There is a business model that requires the filing of Foreclosure lawsuits, and in overwhelming numbers. If you look in the dictionary, as they say, there is a picture of that next to the word "frivolous."
The model on which our Court system is built requires a case-by-case determination. (This is particularly true in an era in which class actions are disfavored.)
Proponents of the Frivolous Foreclosure Lawsuit model know this about the Court system's model. They know that filing Foreclosure Lawsuits in overwhelming numbers will likely make it easier for them to foreclose because otherwise their own lawsuits will threaten to overcome the Court system.
One of Florida's responses, for example, to the filing of an overwhelming number of Foreclosure Lawsuits, was to launch a so-called "rocket docket" for them. Foreclosure Lawsuits on the "rocket docket" would supposedly be handled quicker because retired Judges would be hired to set Hearings and resolve a greater number of Foreclosures, often in Lawsuits that were not contested. Now, the budget for the rocket docket in Florida is reportedly coming to an end. See "Demise of the Rocket Docket" in Beth Kassab, "What to Watch This Summer" p. 1, col. 4 (Orlando Sentinel "Central Florida Business" Section, Monday, June 6, 2011).
It is easy to predict that with the demise of the rocket docket in Florida, whatever its shortcomings and whatever its strengths, pressure will rise on the Court system to once again resolve the "backlog" of lawsuits that will descend upon Florida Judges. In fact, that was the reason for instituting a "rocket docket" for Foreclosure Lawsuits in the first place, to relieve the Court system of the pressure of a "backlog" of cases -- the vast majority of them being recently filed Foreclosure Lawsuits.
If the Court system does not take measures to again accommodate them, Plaintiffs in Foreclosure Lawsuits may also attend Court-ordered Mediations without any tangible inclination to settle the Foreclosures, ask the Courts to relax evidentiary rules, to shorten Hearing times, or to reduce Notice requirements, among other things. These things already appear to be happening in many reported cases. There is an irony here. Many of the Foreclosure Plaintiffs -- banks, large lenders -- object loudly to so-called "frivolous" lawsuits being filed by other people.
In light of the current situation, I plan a series of occasional posts on the issue. I want to reiterate how we got here, where we are now, and what can be done about this problem that affects the very existence of the System of Justice I have served throughout my professional career.
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