ACLU to seek appeals court review of circuit foreclosure courts

Judge James Thompson, right, talks to a homeowner about her options before her foreclosure case heads to trial during docket soundings at the Lee County Courthouse on March 14, 2011. The hearings, nicknamed the Rocket Docket, are continuing in Lee County, but there are indications things are changing. Homeowner attorneys are venting about procedural issues, and more banks are submitting voluntary dismissals of cases to get their paperwork in order. Greg Kahn/Staff

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Judge James Thompson, right, talks to a homeowner about her options before her foreclosure case heads to trial during docket soundings at the Lee County Courthouse on March 14, 2011. The hearings, nicknamed the Rocket Docket, are continuing in Lee County, but there are indications things are changing. Homeowner attorneys are venting about procedural issues, and more banks are submitting voluntary dismissals of cases to get their paperwork in order. Greg Kahn/Staff

— Lawyers with the national ACLU will ask a Lakeland appeals court to pass judgment on the 20th Judicial Circuit’s foreclosure proceedings, the foundation announced Wednesday.

The New York-based organization will file a petition for a writ of certiorari with the Second District Court of Appeals on behalf of an unnamed Cape Coral resident on Thursday. The petition, a request that judges review a case in a lower court, will ask the appeals court to examine foreclosure courts in the circuit as a whole, issue a ruling and move the plaintiff’s case to a regular civil docket.

The writ alleges due process violations and “systemic deficiencies” in the foreclosure dockets that result in a loss of protection for homeowners.

The 20th Judicial Circuit is comprised of courts in Collier, Charlotte, Glades, Hendry and Lee counties.

The ACLU will hold a press conference on Thursday at the resident’s home, 2723 SW 17th Place, according to the release.

Property records list the home as belonging to Sean and Georgi Merrigan. The Merrigans were sued for foreclosure in March 2009 by Bank of New York Mellon, according to the Lee County Clerk of Courts website. Their next court appearance is scheduled for April 27.

A spokesman for the ACLU declined to elaborate on the petition, referring instead to Thursday’s press conference.

The foundation has previously criticized Lee County’s mass foreclosure docket, in which judges and magistrates handle scores of foreclosure cases daily. Some attorneys and homeowners say the docket’s speed violates state civil procedure and tramples homeowners’ due process rights. They complain cases are set for trial too quickly, that lender attorneys fail to participate in discovery and that contested facts are rarely explored.

“This is something we’ve been looking at closely for months, and we continue to have very serious concerns that those procedural safeguards are not being applied,” ACLU attorney Larry Schwartztol said.

Lee’s mass foreclosure docket, staffed with three retired judges, a pair of magistrates and a handful of support employees, was established in July 2010 with federal stimulus dollars awarded to the state and directed to courts by the Legislature. The funding, due to end at the beginning of July, has helped the court move through a case backlog of roughly 24,000 cases. As of March 2, the backlog stood at 9,688 cases.

Collier’s docket is staffed by Senior Circuit Judge Daniel Monaco and a magistrate.

Before the current docket’s creation in Lee County, foreclosures overwhelmed the circuit court’s regular civil tracks. In response, Lee Clerk of Court Charlie Green and Circuit Chief Judge Keith Cary established a special Friday docket, known as the “rocket docket,” in which lender attorneys brought forward uncontested cases intended for quick disposal. But some homeowners contested the cases, most offering their inability to pay as a lone defense.

As the rocket docket handled hundreds of cases each day, it drew national media attention, turning the Lee Circuit Court into a symbol of the foreclosure crisis and its expedited judicial proceedings.

Criticisms of the process grew last fall upon revelations of fraudulent documents in many foreclosure cases across the country. The presence of forged signatures, fake notaries and backdated assignments forced some banks to suspend their foreclosures, and it increased state and federal scrutiny on the lenders.

Some law offices also fell under scrutiny. On March 4, the David J. Stern firm of Plantation abandoned all of its active cases in the state, estimated at 100,000, due to an investigation by the Florida attorney general’s office.

Local attorneys have tried to draw attention to problems in the foreclosure dockets.

In January, Naples attorney Jack Breiden filed a similar petition to the Second District Court of Appeals, claiming a judge’s decision to set his case for trial despite the bank’s hesitation circumvented state civil procedure. The court rejected the petition.

Green and Cary have defended the dockets, as has one of its judges, Senior Circuit Judge Hugh Starnes.

“We’re attacked by everybody, accused by everybody, criticized by everybody, because everybody has a different issue,” Starnes said in a March interview. “And yet we have this huge number of cases and they have to be moved. Something has to be done. They cannot just sit here.”

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