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It's speed vs. skepticism for Fla. judges facing avalanche of foreclosure cases

By Brady Dennis
Washington Post Staff Writer
Friday, October 15, 2010; 12:11 AM

FORT LAUDERDALE - In a cramped, makeshift courtroom, Broward County Judge Victor Tobin was signing off on uncontested foreclosure cases as fast as a clerk could keep them coming, only a few seconds per file.

"Batter up," he said as he finished one stack and eyed the next. With scores of cases remaining on the day's "rocket docket" earlier this week and tens of thousands more awaiting judgment in this courthouse, there was little time to pause.

On the other side of the state, in a Sarasota County courtroom, another judge on a recent day was taking a dramatically different tack. Impatient with attorneys for lenders trying to seize hundreds of homes, fed up with their sloppy paperwork and errant practices, Judge Harry Rapkin dismissed 61 foreclosure cases in that single day - a quarter of those awaiting his approval. While the plaintiffs could re-file, it would mean hefty fees and significant delay.

These two approaches - one focused on speed, one brimming with skepticism - represent the choice confronting judges in Florida, with its backlog of a half-million cases, and increasingly across the United States as reports of problems with foreclosure filings mount.

Judges in Florida are under pressure to clear their foreclosure dockets; the state's crippled real estate market and its lagging economy cannot recover until cases work their way through the courts. Earlier this year, Florida's legislature allocated $9.6 million to help speed up the processing of foreclosures. Much of that money went to pay retired judges and case managers to help shoulder the load and quickly dispose of cases in special foreclosure courts.

But the recent reports about flawed and fraudulent filings - and a series of announcements by large lenders that they are freezing foreclosures - have given pause to some judges in Florida. While judges agree that speed remains important, some are warning that churning through cases so quickly could mean overlooking fraudulent documents and prematurely seizing homes, perhaps depriving borrowers of due process.

How judges in Florida, at the epicenter of the foreclosure crisis, strike a balance could presage how courts elsewhere in the country will grapple with the mortgage meltdown's latest challenge for homeowners, financial firms and the broader economy.

The 'rocket docket'

In Broward County, on Florida's east coast, the fifth-floor waiting area of the county courthouse has been converted to a courtroom for foreclosure cases. A clerk began a recent morning session by calling out the scores of cases on the day's calendar, the vast majority uncontested. A bailiff nodded off in his chair. Inmates from the county jail, shackled and on their way to criminal court, shuffled through the improvised courtroom.

At a wooden desk up front, Judge Tobin raced through the "rocket docket," signing unopposed foreclosure judgments for the better part of two hours.

The week was shaping up to be relatively light, court officials said. Two weeks ago, judges had dispensed with 900 cases. But as lenders came under fire for faulty paperwork, companies including Ally Financial, J.P. Morgan Chase and Bank of America hastily pulled cases from the dockets and the number last week fell to about 300.

Down the hall, attorneys for the small minority of homeowners contesting seizures pleaded their cases in courtrooms 518 and 519. The attorneys cited faulty notarizations, questionable signatures, missing assignments on the part of lenders trying to foreclose. They argued that the sloppy paperwork had resulted in a broken chain of title, that lenders didn't have legal standing to seize homes.

"There are federal investigations going on!" one defense attorney said to a judge as he argued about the legitimacy of a foreclosure affidavit.

"They have to do it right," another attorney implored as he asked for his case to be dismissed. "We're here to be the gatekeepers."

Allegations of wrongdoing in Broward Country and elsewhere continued to mount this week. A lawyer from Deerfield Beach unveiled depositions that he said showed that financial firms and mortgage servicers hired people with no knowledge of the mortgage process and installed them as "foreclosure experts" to "robo-sign" thousands of filings, paying little attention to the accuracy of the documents and at times forging signatures, backdating documents and misusing notary stamps.

The judges in 518 and 519, who had come out of retirement to hear foreclosure cases and help clear the backlog, listened to the arguments politely. They had heard these pleas before. But without definitive evidence of fraud, the judges told the attorneys, the foreclosure would go forward.

So it went, one after another.

Foreclosure defense attorney Hector Pena, shot down again after challenging the veracity of a foreclosure document, sighed with frustration in the hallway as the next case went forward inside Courtroom 519.

"I'm here every day," Pena said. "It's like talking to a brick wall. . . . The banks themselves have slowed down, but not the judges. . . . They are robo-signers."

No rubber stamp

J. Thomas McGrady, the chief judge for Florida's 6th Judicial Circuit, which represents two heavily populated counties around Tampa Bay on Florida's west coast, has been wrestling with how to achieve his aim of clearing the backlog while making sure justice is done.

"Two months ago, I would have said I thought we could make our goal," he said in an interview. "Now, I'm really wondering whether that will be able to happen. It's more important that we do them right than that we just get them off the books."

Some of the judges in his district have taken his admonition to heart. According to preliminary data compiled by state court officials, McGrady's district far outpaced others in the state in identifying foreclosure cases with problematic or insufficient paperwork.

"It's very obvious that there are serious problems," said Judge Lynn Tepper, who has presided over foreclosure cases in Pasco County, north of Tampa. She threw out one case this year after ruling that the bank perpetrated fraud by submitting backdated documents.

"I'm not there to grease it, to let anything slide," she said. "We need to be making sure these are done right."

In Sarasota County, a little farther down the west coast, Chief Judge Lee Haworth has also made clear he doesn't want judges simply rubber-stamping foreclosures. Yet he doesn't want defense attorneys for delinquent homeowners using technical flaws in paperwork to delay justified and inevitable foreclosures.

Haworth has tried to untangle the knot several ways. First, he had his special assistant send an "urgent message" to six "foreclosure mill" law firms - including at least two that are being investigated by the Florida attorney general for unfair and deceptive practices - chiding them for failing to provide proper documents and threatening to "start dismissing these cases" if they didn't shape up.

"Your lawyers have had ample opportunity to follow the rules and our office has made repeated efforts to educate and encourage voluntary compliance," the message said. "Your firm is among the worst offenders."

Haworth said he's also ensuring that cases on the "rocket docket" are examined closely by case managers before heading to the judge.

But in most cases, Haworth - like other judges - said he must accept that the documents lawyers file in court were prepared in good faith.

And he acknowledged that Florida's judges cannot afford to tarry.

"These neighborhoods are deteriorating in the interim," he said. "The properties need to get on the market to get sold. We're not going to sit on our hands. . . . We've got to keep a steady flow going."

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