’t forgotten how they had to speak up and stop Republicans from jamming through their awful Trumpcare bill, which would have spiked premiums, gutted Medicaid, and put families back at the mercy of big insurance companies, who could jack up prices for people with pre-existing conditions,” the Washington Democrat said. “Because let’s be clear. Chad Readler’s nomination is the latest test of whether Republicans are serious about fighting for people’s health care — and every Republican who supports him is failing yet again.”
Minority Leader Charles E. Schumer seconded the message that Democrats would not let this one go.
“Can you imagine voting for a man that is so cold hearted that he doesn’t protect a mother who has a daughter or son with cancer, and the insurance companies cuts them off, and they have to watch their child suffer? Will our Republican colleagues actually vote for a nominee who feels that way — not just in his word, but in his action? It’s going to be remembered — this vote — for a long time,” Schumer said on the Senate floor. “A long, long time.”
And this time, one Republican senator echoed the argument made by Murray, Schumer and other Democrats.
Maine Sen. Susan Collins announced Tuesday that she would oppose Readler’s confirmation, citing his “role in the government’s failure to defend provisions under current law that protect individuals with pre-existing conditions.”
“I strongly objected to DOJ’s position to not defend the law, and it is telling that this position also concerned some other career attorneys in the Department. In fact, three career attorneys withdrew from the case rather than support this position, and one of those attorneys eventually resigned,” Collins said in a statement, adding that the Justice Department’s position in the case was simply “wrong and implausible.”
A number of outside groups that support the health care law that came into effect under President Barack Obama have seized on the nominee as the latest example of the GOP’s hostility to health care access, as has the political operation of Senate Democrats.
“The Republicans who support his nomination learned nothing from the shellacking their party suffered during the midterms, and they continue to set the stage for their own defeat in 2020,” said David Bergstein, a spokesman for the Democratic Senatorial Campaign Committee.
Readler is the second of three Trump appellate nominees on track for confirmation this week, following confirmation of Allison Jones Rushing by a 53-44 vote to a seat on the 4th Circuit. She faced questions about her relative inexperience.
Senators also voted 53-46 to limit debate on the nomination of Eric Murphy to another 6th Circuit seat shortly after confirming Readler on Wednesday.
And the confirmations are coming ahead of what seems like an inevitable move by McConnell and Senate Republicans to use the “nuclear option” to enact new Senate precedents that could sharply curtail the debate time — to up to two hours — for lower-level federal district judges, as well as a host of executive branch nominees.
Former Judiciary Chairman Patrick J. Leahy of Vermont again criticized Republicans on Wednesday for not honoring the “blue slips” from Democratic senators when it comes to appeals court nominees, which had been used for decades to indicate consent of home state senators for the confirmation process to move forward.
Ohio Democratic Sen. Sherrod Brown has blasted the Readler nomination. Republicans have argued that such blue slips were not often enforced when it comes to appeals court seats.
Senate Rules and Administration Chairman Roy Blunt highlighted the debate on Tuesday, pointing out that former Rep. John Fleming of Louisiana has been reported out of committee on voice vote twice, but had not yet overcome Democratic objections to be confirmed to a sub-Cabinet position in the Trump administration.
“This week, our leader is required to allocate 30 hours of debate time to confirm the deputy assistant secretary of Commerce for economic development,” the Missouri Republican said. “Most Americans would have a hard time remembering that full title, including me.”
Wall Street and the Government decided, if they were to make it through the Greatest Depression, they’d have to spin their biggest lie in the history of the United States of America. It worked.
Invasion of the Home Snatchers
How foreclosure courts are helping big banks screw over homeowners
NOV 10, 2010 | REPUBLISHED BY LIT: DEC 4, 2021
The foreclosure lawyers down in Jacksonville had warned me, but I was skeptical. They told me the state of Florida had created a special super-high-speed housing court with a specific mandate to rubber-stamp the legally dicey foreclosures by corporate mortgage pushers like Deutsche Bank and JP Morgan Chase.
This “rocket docket,” as it is called in town, is presided over by retired judges who seem to have no clue about the insanely complex financial instruments they are ruling on — securitized mortgages and labyrinthine derivative deals of a type that didn’t even exist when most of them were active members of the bench.
Their stated mission isn’t to decide right and wrong, but to clear cases and blast human beings out of their homes with ultimate velocity. They certainly have no incentive to penetrate the profound criminal mysteries of the great American mortgage bubble of the 2000s, perhaps the most complex Ponzi scheme in human history — an epic mountain range of corporate fraud in which Wall Street megabanks conspired first to collect huge numbers of subprime mortgages, then to unload them on unsuspecting third parties like pensions, trade unions and insurance companies (and, ultimately, you and me, as taxpayers) in the guise of AAA-rated investments.
Selling lead as gold, shit as Chanel No. 5, was the essence of the booming international fraud scheme that created most all of these now-failing home mortgages.
Indymac “Liar Loans” An audit found 87% fraudulent. Federal Courts are protecting OneWest and Wall St Banks by attempting to steal the elder Burkes Home.
— LawsInTexas (@lawsintexasusa) November 27, 2021
Looting Main Street
The rocket docket wasn’t created to investigate any of that. It exists to launder the crime and bury the evidence by speeding thousands of fraudulent and predatory loans to the ends of their life cycles, so that the houses attached to them can be sold again with clean paperwork.
The judges, in fact, openly admit that their primary mission is not justice but speed.
One Jacksonville judge, the Honorable A.C. Soud, even told a local newspaper that his goal is to resolve 25 cases per hour.
Given the way the system is rigged, that means His Honor could well be throwing one ass on the street every 2.4 minutes.
Foreclosure lawyers told me one other thing about the rocket docket. The hearings, they said, aren’t exactly public.
“The judges might give you a hard time about watching,” one lawyer warned. “They’re not exactly anxious for people to know about this stuff.”
Inwardly, I laughed at this — it sounded like typical activist paranoia. The notion that a judge would try to prevent any citizen, much less a member of the media, from watching an open civil hearing sounded ridiculous.
Fucked-up as everyone knows the state of Florida is, it couldn’t be that bad. It isn’t Indonesia. Right?
Well, not quite.
When I went to sit in on Judge Soud’s courtroom in downtown Jacksonville, I was treated to an intimate, and at times breathtaking, education in the horror of the foreclosure crisis, which is rapidly emerging as the even scarier sequel to the financial meltdown of 2008:
Invasion of the Home Snatchers II.
In Las Vegas, one in 25 homes is now in foreclosure.
In Fort Myers, Florida, one in 35.
In September, lenders nationwide took over a record 102,134 properties; that same month, more than a third of all home sales were distressed properties.
All told, some 820,000 Americans have already lost their homes this year, and another 1 million currently face foreclosure.
Throughout the mounting catastrophe, however, many Americans have been slow to comprehend the true nature of the mortgage disaster. They seemed to have grasped just two things about the crisis:
One, a lot of people are getting their houses foreclosed on.
Two, some of the banks doing the foreclosing seem to have misplaced their paperwork.
For most people, the former bit about homeowners not paying their damn bills is the important part, while the latter, about the sudden and strange inability of the world’s biggest and wealthiest banks to keep proper records, is incidental.
Just a little office sloppiness, and who cares?
Those deadbeat homeowners still owe the money, right?
“They had it coming to them,” is how a bartender at the Jacksonville airport put it to me.
But in reality, it’s the unpaid bills that are incidental and the lost paperwork that matters.
It turns out that underneath that little iceberg tip of exposed evidence lies a fraud so gigantic that it literally cannot be contemplated by our leaders, for fear of admitting that our entire financial system is corrupted to its core — with our great banks and even our government coffers backed not by real wealth but by vast landfills of deceptively generated and essentially worthless mortgage-backed assets.
You’ve heard of Too Big to Fail — the foreclosure crisis is Too Big for Fraud.
Think of the Bernie Madoff scam, only replicated tens of thousands of times over, infecting every corner of the financial universe. The underlying crime is so pervasive, we simply can’t admit to it — and so we are working feverishly to rubber-stamp the problem away, in sordid little backrooms in cities like Jacksonville, behind doors that shouldn’t be, but often are, closed.
And that’s just the economic side of the story.
The moral angle to the foreclosure crisis — and, of course, in capitalism we’re not supposed to be concerned with the moral stuff, but let’s mention it anyway — shows a culture that is slowly giving in to a futuristic nightmare ideology of computerized greed and unchecked financial violence.
The monster in the foreclosure crisis has no face and no brain.
The mortgages that are being foreclosed upon have no real owners. The lawyers bringing the cases to evict the humans have no real clients. It is complete and absolute legal and economic chaos.
No single limb of this vast man-eating thing knows what the other is doing, which makes it nearly impossible to combat — and scary as hell to watch.
What follows is an account of a single hour of Judge A.C. Soud’s rocket docket in Jacksonville.
Like everything else related to the modern economy, these foreclosure hearings are conducted in what is essentially a foreign language, heavy on jargon and impenetrable to the casual observer.
It took days of interviews with experts before and after this hearing to make sense of this single hour of courtroom drama. And though the permutations of small-time scammery and grift in the foreclosure world are virtually endless — your average foreclosure case involves homeowners or investors being screwed at least five or six creative ways — a single hour of court and a few cases is enough to tell the main story.
Because if you see one of these scams, you see them all.
A Message to US Supreme Court Justice Stephen Breyer @stephen_breyer from LIT; @StephenAtHome @TuckerCarlson @POTUS @nbcsnl @netflix @PrimeVideo @TexasTribune @ariannahuff @HarvardFedSoc @HarvardLawProf @WSJopinion @ReutersLegal #txlege #appellatetwitter #OperationWhiteout pic.twitter.com/qahobp4Hq0
— LawsInTexas (@lawsintexasusa) November 22, 2021
It’s early on a sunny Tuesday morning when I arrive at the chambers of Judge Soud, one of four rotating judges who preside over the local rocket docket.
These special foreclosure courts were established in July of this year, after the state of Florida budgeted $9.6 million to create a new court with a specific mandate to clear 62 percent of the foreclosure cases that were clogging up the system.
Rather than forcing active judges to hear thousands of individual cases, this strategy relies on retired judges who take turns churning through dozens of cases every morning, with little time to pay much attention to the particulars.
What passes for a foreclosure court in Jacksonville is actually a small conference room at the end of a hall on the fifth floor of the drab brick Duval County Courthouse. The space would just about fit a fridge and a pingpong table.
At the head of a modest conference table this morning sits Judge Soud, a small and fussy-looking man who reminds me vaguely of the actor Ben Gazzara.
On one side of the table sits James Kowalski, a former homicide prosecutor who is now defending homeowners.
A stern man with a shaved head and a laconic manner of speaking, Kowalski has helped pioneer a whole new approach to the housing mess, slowing down the mindless eviction machine by deposing the scores of “robo-signers” being hired by the banks to sign phony foreclosure affidavits by the thousands.
For his work on behalf of the dispossessed, Kowalski was recently profiled in a preposterous Wall Street Journal article that blamed attorneys like him for causing the foreclosure mess with their nuisance defense claims.
The headline: “Niche Lawyers Spawned Housing Fracas.”
On the other side of the table are the plaintiff’s attorneys, the guys who represent the banks.
On this level of the game, these lawyers refer to themselves as “bench warmers” — volume stand-ins subcontracted by the big, hired-killer law firms that work for the banks.
One of the bench warmers present today is Mark Kessler, who works for a number of lenders and giant “foreclosure mills,” including the one run by David J. Stern, a gazillionaire attorney and all-Universe asshole who last year tried to foreclose on 70,382 homeowners.
Which is a nice way to make a living, considering that Stern and his wife, Jeanine, have bought nearly $60 million in property for themselves in recent years, including a 9,273-square-foot manse in Fort Lauderdale that is part of a Ritz-Carlton complex.
Kessler is a harried, middle-aged man in glasses who spends the morning perpetually fighting to organize a towering stack of folders, each one representing a soon-to-be-homeless human being. It quickly becomes apparent that Kessler is barely acquainted with the names in the files, much less the details of each case.
“A lot of these guys won’t even get the folders until right before the hearing,” says Kowalski.
When I arrive, Judge Soud and the lawyers are already arguing a foreclosure case; at a break in the action, I slip into the chamber with a legal-aid attorney who’s accompanying me and sit down. The judge eyes me anxiously, then proceeds.
He clears his throat, and then it’s ready, set, fraud!
Judge Soud seems to have no clue that the files he is processing at a breakneck pace are stuffed with fraudulent claims and outright lies.
“We have not encountered any fraud yet,” he recently told a local newspaper. “If we encountered fraud, it would go to [the state attorney], I can tell you that.”
But the very first case I see in his court is riddled with fraud.
Kowalski has seen hundreds of cases like the one he’s presenting this morning.
It started back in 2006, when he went to Pennsylvania to conduct what he thought would be a routine deposition of an official at the lending giant GMAC.
What he discovered was that the official — who had sworn to having personal knowledge of the case — was, in fact, just a “robo-signer” who had signed off on the file without knowing anything about the actual homeowner or his payment history.
(Kowalski’s clients, like most of the homeowners he represents, were actually making their payments on time; in this particular case, a check had been mistakenly refused by GMAC.)
Following the evidence, Kowalski discovered what has turned out to be a systemwide collapse of the process for documenting mortgages in this country.
A #Thanksgiving Message to Justice Neil Gorsuch from LIT:@TheBushCenter @laurawbush @JebBush @KarlRove @NathanLHecht @BrettBusby @SupremeCourt_TX @statebaroftexas @HoustonChron @dallasnews @statesman @thesundaytimes @guardian @Telegraph @BorisJohnson @10DowningStreet #txlege pic.twitter.com/TRH14ytDeJ
— LawsInTexas (@lawsintexasusa) November 25, 2021
If you’re foreclosing on somebody’s house, you are required by law to have a collection of paperwork showing the journey of that mortgage note from the moment of issuance to the present.
You should see the originating lender (a firm like Countrywide) selling the loan to the next entity in the chain (perhaps Goldman Sachs) to the next (maybe JP Morgan), with the actual note being transferred each time.
But in fact, almost no bank currently foreclosing on homeowners has a reliable record of who owns the loan; in some cases, they have even intentionally shredded the actual mortgage notes.
That’s where the robo-signers come in.
To create the appearance of paperwork where none exists, the banks drag in these pimply entry-level types — an infamous example is GMAC’s notorious robo-signer Jeffrey Stephan, who appears online looking like an age-advanced photo of Beavis or Butt-Head — and get them to sign thousands of documents a month attesting to the banks’ proper ownership of the mortgages.
This isn’t some rare goof-up by a low-level cubicle slave: Virtually every case of foreclosure in this country involves some form of screwed-up paperwork.
“I would say it’s pretty close to 100 percent,”
says Kowalski. An attorney for Jacksonville Area Legal Aid tells me that out of the hundreds of cases she has handled, fewer than five involved no phony paperwork.
“The fraud is the norm,” she says.
Kowalski’s current case before Judge Soud is a perfect example.
The Jacksonville couple he represents are being sued for delinquent payments, but the case against them has already been dismissed once before. The first time around, the plaintiff, Bank of New York Mellon, wrote in Paragraph 8 that “plaintiff owns and holds the note” on the house belonging to the couple.
But in Paragraph 3 of the same complaint, the bank reported that the note was “lost or destroyed,” while in Paragraph 4 it attests that “plaintiff cannot reasonably obtain possession of the promissory note because its whereabouts cannot be determined.”
The bank, in other words, tried to claim on paper, in court, that it both lost the note and had it, at the same time. Moreover, it claimed that it had included a copy of the note in the file, which it did — the only problem being that the note (a) was not properly endorsed, and (b) was payable not to Bank of New York but to someone else, a company called Novastar.
Now, months after its first pass at foreclosure was dismissed, the bank has refiled the case — and what do you know, it suddenly found the note. And this time, somehow, the note has the proper stamps.
“There’s a stamp that did not appear on the note that was originally filed,” Kowalski tells the judge. (This business about the stamps is hilarious. “You can get them very cheap online,” says Chip Parker, an attorney who defends homeowners in Jacksonville.)
The bank’s new set of papers also traces ownership of the loan from the original lender, Novastar, to JP Morgan and then to Bank of New York.
The bank, in other words, is trying to push through a completely new set of documents in its attempts to foreclose on Kowalski’s clients.
There’s only one problem: The dates of the transfers are completely fucked.
According to the documents, JP Morgan transferred the mortgage to Bank of New York on December 9th, 2008. But according to the same documents, JP Morgan didn’t even receive the mortgage from Novastar until February 2nd, 2009 — two months after it had supposedly passed the note along to Bank of New York.
Such rank incompetence at doctoring legal paperwork is typical of foreclosure actions, where the fraud is laid out in ink in ways that make it impossible for anyone but an overburdened, half-asleep judge to miss.
“That’s my point about all of this,”
Kowalski tells me later.
“If you’re going to lie to me, at least lie well.”
The dates aren’t the only thing screwy about the new documents submitted by Bank of New York.
Having failed in its earlier attempt to claim that it actually had the mortgage note, the bank now tries an all-of-the-above tactic.
“Plaintiff owns and holds the note,” it claims, “or is a person entitled to enforce the note.”
Soud sighs. For Kessler, the plaintiff’s lawyer, to come before him with such sloppy documents and make this preposterous argument — that his client either is or is not the note-holder — well, that puts His Honor in a tough spot.
The entire concept is a legal absurdity, and he can’t sign off on it.
With an expression of something very like regret, the judge tells Kessler,
“I’m going to have to go ahead and accept [Kowalski’s] argument.”
Now, one might think that after a bank makes multiple attempts to push phony documents through a courtroom, a judge might be pissed off enough to simply rule against that plaintiff for good.
As I witness in court all morning, the defense never gets more than one chance to screw up. But the banks get to keep filing their foreclosures over and over again, no matter how atrocious and deceitful their paperwork is.
Thus, when Soud tells Kessler that he’s dismissing the case, he hastens to add:
“Of course, I’m not going to dismiss with prejudice.” With an emphasis on the words “of course.”
Instead, Soud gives Kessler 25 days to come up with better paperwork.
Kowalski fully expects the bank to come back with new documents telling a whole new story of the note’s ownership.
“What they’re going to do, I would predict, is produce a note and say Bank of New York is not the original note-holder, but merely the servicer,” he says.
This is the dirty secret of the rocket docket
The whole system is set up to enable lenders to commit fraud over and over again, until they figure out a way to reduce the stink enough so some judge like Soud can sign off on the scam.
“If the court finds for the defendant, the plaintiffs just refile,” says Parker, the local attorney.
“The only way for the caseload to get reduced is to give it to the plaintiff. The entire process is designed with that result in mind.”
Now all of this — the obviously cooked-up documents, the magically appearing stamp and the rest of it — may just seem like nothing more than sloppy paperwork. After all, what does it matter if the bank has lost a few forms or mixed up the dates?
The homeowners still owe what they owe, and the deadbeats have no right to keep living in a house they haven’t paid for.
But what’s going on at the Jacksonville rocket docket, and in foreclosure courts all across the country, has nothing to do with sloppiness.
All this phony paperwork was actually an essential part of the mortgage bubble, an integral element of what has enabled the nation’s biggest lenders to pass off all that subprime lead as AAA gold.
In the old days, when you took out a mortgage, it was probably through a local bank or a credit union, and whoever gave you your loan held on to it for life.
If you lost your job or got too sick to work and suddenly had trouble making your payments, you could call a human being and work things out.
It was in the banker’s interest, as well as yours, to make a modified payment schedule.
From his point of view, it was better that you pay something than nothing at all.
But that all changed about a decade ago, thanks to the invention of new financial instruments that magically turned all these mortgages into high-grade investments.
Now when you took out a mortgage, your original lender — which might well have been a big mortgage mill like Countrywide or New Century — immediately sold off your loan to big banks like Deutsche and Goldman and JP Morgan.
The banks then dumped hundreds or thousands of home loans at a time into tax-exempt real estate trusts, where the loans were diced up into securities, examined and graded by the ratings agencies, and sold off to big pension funds and other institutional suckers.
Even at this stage of the game, the banks generally knew that the loans they were buying and reselling to investors were shady.
A company called Clayton Holdings, which analyzed nearly 1 million loans being prepared for sale in 2006 and 2007 by 23 banks, found that nearly half of the mortgages failed to meet the underwriting standards being promised to investors.
Citigroup, for instance, had 29 percent of its loans come up short, but it still sold a third of those mortgages to investors.
Goldman Sachs had 19 percent of its mortgages flunk the test, yet it knowingly hawked 34 percent of the risky deals to investors.
D. Keith Johnson, the head of Clayton Holdings, was so alarmed by the findings that he went to officials at three of the main ratings agencies — Moody’s, Standard and Poor’s, and Fitch’s — and tried to get them to properly evaluate the loans.
“Wouldn’t this information be great for you to have as you assign risk levels?” he asked them.
(Translation: Don’t you ratings agencies want to know that half these loans are crap before you give them a thumbs-up?)
But all three agencies rejected his advice, fearing they would lose business if they adopted tougher standards. In the end, the agencies gave large chunks of these mortgage-backed securities AAA ratings — which means “credit risk almost zero.”
Since these mortgage-backed securities paid much higher returns than other AAA investments like treasury notes or corporate bonds, the banks had no trouble attracting investors, foreign and domestic, from pension funds to insurance companies to trade unions.
The demand was so great, in fact, that they often sold mortgages they didn’t even have yet, prompting big warehouse lenders like Countrywide and New Century to rush out into the world to find more warm bodies to lend to.
In their extreme haste to get thousands and thousands of mortgages they could resell to the banks, the lenders committed an astonishing variety of fraud,
from falsifying income statements to making grossly inflated appraisals to misrepresenting properties to home buyers.
Most crucially, they gave tons and tons of credit to people who probably didn’t deserve it, and why not?
These fly-by-night mortgage companies weren’t going to hold on to these loans, not even for 10 minutes.
They were issuing this credit specifically to sell the loans off to the big banks right away, in furtherance of the larger scheme to dump fraudulent AAA-rated mortgage-backed securities on investors.
If you had a pulse, they had a house to sell you.
As bad as Countrywide and all those lenders were, the banks that had sent them out to collect these crap loans were a hundred times worse.
To sell the loans, the banks often dumped them into big tax-exempt buckets called REMICs, or Real Estate Mortgage Investment Conduits. Each one of these Enron-ish, offshore-like real estate trusts spelled out exactly what kinds of loans were supposed to be in the pool, when they were to be collected, and how they were to be managed.
In order to both preserve their tax-exempt status and deserve their AAA ratings, each of the loans in the pool had to have certain characteristics. The loans couldn’t already be in default or foreclosure at the time they were sold to investors.
If they were advertised as nice, safe, fixed-rate mortgages, they couldn’t turn out to be high-interest junk loans. And, on the most basic level, the loans had to actually exist.
In other words, if the trust stipulated that all the loans had to be collected by August 2005, the bank couldn’t still be sticking in mortgages months later.
Yet that’s exactly what the banks did. In one case handled by Jacksonville Area Legal Aid, a homeowner refinanced her house in 2005 but almost immediately got into trouble, going into default in December of that year.
Yet somehow, this woman’s loan was placed into a trust called Home Equity Loan Trust Series AE 2005-HE5 in January 2006 — five months after the deadline for that particular trust.
The loan was not only late, it was already in foreclosure — which means that, by definition, whoever the investors were in AE 2005-HE5 were getting shafted.
A Message to Justice Elena Kagan from LIT:#OperationWhiteout@uscourts @WSJopinion @HarvardLaw_ @YaleLawSch @PBS @WisconsinLaw @stetsonlaw @UNLVLaw @sjquinney @kulawschool @TempleLaw @TulaneLaw @reason @MotherJones @Pontifex @Princeton @Cornell @Stanford @abc #appellatetwitter pic.twitter.com/S1VqvLU6jN
— LawsInTexas (@lawsintexasusa) November 24, 2021
Why does stuff like this matter?
Because when the banks put these pools together, they were telling their investors that they were putting their money into tidy collections of real, performing home loans.
But frequently, the loans in the trust were complete shit. Or sometimes, the banks didn’t even have all the loans they said they had. But the banks sold the securities based on these pools of mortgages as AAA-rated gold anyway.
In short, all of this was a scam — and that’s why so many of these mortgages lack a true paper trail.
Had these transfers been done legally, the actual mortgage note and detailed information about all of these transactions would have been passed from entity to entity each time the mortgage was sold.
But in actual practice, the banks were often committing securities fraud (because many of the mortgages did not match the information in the prospectuses given to investors) and tax fraud (because the way the mortgages were collected and serviced often violated the strict procedures governing such investments).
Having unloaded this diseased cargo onto their unsuspecting customers, the banks had no incentive to waste money keeping “proper” documentation of all these dubious transactions.
“You’ve already committed fraud once,” says April Charney, an attorney with Jacksonville Area Legal Aid. “What do you have to lose?”
Sitting in the rocket docket, James Kowalski considers himself lucky to have won his first motion of the morning.
To get the usually intractable Judge Soud to forestall a foreclosure is considered a real victory, and I later hear Kowalski getting props and attaboys from other foreclosure lawyers.
In a great deal of these cases, in fact, the homeowners would have a pretty good chance of beating the rap, at least temporarily, if only they had lawyers fighting for them in court.
But most of them don’t.
In fact, more than 90 percent of the cases that go through Florida foreclosure courts are unopposed.
Either homeowners don’t know they can fight their foreclosures, or they simply can’t afford an attorney.
These unopposed cases are the ones the banks know they’ll win — which is why they don’t sweat it if they take the occasional whipping.
That’s why all these colorful descriptions of cases where foreclosure lawyers like Kowalski score in court are really just that — a little color.
The meat of the foreclosure crisis is the unopposed cases; that’s where the banks make their money. They almost always win those cases, no matter what’s in the files.
This becomes evident after Kowalski leaves the room.
“Who’s next?” Judge Soud says. He turns to Mark Kessler, the counsel for the big foreclosure mills. “Mark, you still got some?”
“I’ve got about three more, Judge,” says Kessler.
Kessler then drops three greenish-brown files in front of Judge Soud, who spends no more than a minute or two glancing through each one.
Then he closes the files and puts an end to the process by putting his official stamp on each foreclosure with an authoritative finality:
Each one of those kerchunks means another family on the street.
There are no faces involved here, just beat-the-clock legal machinery.
Watching Judge Soud plow through each foreclosure reminds me of the scene in Fargo where the villain played by Swedish character actor Peter Stormare pushes his victim’s leg through a wood chipper with that trademark bored look on his face.
Mechanized misery and brainless bureaucracy on the one hand, cash for the banks on the other.
FACING THE TURNCOATS
An Incredible True Story.
“The significant and distressing difference is the Burkes battle is not just with the opposing parties, but with the judicial machinery itself.”
IT’S TIME.@WSJ @nytimes @Reuters @SupremeCourt_TX @flcourts #txlege #appellatetwitter pic.twitter.com/ORqzoqOuaP
— LawsInTexas (@lawsintexasusa) November 20, 2021
What’s sad is that most Americans who have an opinion about the foreclosure crisis don’t give a shit about all the fraud involved. They don’t care that these mortgages wouldn’t have been available in the first place if the banks hadn’t found a way to sell oregano as weed to pension funds and insurance companies.
They don’t care that the Countrywides’ of the world pushed borrowers who qualified for safer fixed-income loans into far more dangerous adjustable-rate loans, because their brokers got bigger commissions for doing so.
They don’t care that in the rush to produce loans, people were sold houses that turned out to have flood damage or worse, and they certainly don’t care that people were sold houses with inflated appraisals, which left them almost immediately underwater once housing prices started falling.
The way the banks tell it, it doesn’t matter if they defrauded homeowners and investors and taxpayers alike to get these loans.
All that matters is that a bunch of deadbeats aren’t paying their fucking bills.
“If you didn’t pay your mortgage, you shouldn’t be in your house — period,” is how Walter Todd, portfolio manager at Greenwood Capital Associates, puts it.
“People are getting upset about something that’s just procedural.”
Jamie Dimon, the CEO of JP Morgan, is even more succinct in dismissing the struggling homeowners that he and the other megabanks scammed before tossing out into the street.
“We’re not evicting people who deserve to stay in their house,” Dimon says.
There are two things wrong with this argument. (Well, more than two, actually, but let’s just stick to the two big ones.)
The first reason is: It simply isn’t true.
Many people who are being foreclosed on have actually paid their bills and followed all the instructions laid down by their banks. In some cases, a homeowner contacts the bank to say that he’s having trouble paying his bill, and the bank offers him loan modification. But the bank tells him that in order to qualify for modification, he must first be delinquent on his mortgage.
“They actually tell people to stop paying their bills for three months,” says Parker.
The authorization gets recorded in what’s known as the bank’s “contact database,” which records every phone call or other communication with a homeowner. But no mention of it is entered into the bank’s “number history,” which records only the payment record.
When the number history notes that the homeowner has missed three payments in a row, it has no way of knowing that the homeowner was given permission to stop making payments. “One computer generates a default letter,” says Kowalski. “Another computer contacts the credit bureaus.”
At no time is there a human being looking at the entire picture.
Which means that homeowners can be foreclosed on for all sorts of faulty reasons: misplaced checks, address errors, you name it. This inability of one limb of the foreclosure beast to know what the other limb is doing is responsible for many of the horrific stories befalling homeowners across the country.
Patti Parker, a local attorney in Jacksonville, tells of a woman whose home was seized by Deutsche Bank two days before Christmas. Months later, Deutsche came back and admitted that they had made a mistake: They had repossessed the wrong property.
In another case that made headlines in Orlando, an agent for JP Morgan mistakenly broke into a woman’s house that wasn’t even in foreclosure and tried to change the locks.
Terrified, the woman locked herself in her bathroom and called 911. But in a profound expression of the state’s reflexive willingness to side with the bad guys, the police made no arrest in the case. Breaking and entering is not a crime, apparently, when it’s authorized by a bank.
The second reason the whole they still owe the fucking money thing is bogus has to do with the changed incentives in the mortgage game.
In many cases, banks like JP Morgan are merely the servicers of all these home loans, charged with collecting your money every month and paying every penny of it into the trust, which is the real owner of your mortgage.
If you pay less than the whole amount, JP Morgan is now obligated to pay the trust the remainder out of its own pocket. When you fall behind, your bank falls behind, too. The only way it gets off the hook is if the house is foreclosed on and sold.
That’s what this foreclosure crisis is all about: fleeing the scene of the crime.
Add into the equation the fact that some of these big banks were simultaneously betting big money against these mortgages — Goldman Sachs being the prime example — and you can see that there were heavy incentives across the board to push anyone in trouble over the cliff.
Things used to be different.
Asked what percentage of struggling homeowners she used to be able to save from foreclosure in the days before securitization,
Charney is quick to answer.
“Most of them,” she says. “I seldom came across a mortgage I couldn’t work out.”
In Judge Soud’s court, I come across a shining example of this mindless rush to foreclosure when I meet Natasha Leonard, a single mother who bought a house in 2004 for $97,500.
Right after closing on the home, Leonard lost her job. But when she tried to get a modification on the loan, the bank’s offer was not helpful.
“They wanted me to pay $1,000,” she says. Which wasn’t exactly the kind of modification she was hoping for, given that her original monthly payment was $840.
“You’re paying $840, you ask for a break, and they ask you to pay $1,000?” I ask.
“Right,” she says.
Leonard now has a job and could make some kind of reduced payment. But instead of offering loan modification, the bank’s lawyers are in their fourth year of doggedly beating her brains out over minor technicalities in the foreclosure process.
That’s fine by the lawyers, who are collecting big fees.
And there appears to be no human being at the bank who’s involved enough to issue a sane decision to end the costly battle.
“If there was a real client on the other side, maybe they could work something out,” says Charney, who is representing Leonard.
In this lunatic bureaucratic jungle of securitized home loans issued by transnational behemoths, the borrower-lender relationship can only go one of two ways: full payment, or total war.
Watch the video, made for the purpose of public interest as congress aligns with ochlocracy.@SenatorDurbin @ewarren @uscourts @WSJopinion @ReutersLegal @netflix @IMDb #SCOTUS pic.twitter.com/8RLKSaGvhM
— LawsInTexas (@lawsintexasusa) December 2, 2021
The extreme randomness of the system is exemplified by the last case I see in the rocket docket.
While most foreclosures are unopposed, with homeowners not even bothering to show up in court to defend themselves, a few pro se defendants — people representing themselves — occasionally trickle in.
At one point during Judge Soud’s proceeding, a tallish blond woman named Shawnetta Cooper walks in with a confused look on her face.
A recent divorcee delinquent in her payments, she has come to court today fully expecting to be foreclosed on by Wells Fargo. She sits down and takes a quick look around at the lawyers who are here to kick her out of her home.
“The land has been in my family for four generations,” she tells me later. “I don’t want to be the one to lose it.”
Judge Soud pipes up and inquires if there’s a plaintiff lawyer present; someone has to lop off this woman’s head so the court can move on to the next case.
But then something unexpected happens: It turns out that Kessler is supposed to be foreclosing on her today, but he doesn’t have her folder.
The plaintiff, technically, has forgotten to show up to court.
Just minutes before, I had watched what happens when defendants don’t show up in court: kerchunk! The judge more or less automatically rules for the plaintiffs when the homeowner is a no-show.
But when the plaintiff doesn’t show, the judge is suddenly all mercy and forgiveness. Soud simply continues Cooper’s case, telling Kessler to get his shit together and come back for another whack at her in a few weeks.
Having done this, he dismisses everyone.
Stunned, Cooper wanders out of the courtroom looking like a person who has stepped up to the gallows expecting to be hanged, but has instead been handed a fruit basket and a new set of golf clubs.
I follow her out of the court, hoping to ask her about her case. But the sight of a journalist getting up to talk to a defendant in his kangaroo court clearly puts a charge into His Honor, and he immediately calls Cooper back into the conference room.
Then, to the amazement of everyone present, he issues the following speech:
“This young man,” he says, pointing at me, “is a reporter for Rolling Stone. It is your privilege to talk to him if you want.” He pauses. “It is also your privilege to not talk to him if you want.”
I stare at the judge, open-mouthed. Here’s a woman who still has to come back to this guy’s court to find out if she can keep her home, and the judge’s admonition suggests that she may run the risk of pissing him off if she talks to a reporter.
Worse, about an hour later, April Charney, the lawyer who accompanied me to court, receives an e-mail from the judge actually threatening her with contempt for bringing a stranger to his court.
Noting that “we ask that anyone other than a lawyer remain in the lobby,” Judge Soud admonishes Charney that “your unprofessional conduct and apparent authorization that the reporter could pursue a property owner immediately out of Chambers into the hallway for an interview, may very well be sited [sic] for possible contempt in the future.”
Let’s leave aside for a moment that Charney never said a word to me about speaking to Cooper.
And let’s overlook entirely the fact that the judge can’t spell the word cited.
The key here isn’t this individual judge — it’s the notion that these hearings are not and should not be entirely public. Quite clearly, foreclosure is meant to be neither seen nor heard.
After Soud’s outburst, Cooper quietly leaves the court.
Once out of sight of the judge, she shows me her file. It’s not hard to find the fraud in the case.
For starters, the assignment of mortgage is autographed by a notorious robo-signer — John Kennerty, who gave a deposition this summer admitting that he signed as many as 150 documents a day for Wells Fargo.
In Cooper’s case, the document with Kennerty’s signature on it places the date on which Wells Fargo obtained the mortgage as May 5th, 2010. The trouble is, the bank bought the loan from Wachovia — a bank that went out of business in 2008.
All of which is interesting, because in her file, it states that Wells Fargo sued Cooper for foreclosure on February 22nd, 2010.
In other words, the bank foreclosed on Cooper three months before it obtained her mortgage from a nonexistent company.
There are other types of grift and outright theft in the file.
As is typical in many foreclosure cases, Cooper is being charged by the bank for numerous attempts to serve her with papers.
But a booming industry has grown up around fraudulent process servers; companies will claim they made dozens of attempts to serve homeowners, when in fact they made just one or none at all. Who’s going to check?
The process servers cover up the crime using the same tactic as the lenders, saying they lost the original summons.
From 2000 to 2006, there was a total of 1,031 “affidavits of lost summons” here in Duval County; in the past two years, by contrast, more than 4,000 have been filed.
LIT respectfully wishes to remind y’all over there at Congress – you are now fully aware of the poison and ochlocracy pervading Texas Federal Courts, incl. Circuit COA5, incl. the #SB8 debacle and the @WSJ article re failure to recuse/disclose and much more. Please ACT NOW. pic.twitter.com/GKtTuzJNev
— LawsInTexas (@lawsintexasusa) November 4, 2021
Cooper’s file contains a total of $371 in fees for process service, including one charge of $55 for an attempt to serve process on an “unknown tenant.”
But Cooper’s house is owner-occupied — she doesn’t even have a tenant, she tells me with a shrug.
If Mark Kessler had had his shit together in court today, Cooper would not only be out on the street, she’d be paying for that attempt to serve papers to her nonexistent tenant.
Cooper’s case perfectly summarizes what the foreclosure crisis is all about.
Her original loan was made by Wachovia, a bank that blew itself up in 2008 speculating in the mortgage market. It was then transferred to Wells Fargo, a megabank that was handed some $50 billion in public assistance to help it acquire the corpse of Wachovia.
And who else benefited from that $50 billion in bailout money?
Billionaire Warren Buffett and his Berkshire Hathaway fund, which happens to be a major shareholder in Wells Fargo.
It was Buffett’s vice chairman, Charles Munger, who recently told America that it should “thank God” that the government bailed out banks like the one he invests in, while people who have fallen on hard times — that is, homeowners like Shawnetta Cooper — should “suck it in and cope.”
Look: It’s undeniable that many of the people facing foreclosure bear some responsibility for the crisis. Some borrowed beyond their means. Some even borrowed knowing they would never be able to pay off their debt, either hoping to flip their houses right away or taking on mortgages with low initial teaser rates without bothering to think of the future.
The culture of take-for-yourself-now, let-someone-else-pay-later wasn’t completely restricted to Wall Street. It penetrated all the way down to the individual consumer, who in some cases was a knowing accomplice in the bubble mess.
But many of these homeowners are just ordinary Joes who had no idea what they were getting into. Some were pushed into dangerous loans when they qualified for safe ones.
Others were told not to worry about future jumps in interest rates because they could just refinance down the road, or discovered that the value of their homes had been overinflated by brokers looking to pad their commissions.
And that’s not even accounting for the fact that most of this credit wouldn’t have been available in the first place without the Ponzi-like bubble scheme cooked up by Wall Street, about which the average homeowner knew nothing — hell, even the average U.S. senator didn’t know about it.
At worst, these ordinary homeowners were stupid or uninformed — while the banks that lent them the money are guilty of committing a baldfaced crime on a grand scale.
These banks robbed investors and conned homeowners, blew themselves up chasing the fraud, then begged the taxpayers to bail them out.
And bail them out we did:
We ponied up billions to help Wells Fargo buy Wachovia, paid Bank of America to buy Merrill Lynch, and watched as the Fed opened up special facilities to buy up the assets in defective mortgage trusts at inflated prices.
And after all that effort by the state to buy back these phony assets so the thieves could all stay in business and keep their bonuses, what did the banks do?
They put their foot on the foreclosure gas pedal and stepped up the effort to kick people out of their homes as fast as possible, before the world caught on to how these loans were made in the first place.
Why don’t the banks want us to see the paperwork on all these mortgages?
Because the documents represent a death sentence for them.
According to the rules of the mortgage trusts, a lender like Bank of America, which controls all the Countrywide loans, is required by law to buy back from investors every faulty loan the crooks at Countrywide ever issued.
Think about what that would do to Bank of America’s bottom line the next time you wonder why they’re trying so hard to rush these loans into someone else’s hands.
When you meet people who are losing their homes in this foreclosure crisis, they almost all have the same look of deep shame and anguish.
Nowhere else on the planet is it such a crime to be down on your luck, even if you were put there by some of the world’s richest banks, which continue to rake in record profits purely because they got a big fat handout from the government.
That’s why one banker CEO after another keeps going on TV to explain that despite their own deceptive loans and fraudulent paperwork, the real problem is these deadbeat homeowners who won’t pay their fucking bills.
And that’s why most people in this country are so ready to buy that explanation.
Because in America, it’s far more shameful to owe money than it is to steal it.
YOUR DONATION(S) WILL HELP US:
Don’t Show Us The Note, Give Us The Note
We hold that MTGLQ as assignee and substituted plaintiff is authorized to receive the original note and mortgage from the court file.
The issue before us is whether Appellant MTGLQ Investors can retrieve the original note and mortgage from the court file of a foreclosure action the trial court dismissed without a merits disposition.
MTGLQ was an assignee and substituted plaintiff in that action, and moved for release of the documents, but the trial court denied the motion.
We hold that on the facts presented, MTGLQ can retrieve the original note and mortgage.
I. Foreclosure Proceedings.
Appellee, the Borrower, entered into a $417,000 purchase-money mortgage and note in June 2007, securing his acquisition of a residential condominium in Pensacola. He defaulted on his payments less than two years later, failing to make the April 2009 payment or, as far as our record shows, any other payments in the nearly twelve years since.
The original lender sued for foreclosure in 2009, but dismissed that proceeding without resolution.
JPMorgan Chase Bank filed the present foreclosure action in 2013, alleging a default date of April 1, 2009 and ongoing default thereafter.
The complaint alleged that the Federal National Mortgage Association (FNMA) owned the note, and that JPMorgan as the loan servicer and holder was authorized to bring the foreclosure action.
JPMorgan filed the original note and mortgage in 2013. The original note had an allonge with a blank indorsement.
In 2014, JPMorgan filed a verified motion to substitute FNMA as plaintiff.
This motion asserted that JPMorgan had transferred to FNMA the right to enforce the subject loan, FNMA was the real party in interest, and no party would be prejudiced.
Borrower did not object, and the trial court granted the motion.
In 2016, FNMA assigned to MTGLQ the mortgage and “the certain note(s) described therein.”
FNMA recorded the assignment. FNMA also executed a power of attorney giving MTGLQ “full power and authority” to take any action that FNMA could take with respect to “mortgage loans, deeds of trust, promissory notes and allonges.”
In 2018, MTGLQ moved to substitute itself as plaintiff in the foreclosure action, attaching a copy of the recorded assignment from FNMA.
Again, Borrower did not object to the substitution of plaintiff, and the trial court granted this motion.
The trial court initially scheduled trial for August 13, 2018; then continued it to December 3, 2018.
MTGLQ amended its witness list five days before trial, asserting that the witnesses who would testify had changed (though the testimony would not).
Although Borrower had not deposed the earlier-named witnesses, the trial court dismissed the case with prejudice after the late amendment.
Early in 2019, MTGLQ filed a motion and then an amended motion to retrieve from the court file the original mortgage and the original note with its allonge, citing Florida Rule of Judicial Administration 2.430(h).
This rule provides that courts have ongoing authority “to release exhibits or other parts of court records that are the property of the person or party initially placing the items in the court records.”
MTGLQ argued that it was entitled to the original note and mortgage on two grounds.
The first was its status as substituted plaintiff in the foreclosure action.
The second was the September 8, 2016 assignment from FNMA reciting that it assigned the mortgage to MTGLQ “together with the certain note(s) described therein.”
Borrower argued that no right to enforce the note survived this Court’s dismissal of MTGLQ’s appeal from the trial court’s order dismissing the foreclosure action.
Borrower also argued that MTGLQ could not obtain the note in any event because it was not the original plaintiff and could not establish a chain of ownership.
Borrower argued that a substituted plaintiff does not necessarily own the note or have standing to enforce it.
The trial court held a telephonic hearing, and orally denied MTGLQ’s motion.
No court reporter recorded the hearing.
MTGLQ moved for reconsideration, noting the court’s oral denial.
The parties argued their positions at a second, transcribed hearing.
Borrower’s attorney asserted that he had located a public record in which FNMA rescinded a June 23, 2014 assignment of the mortgage (not the note) to JPMorgan. Borrower did not give MTGLQ prior notice or a copy of this document, and did not enter it into evidence—but he has included it in his appendix here.
Borrower argued that to remove the original note and mortgage from the court file and give MTGLQ physical possession of them would make MTGLQ a holder in possession, thus giving MTGLQ more rights than it had during the foreclosure suit.
Borrower claimed this would prejudice him.
Borrower also argued that it was not necessary to remove the original note and mortgage from the court file, because “someone” who might file another foreclosure action could simply reference the filed documents.
The trial court rendered the unelaborated order on appeal, stating “Plaintiff’s Motion to Return Original Loan Documents is DENIED.”
MTGLQ timely appealed.
II. Legal Analysis.
A. Jurisdiction and Standard of Review.
We have jurisdiction over the order denying MTGLQ’s motion to remove the original note and mortgage from the court file. Fla. R. App. P. 9.130(a)(3)(C)(ii) (recognizing jurisdiction to review non-final orders determining the right to immediate possession of property). The issues raised are questions of law, for which our review is de novo. See Wells Fargo Bank, N.A. v. Ousley , 212 So. 3d 1056, 1057 (Fla. 1st DCA 2016).
B. Rights of a Substituted Plaintiff.
On appeal, MTGLQ continues to argue it has the right to obtain the original documents, either as substituted plaintiff or as assignee of the note and mortgage. MTGLQ argues it need not prove previous physical possession of the documents.
Borrower acknowledges that the court can release the original documents to a substituted plaintiff that is a holder in possession, or a nonholder in possession that has the rights of a holder.
Borrower argues that MTGLQ is neither of those, and that MTGLQ’s status as substituted plaintiff is insufficient to authorize it to obtain the original documents from the court file.
Borrower further argues that giving MTGLQ the documents will prejudice him. We reject both arguments.
The core issue on appeal is whether an assignee that becomes a substituted plaintiff in a foreclosure action can retrieve an original note and mortgage from the court file after the court dismisses the case without entering a merits judgment.
Courts have general authority to “release exhibits or other parts of court records that are the property of the person or party initially placing the items in the court records.” Fla. R. Jud. Admin. 2.430(h).
We conclude that MTGLQ is entitled to receive the original loan documents from the court file for several reasons.
Significantly, notes are different from most documents in court files, because notes are negotiable instruments.
See § 673.2011, Fla. Stat. (defining negotiation of instruments).
Notes do not belong to the court, nor do they belong to the borrower.
See U.S. Bank Nat’l Ass’n v. Rodriguez , 256 So. 3d 882, 884–85 (Fla. 4th DCA 2018) (recognizing that original notes remain negotiable instruments after entering court file).
In Rodriguez , parties to a foreclosure action entered an agreed order to keep the note in the court file after a non-merits dismissal against the original foreclosure plaintiff. 256 So. 3d at 882.
Several years later, a substituted plaintiff sought to remove the loan documents.
The Fourth District held that because no judgment had cancelled the note or taken it out of the stream of commerce,
“it should be returned … if judgment is not entered in a foreclosure case, as it does not belong to the court and it remains negotiable and valuable to its holder.” 256 So. 3d at 884.
Here, Borrower’s argument against giving MTGLQ the documents would defeat the note’s negotiability, since there is no other party to the foreclosure action that could remove them for further negotiation.
Other courts also have held that foreclosure plaintiffs are entitled to remove original loan documents from the court file even without proving entitlement to foreclose.
See, e.g., Santiago v. U.S. Bank Nat’l Ass’n as Tr. for Banc of Am. Funding Corp. , 257 So. 3d 1145, 1147–48 (Fla. 5th DCA 2018) (“Whether a party is entitled to foreclose the note and mortgage is not relevant to its right to have the note released from the court records.”);
Kajaine Estates, LLC, v. U.S. Bank Nat’l Ass’n , 198 So. 3d 1010, 1011 (Fla. 5th DCA 2016) (requiring trial court to release original note to plaintiff that had failed to prove predecessor’s standing, and finding that proof of standing is “not relevant” to releasing the note).
The note is property, a valuable negotiable instrument, and MTGLQ as plaintiff is entitled to remove it from the court file.
(2) Transferability and Assignment.
Beyond the negotiability problem, Borrower’s arguments are contrary to settled principles of transferability and the rights of transferees.
The law allows assignment and transfer of both notes and mortgages. See § 701.01, Fla. Stat. (authorizing subsequent assignees and transferees of mortgages, as well as original mortgagees, to assign and transfer such mortgages, and providing that all such persons, assigns, and subsequent assignees have all lawful rights of the original mortgagee to foreclose and “for the recovery of the money secured thereby”).
MTGLQ filed the assignment and power of attorney documents from FNMA, which on their face gave MTGLQ all of FNMA’s rights in the mortgage and note.
The court properly substituted MTGLQ as plaintiff based on these documents.
See Fla. R. Civ. P. 1.260(c) (“In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party.”).
Borrower as the debtor under a promissory note remains obligated to the party entitled to enforce the note. See § 673.4121(1), Fla. Stat. (obligating issuer of a note to pay according to its terms “at the time it first came into possession of a holder”).
On this record, MTGLQ is a “person entitled to enforce” the note under section 673.3011.
This section defines that status as including “[t]he holder of the instrument” and “[a] nonholder in possession of the instrument who has the rights of a holder.” § 673.3011(1), (2), Fla. Stat.
This section also states that a person may be entitled to enforce an instrument without being its owner. § 673.3011, Fla. Stat. Under section 673.2013, MTGLQ is a transferee of the note and mortgage because it received the right to enforce it, which “vests in the transferee any right of the transferor to enforce the instrument, including any right as a holder in due course,” absent fraud or illegality. § 673.2031(2), Fla. Stat.
MTGLQ as transferee would not have to prove previous physical possession of the note to have the rights of a holder. Constructive possession in the form of the authority to exercise control is sufficient.
Deutsche Bank Nat’l Tr. Co. v. Noll , 261 So. 3d 656, 658 (Fla. 2d DCA 2018).
MTGLQ therefore has the rights of a holder, and it is entitled to obtain the loan documents from the court file. See also Kajaine , 198 So. 3d at 1011 (holding court should release note to transferee under valid assignment).
(3) Standing in the shoes of original plaintiff.
In addition, once the court enters an order substituting a new party in the place of the earlier plaintiff, the substituted plaintiff stands in the shoes of the original plaintiff.
See Wilmington Tr. v. Moon , 238 So. 3d 425, 428 (Fla. 5th DCA 2018) (“In the case of a substituted plaintiff, the substituted plaintiff may rely on the standing (if any) of the original plaintiff at the time the case was filed. … Significantly, there is no requirement that a substituted plaintiff must prove its standing at the time of the substitution.”);
see also Wilmington Sav. Fund Soc’y, FSB v. Stevens , 290 So. 3d 115, 118 (Fla. 4th DCA 2020) (noting substituted plaintiff has the right to obtain the original note by moving for its release from the court file);
Spicer v. Ocwen Loan Servicing, LLC , 238 So. 3d 275 (Fla. 4th DCA 2018) (holding substituted plaintiff had constructive possession of the original note because it was in the court file of the case when the new plaintiff came in, and was necessary for proof of standing at trial).
(4) No prejudice.
Borrower nevertheless argues that he will be prejudiced if MTGLQ gets the original note. The Fifth District rejected an argument similar to Borrower’s in PMT NPL Financing 2015-1 v. Centurion Systems, LLC , 257 So. 3d 516 (Fla. 5th DCA 2018).
Recognizing the right of a substituted plaintiff to have physical possession of original loan documents the original plaintiff had filed, the court aptly observed that a substituted plaintiff inevitably must have physical possession to authenticate the loan documents and enter them into evidence at trial. See id. at 518–19.
Otherwise, the substituted plaintiff could never meet its obligation to prove standing at enforcement. At a minimum, and in addition to the reasoning already discussed, MTGLQ as substituted plaintiff has the right to possess the note to prove standing if it goes to trial.
It receives no greater right upon removing the loan documents from the court file.
It can then elect to foreclose again, or to transfer the negotiable instrument to another entity that may foreclose.
In either case, Borrower retains his defenses and procedural rights.
In sum, a substituted plaintiff becomes a holder entitled to receive payments under the note and entitled to pursue remedies for nonpayment, including foreclosure.
A substituted plaintiff is not required to prove that it previously had physical possession of the original note, in order to have holder status.
Thus, MTGLQ’s receipt of the original documents will not add to its rights or prejudice Borrower.
If MTGLQ or any other party files a new foreclosure action, or if more than one entity attempts to foreclose on the same note, Borrower’s defenses remain intact.
C. Rejecting Borrower’s Other Arguments.
(1) The Purported Rescission.
Borrower argues FNMA’s transfer to MTGLQ was ineffective because FNMA purportedly rescinded assignment of the mortgage to JPMorgan, making it impossible for JPMorgan to have assigned the mortgage back to FNMA before FNMA assigned both note and mortgage to MTGLQ.
We reject this argument because Borrower failed to prove it.
This case had been set for trial twice, but Borrower raised this argument only orally and for the first time at the reconsideration hearing.
He did not give MTGLQ advance notice, and he did not authenticate the document or enter it into evidence. This was improper.
A court cannot rely on unsworn argument of counsel and an unauthenticated document to determine the substantive rights of an opposing party—neither is competent evidence.
See, e.g. , Shaffer v. Deutsche Bank Nat’l Tr. , 235 So. 3d 943, 946 (Fla. 2d DCA 2017) (Villanti, C.J., concurring specially) (collecting cases holding that documents not authenticated or entered into evidence are “not properly before the court and cannot constitute evidence” as to a legal issue before the court);
Chase Home Loans LLC v. Sosa , 104 So. 3d 1240, 1241 (Fla. 3d DCA 2012) (“[U]nsworn representations of counsel about factual matters do not have any evidentiary weight in the absence of a stipulation.”).
(2) Lack of a Transcript.
We also reject Borrower’s argument that we must affirm without addressing the merits because MTGLQ did not get a transcript of the initial telephone hearing.
Borrower misplaces his reliance on Applegate v. Barnett Bank of Tallahassee, Inc. , 377 So. 2d 1150, 1152 (Fla. 1979).
Applegate holds that lack of a transcript can prevent meaningful appellate review. It does not mean that absence of a transcript is always fatal to an appeal.
Instead, the issue is whether the appeal turns on dispositive questions of fact that were, or could have been, established only in the proceedings not transcribed.
That is not the case here, where Borrower does not assert that any dispositive question of fact was resolved at the initial, untranscribed telephonic hearing. To the contrary, Borrower’s counsel stated at the transcribed hearing on MTGLQ’s motion for reconsideration that “there is not anything that’s been presented new from the prior hearing.”
While that comment referenced legal arguments, Borrower also did not identify then, and has not identified here, any relevant and dispositive evidence or question of fact presented solely at the earlier untranscribed hearing.
The absence of that transcript is irrelevant.
(3) Procedural Objections to Reconsideration.
We likewise reject Borrower’s argument that we must affirm because MTGLQ’s motion for reconsideration was untimely or improper.
Borrower did not raise these arguments below, and the trial court did not address them.
Without deciding that Borrower’s arguments would have had any merit, we find that his participation in the hearing without objection constituted a waiver.
See Correa v. U.S. Bank N.A ., 118 So. 3d 952, 954 (Fla. 2d DCA 2013) (finding waiver of procedural objections where party proceeds at hearing without objection).
We hold that MTGLQ as assignee and substituted plaintiff is authorized to receive the original note and mortgage from the court file. We therefore reverse the order on appeal, and remand with instructions that the clerk of the lower tribunal securely transmit those original documents to counsel of record for MTGLQ.
REVERSED and REMANDED with instructions.
Osterhaus and Nordby, JJ., concur.
YOUR DONATION(S) WILL HELP US:
Rachel Nordby was appointed to the First District Court of Appeal on October 16, 2019 by Governor Ron DeSantis; she took office on October 23, 2019.
Before her appointment to the bench, Judge Nordby was a partner in the Tallahassee office of Shutts & Bowen LLP and served as Vice-Chair of the firm’s Appellate Practice Group. Before joining Shutts & Bowen, Judge Nordby served as the Senior Deputy Solicitor General for Florida Attorney General Pam Bondi. In this role, she represented the State, its agencies, and public officials in cases involving constitutional challenges and issues of statewide impact.
Before joining the Office of the Attorney General, Judge Nordby clerked for Judge Bradford L. Thomas on Florida’s First District Court of Appeal. Judge Nordby is a 2008 graduate of the Florida State University College of Law, where she served as Editor-in-Chief of The Florida State University Law Review and interned in the chambers of Florida Supreme Court Justice Harry Lee Anstead. She earned her undergraduate degree in Classical Studies, summa cum laude, from the University of Florida.
- Juris Doctor, magna cum laude, Florida State University College of Law, 2008
- Bachelor of Arts (Classical Studies), summa cum laude, University of Florida, 2003
Legal Offices & Positions:
- Judge, First District Court of Appeal, October 2019 to present
- Partner & Vice-Chair of Appellate Practice Group, Shutts & Bowen, September 2018–October 2019
- Florida Department of Legal Affairs, Office of the Solicitor General
- Senior Deputy Solicitor General, December 2017–September 2018
- Deputy Solicitor General, March 2012–December 2017
- Law Clerk, Judge Bradford Thomas, First District Court of Appeal, May 2008–October 2009
Honors & Awards
- Recognized by Florida Super Lawyers in its Appellate category (2019)
- Recognized by Florida Trend in Florida 500 (2019), an annual publication highlighting Florida’s 500 most influential business leaders
- Recognized by Florida Trend in its Legal Elite Government and Non-Profit Attorneys category (2016, 2017 & 2018)
Florida State University College of Law:
- Order of the Coif (class rank: 3 out of 314)
- Florida State University Law Review
- Editor-In-Chief, Vol. 35
- Notes & Comments Editor, Vol. 34
- Citation of Honor (2008)
- Best Overall Student Article (2008)
- Meritorious Service Award (2007)
- Journal of Land Use and Environmental Law
- Outstanding Subciter (2007, 2008)
- Florida Supreme Court Internship Program for Distinguished Florida Law Students
- Book Awards:
- (1) Florida, the Constitution & the Supreme Court
- (2) Topics in Appellate Practice
- (3) Legal Writing & Research II
- (4) Worker’s Compensation
- (5) Professional Responsibility
- (6) Natural Resources Law
- (7) Law & the Arts
- Dean’s List (every semester)
- Distinguished Pro Bono Service Award
- Phi Delta Phi (Legal Honor Society)
University of Florida:
- Phi Beta Kappa
- College of Liberal Arts & Sciences Hall of Fame
- Dean’s List
- Eta Sigma Phi (Classics Honor Society)
- Florida Bright Futures Scholarship
- Golden Key Honor Society
- Anderson Scholar
- Maria Marees Leadership Award
- Nutter Scholar
Judicial & Bar Activities:
- The Florida Bar, Member No. 56606
- Appellate Court Rules Committee, 2016 to present
- Parliamentarian 2018 to present
- Second Judicial Circuit Grievance Committee A, 2018–2019
- Continuing Legal Education Committee, 2013–2016
- Appellate Practice Section
- Government Lawyers Section
- Appellate Court Rules Committee, 2016 to present
- Judicial Management Council, Direct Appointment by Chief Justice Canady, March 2019–present
- First District Appellate Inn of Court, 2013–present
- Executive Committee, 2017–present
- Treasurer, 2019–2020
- Chair, Mentorship Committee, 2017–2019
- William H. Stafford Inn of Court, 2019–present
- Federalist Society for Law and Public Policy Studies, 2005 to present
- Tallahassee Lawyers Chapter Steering Committee, 2012 to present
- Vice President, FSU Student Chapter, 2006–2007
- Tallahassee Women Lawyers (Chapter of Florida Association of Women Lawyers), 2013 to present
- Director, 2014 Judicial Reception
- Secretary, 2015–2016
- President-Elect, 2016–2017
- President, 2017–2018
- Immediate Past-President, 2018–2019
- Statewide Nominating Commission for Judges of Compensation Claims, Direct Gubernatorial Appointee, March 2010–October 2019
- Panelist, Reflections from Year One on the Bench, Jacksonville Women Lawyers Association, Lunchtime CLE Webinar, July 2020
- Panelist, Judicial Perspective: Remote Oral Arguments, Appellate Practice Section, Lunchtime CLE Webinar, June 2020
- Presenter, 2019 Appellate Practice Section Monthly Webinar CLE Series,
Recurring Issues in Constitutional Litigation, April 2019
- Panelist, 2018 Annual Education Program of Florida Conference of District Court of Appeal Judges, Emerging Trends in the Practice of Law, September 2018
- Panelist, Practicing Before the Florida Supreme Court, Panel on Oral Argument, June 2018
- Panelist, Institute for Justice’s Center for Judicial Engagement, Practitioner Perspectives on the Judicial Duty, February 2018
- Panelist, First District Appellate Inn of Court, Florida’s Office of the Solicitor General: 20 Years, January 2018
- Moderator Introduction, The Federalist Society, 2017 Annual Florida Chapters Conference, Combatting Federal Overreach, February 2017
- Panelist, Appellate Practice Section Monthly Telephonic CLE, Reply Briefs, March 2016
- Panelist, Appellate Practice Section Tallahassee Outreach CLE, Reply Briefs, March 2016
- Guest Lecturer on Florida Supreme Court Review of Citizens Initiative Petitions, FSU Law School Course on Appellate Practice: The Florida Solicitor General’s Perspective, February 2016
- Moderator, Practicing Before the Florida Supreme Court, Panel on Discretionary Review, June 2014
- Panelist, Practicing Before the Florida Supreme Court, Panel Discussion on Briefs in Support and in Opposition to Requests for Discretionary Review; Ethics, June 2013
- Panelist, Practicing With Professionalism, Young Lawyer Professionalism Panel, Fall 2014 & Fall 2013
Articles & Publications:
- Florida’s Office of the Solicitor General: The First Ten Years, 37 Fla. St. U. L. Rev. 219 (2009)
- Off of the Pedestal and Into the Fire: How Phillips Chips Away at the Rights of Site-Specific Artists, 35 Fla. St. U. L. Rev. 167 (2007) (awarded best overall student article by Florida State University Law Review)
Judge Timothy Osterhaus was appointed to the First District Court of Appeal by Governor Rick Scott on May 20, 2013.
Before his appointment Judge Osterhaus served as the Solicitor General of Florida. As Florida’s SG, and as Deputy SG before that, he handled appeals on behalf of the State and its agencies in Florida’s district courts of appeal and in the Florida Supreme Court, as well in the federal courts, including in the United States Supreme Court. He also worked as counsel at the Florida Department of Education; worked in private practice in Washington, D.C.; and served as a law clerk to U.S. District Court Judge Kenneth Ryskamp in West Palm Beach (with a co-clerk who later became his wife).
Judge Osterhaus spent his childhood in South Florida, where he attended Westminster Christian School. After moving away from Florida with his family, he attended high school at Charlotte Christian School in North Carolina, before moving again and graduating from Bristol Tennessee High School in 1989.
Judge Osterhaus received his bachelor’s degree with highest honors from King College (Bristol, Tenn.) in 1993, and his law degree from the University of Virginia in 1997.
J.D. 1988, University of Florida College of Law, Law Review Editor-in-Chief; B.A. Communications 1980, Freed-Hardeman University, Henderson, TN, magna cum laude.
Legal Offices & Positions:
Judge, First District Court of Appeal, April 2015 – present; Kelsey Appellate Law Firm, P.A., 2007 – 2015 (solo appellate practice); Anchors Smith Grimsley, P.L. Litigation Group, 2005 – 2007; Holland & Knight LLP, 1988 – 2005.
Honors & Awards:
Best Lawyers In America, 2013-14; Florida Super Lawyers, 2006-15; Florida Legal Elite, 2004-11, 2015; Bar Register of Preeminent Women Lawyers, 2013; Martindale-Hubbell AV rating, 2000-present; Pro Bono Award co-recipient, The Florida Bar Appellate Practice Section, 2004; Award for Outstanding Contribution by an Attorney to the Guardian Ad Litem program, Second Judicial Circuit, Leon County, Florida, 1990; Leadership Tallahassee Class 8 graduate, 1991.
Judicial & Bar Activities:
First District Appellate American Inn of Court: President and Master, 2009-10, and Executive Committee Officer and Master member, 2008-16; Member, The Florida Bar Appellate Practice Section and past member, The Florida Bar General Practice, Small Firm and Solo Practice Section; Vice Chair, The Florida Bar Appellate Rules Committee, 1999-2004, Subcommittees: Administrative Practice, Transition/Term Limits (chair); University of Florida Law Review Editor in Chief, summer & fall 1987; Title Standards Editor, spring 1987; Assistant Research Editor, 1986-87; UF College of Law Legal Research & Writing Instructor, 1987-88; Florida Blue Key 1987-88.
Articles & Publications:
Improving Appellate Oral Arguments Through Tentative Opinions and Focus Orders, The Florida Bar Journal (December 2014); Florida Appellate Practice, Jurisdiction and Review (The Florida Bar, 6thed. 2006); Florida Appellate Practice Guide, Jurisdiction (The Florida Bar, 2002/03 ed.) (rewritten); The New & Improved APA: Another Question Answered, The Florida Bar Admin. L. S. Newsletter (Dec. 2001); The New And Improved APA: Three Questions, Three Answers, The Florida Bar Admin. L. S. Newsletter (Mar. 2001); The Hidden Diversity, Florida Association of Women Lawyers’ Journal (Spring 2001); The Record on Appeal: The Foundation for Appellate Review, Florida Association of Women Lawyers’ Journal (Winter 2000); Revising the Role of the Florida Supreme Court in Constitutional Initiatives, The Florida Bar J. (April 1997).
Judge Jill Pryor on a Panel about Judicial Recusals? That’s a Contradiction, Right There.
Judge Cooke has a conflict of interest based on her financial statements, which revealed interests in companies doing business with one of the defendants.
United States Court of Appeals
For the Eleventh Circuit
JAMES BUCKMAN, MAURICE SYMONETTE,
LANCASTER MORTGAGE CO.,
DEUTSCHE BANK NATIONAL TRUST CO.,
as Trustee under the pooling and servicing agreement series rast 2006-A8,
SECURITY AND EXCHANGE COMMISSION,
ONE WEST BANK, et al.,
OCT 7, 2021 | REPUBLISHED BY LIT: OCT 7, 2021
Appeal from the United States District Court for the Southern District of Florida
D.C. Docket No. 1:19-cv-24184-MGC
Before JILL PRYOR, BRANCH, and LUCK, Circuit Judges. PER CURIAM:
James Buckman and Maurice Symonette (“Buckman and Symonette”) appeal from the district court’s dismissal with prejudice of their second amended complaint as an impermissible shotgun pleading.
They argue that the district court erred and demonstrated bias by dismissing their case because they had filed a motion for an additional three-day extension of time and the district court provided a window for responses to the motion by the defendants, but then dismissed the case before the responses were due.1
After review, we affirm.
In October 2019, Buckman and Symonette filed a pro se 45-page complaint against eight defendants including numerous banks, a mortgage company, the Security and Exchange Commission, the U.S. Treasury, and other entities, raising numerous claims including:
(1) quiet title;
(2) slander of title;
(3) unjust enrichment;
(4) violations of the Real Estate Settlement Procedures Act;
(5) fraud and concealment;
(6) violation of timely assignment and lack of consideration;
(7) various violations of several Florida statutes.
Thereafter, in December 2019, Buckman and Symonette filed a 51-page amended complaint asserting a total of 11 causes of action.
On July 24, 2020, the district court, sua sponte, struck the amended complaint as an impermissible shotgun pleading.
The district court set forth the pleading rules in its order, and provided that the plaintiffs had until July 31, 2020 to file a second amended complaint.
The district court emphasized that, in the second amended complaint, Plaintiffs are required to make a “short and plain statement of the claim showing that the pleader is entitled to relief . . .”
Fed. R. Civ. P. 8(a).
Plaintiffs must also state each theory of liability separately “in numbered paragraphs, each limited as far as practicable to a single set of circumstances.”
Fed. R. Civ. P. 10(b).
The newly amended complaint should clearly delineate which factual allegations and cited laws are relevant to the asserted cause of action.
This includes specifying which Defendant is liable under each cause of action and which Defendant is implicated in each factual allegation.
Failure to comply with this Order may result in the dismissal of this case with prejudice or other appropriate sanctions.
On July 31, 2020, the plaintiffs filed a motion for an extension of time to file their second amended complaint. The district court granted the motion and ordered that the second amended com- plaint be filed on or before August 6, 2020.
On August 6, 2020, the plaintiffs filed a motion seeking three more days to file their second amended complaint. On the same date, after filing their extension motion, they filed their second amended complaint.
The 92-page second amended complaint added 4 new causes of action and suffered from many of the same issues as the first amended complaint.
On August 17, 2020, the district court dismissed with prejudice the second amended complaint explaining that the second amended complaint “does not cure the defects that required striking of the initial Complaint.”
This appeal followed.2
Buckman and Symonette argue that the district court erred and demonstrated bias when it dismissed their case with prejudice while their motion for extension of time was pending.
Specifically, they argue that the district court docketed their motion for a three- day extension of time to file the second amended complaint and set “responses due by 8/20/2020,” but then dismissed the case before that date.
They also raise arguments related to the merits of their underlying claims.
The district court did not err in dismissing the case. On the day the second amended complaint was due, Buckman and Symonette filed the request for a three-day extension of time, but they then filed a second amended complaint the same day.
The filing of the second amended complaint on the day it was due mooted the motion for an extension of time and the related re- sponse period.
Once the second amended complaint was filed, there was nothing left for the district court to do except review the complaint to determine whether the plaintiffs corrected the previously identified pleading issues.
To the extent that Buckman and Symonette’s brief could be liberally construed as challenging the district court’s dismissal of the second-amended complaint as an impermissible shotgun pleading, we review the district court’s decision for abuse of discretion.
Barmapov v. Amuial, 986 F.3d 1321, 1324 (11th Cir. 2021); see also Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998)
(“Pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed.”).
“A shotgun pleading is a complaint that violates either Federal Rule of Civil Procedure 8(a)(2) or Rule 10(b), or both.”
Barmapov, 986 F.3d at 1324.
Rule 8 requires that the complaint set forth “a short and plain statement of the claim” demonstrating an entitlement to relief, and Rule 10 requires that a plaintiff “state [his] claims in numbered paragraphs, each limited as far as practicable to a single set of circumstances.”
Fed. R. Civ. P. 8(a)(2) and 10(b).
Rule 10 further provides that each claim be stated in separate counts “[i]f doing so would promote clarity.” Id. R. 10(b).
We have repeatedly condemned the use of shotgun pleadings.
See Barmapov, 986 F.3d at 1324; Magluta v. Samples, 256 F.3d 1282, 1284 (11th Cir. 2001).
When a plaintiff files a shotgun pleading, a district court must give him one chance to replead before dismissing his case with prejudice on shotgun pleading grounds.
Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291, 1295–96 (11th Cir. 2018).
The district court should explain how the pleading violated the shotgun rule so that the plaintiff can remedy his next pleading.
Where, as here, the plaintiff is provided fair notice of the specific defects in his complaint and a meaningful chance to fix it but fails to correct the defects, the district court does not abuse its discretion by dismissing with prejudice on shotgun pleading grounds.
Jackson v. Bank of Am., N.A., 898 F.3d 1348, 1358–59 (11th Cir. 2018).
Accordingly, the district court did not abuse its discretion in dismissing the second amended complaint with prejudice because Buckman and Symonette failed to correct the pleading defects.
Consequently, we affirm.
YOUR DONATION(S) WILL HELP US:
Acceleration2 years ago
Who is Catalina Azuero, a Liar Lawyer at Goodwin Procter LLP?
Bankruptcy2 years ago
Two Florida Foreclosure Lawyers Matt Fuqua and Clay Milton Commit the Most Abhorrent Act
Appellate Circuit2 years ago
Who is Liar Lawyer Sabrina Rose-Smith of Goodwin Procter, LLP?
Eleventh Circuit11 months ago
Operation Whiteout: Lyin’ Senior Judge Kenneth “Magic” Marra Tosses CFPB Claims
Appellate Circuit2 years ago
Former Florida Foreclosure Defense Lawyer Indicted
Eleventh Circuit1 year ago
Florida Insurance Defense Lawyer Curtis Lee Allen Faces Ethics Complaint Filed by the Florida Bar
Appellate Circuit1 year ago
Senate Judiciary and Code of Conduct Snubbed by Judges Lagoa and Luck as they Refuse to Recuse in Florida Voting Case
Appellate Circuit1 year ago
Democratic Members of the Senate Judiciary Have Suggested Judge’s Luck and Lagoa’s Non-Recusal Violates the Code of Conduct