Florida Acknowledges Duty of Judges to Examine Faulty and Fraudulent Paperwork EVEN WHERE BORROWER DOESN'T SHOW UP

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Mark D Killian, Managing Editor of the Florida Bar News, says in the 1/1/11 issue: “An affidavit signed in California and notarized in Minnesota, is hard for a Judge to ignore — even when the foreclosure is uncontested.” He was referring to testimony to the Florida State Senate Banking and Insurance Committee in December, 2010. In short, the fraudulent nature of foreclosures all over the country is becoming readily apparent to the highest lawmakers, judges and agencies.

“The Judges said faulty and fraudulent documentation is the main cause of delays (e.s.), and the courts are bracing for an anticipated deluge of commercial foreclosures.” This is the first time that the Florida Bar, or any bar has conceded that the problem is with the banks, not the borrowers.

“Court officials also discussed the limitations of the Supreme Court ordered managed mediation program.” Thus the acknowledgment that mediation leads to more chaos when one of the parties never had standing to sue in the first place.

The big takeaway item here is that Judges are being directed to apply the law first, and then look at procedure. It is true that a default could be entered by virtue of the failure of the homeowner to respond to the initiation of foreclosure proceedings. But before that issue is reached, the it is incumbent upon the Judge to review the documentation to verify that the basic requirements of a prima facie case are present.

This is the essential difference between substantive and procedural law. Procedural law and rules seek to assure that persons have access to the courts and to make sure that every justiciable issue has an opportunity to be heard. But procedure does not trump substance. If someone doesn’t have a claim, and is a pretender, then despite the clerk’s default, the Judge should be dismissing the action rather than entering a default final judgment.

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