Loan Modification

What is a judge?s role in a foreclosure case?

By Chip Parker, Jacksonville Consumer Attorney

As a lawyer with 500 actively defended foreclosure cases throughout the state of Florida, I have argued every conceivable foreclosure issue before dozens of Florida judges.  Clients often ask me, and I often ask judges, ?What is the role of a judge in foreclosure cases??

Don?t get me wrong.  I know the answer, but over the years leading up to the foreclosure crisis, many judges sort of forgot why they were there. The role of a judge in the judicial process is to impartially enforce the rule of law, which is sometimes easier said than done.  Judges don?t want their dockets overloaded with contested foreclosure cases, and at the current rate of 11,000 foreclosures per month in the State of Florida, the bogging down of the judicial system is a real concern.

Prior to 2007, foreclosure mills and state court judges have allowed the rule of law to fall by the wayside.  However, though efforts by foreclosure defense attorneys like April Charney, judges have been force-fed reminders that fundamental principles of law matter more than crowded dockets. I can honestly say I have seen most of them rethink the way they handle foreclosure cases over the last three years.

Last week, New York Times journalist Amir Efrati wrote about judges delaying and dismissing foreclosures because of the plaintiff?s failure to provide proof of ownership of the right to foreclose.  The bottom line is that the mortgage servicers are bringing these foreclosure cases and clogging the courts, not the homeowners.  It is the CHOICE of the servicer to initiate legal proceedings, and quite frankly, if the servicer has done everything correctly leading up to the foreclosure, getting a judgment is a relatively simple process.

So, state court judges should demand that the servicer follow the law.  The laws of negotiable instruments ? the buying and selling of promissory notes ? have been around long before the founding of our country.  A judge?s failure to enforce these fundamental laws creates uncertainty in the marketplace.

Judges should never ?take sides? in any case but should enforce the rule of law.  Judges should never ask a homeowner, ?Have you made all your mortgage payments?? until he or she is certain that the plaintiff has proven it has the ?standing? to foreclose.  Only AFTER the plaintiff has proven ?standing,? the homeowner?s default under the terms of the promissory note become relevant.

Finally, if the plaintiff has proven its case, a final judgment should be entered against the homeowner and a sale date should be set about 30 days later.  A judge should never ?feel sorry? for a homeowner and should never delay a sale date without the plaintiff?s consent.

Justice is a two-way street, and neither homeowners nor servicers should expect a judge to manipulate the Scales of Justice.

Related posts:

1. Sarasota Florida Judge Berlin Slams The Foreclosure Door On Wamu!
2. Louisiana Bankruptcy Judge Sets Parameters for Calculation of Escrow Amounts Due When Bankrupcy Case is Filed
3. The real fight is in state court

Full post as published by Mortgage Law Network on December 28, 2009 (boomark / email).