The face of foreclosure: Rocket-docket contested by ACLU petition

A 40-year-old paramedic juggling her husband’s medical bills, several jobs and the foreclosure of her Cape Coral home is the face of an effort to transform Lee County’s expedited foreclosure system.

The American Civil Liberties Union filed a 400-plus page petition Thursday with the 2nd District Court of Appeals in Lakeland on behalf of Georgi Merrigan, who is being sued for foreclosure with her husband, Sean Merrigan.

“There are tons of people like me in this position,” Georgi Merrigan said.

In asking the appeals court to intercede in Merrigan’s case, the petition describes a foreclosure system in which due process is eroded by the court’s single-minded focus on eliminating a backlog of cases. It seeks two outcomes — placement of Merrigan’s case on a separate, traditional civil docket and a full-scale review and judgment upon Lee County’s foreclosure system.

The petition names the 20th Judicial Circuit but is aimed only at Lee County, not the circuit’s courts in Collier, Hendry, Glades and Charlotte counties.

Lee’s system, established with state funds in July 2010 and staffed by senior judges and magistrates, handles scores of cases daily. Each is expedited through multiple, brief docket soundings in which cases are prepped for summary judgment or trial.

In its own court analysis, the ACLU determined that the average foreclosure case receives three minutes in front of a judge before being disposed.

“That is not due process, that is not fairness,” Florida ACLU executive director Howard Simon said at a press conference at Merrigan’s home. “That is a travesty of justice.”

Defenders of the docket call it a system that, if flawed in parts, successfully balances justice with the court’s need to work through a backlog of cases. The backlog, now close to 9,000 cases, once stood at roughly 27,000, according to Lee Clerk of Court Charlie Green.

Green said the ACLU is blaming the courts for larger, social failures that created the housing bust.

“The justice system has not let the people down,” Green said Thursday. “The banks have stumbled some, and the public has stumbled some, but the court system has done its job.”

A message for Circuit Chief Judge Keith Cary was not immediately returned.

A petition is a request for a higher court to intercede in a lower court case, typically when the lower court makes a decision deemed contrary to law or procedure, or when a lower court exceeds its jurisdiction.

The ACLU’s petition, for writ of certiorari or writ of prohibition, makes both claims. It contends the court violated state procedure when it set Merrigan’s case for a docket sounding in the “procedurally defective” mass foreclosure docket. It also contends that the Lee Circuit Court exceeded its jurisdiction just by creating the docket.

The petition, written by ACLU attorneys Randall Marshall and Maria Kayanan, comprises 51 pages of argument and hundreds of appendices compiling affidavits from attorneys, court observers and pro se defendants and public records, many of them emails between judges and administrators.

It describes a docket more mechanical than responsive to defendants and their attorneys.

Discovery, or relevant information in the case shared by both sides, is expected to be complete by each docket sounding; when it isn’t, cases still move forward, the petition states. Between January 2009 and January 2011, summary judgment was granted in 253 cases where a motion to compel discovery was pending, according to the petition.

Judges set cases for trial even when not at issue, the ACLU alleges. Motions are often left unresolved, meaning homeowners never have the opportunity to provide an answer to a complaint or have a hearing on a motion to dismiss. The possibility of fraud or faulty paperwork is discounted or never considered in Lee, the petition states, despite widespread accounts of such issues across the United States.

Homeowners lack the same access to the court and judges that lenders receive, the petition continues. Homeowners and attorneys must appear in person for each sounding. They wait long hours for their turn before the judge, meaning homeowners pay more for attorneys. If a homeowner attorney fails to show, the sounding continues; if a plaintiff attorney fails to show, another foreclosure attorney often fills in.

“It imposes a system where the defining feature of foreclosure cases — the recurring appearances required for docket soundings — can result in a victory for plaintiffs but provides defendants with no opportunity to advance their own cases,” the petition states.

The “hydraulic pressure” of the docket comes from the circuit court, according to the ACLU. Judges and administrators view cases as a burden to process instead of a collection of individual cases, the petition states. It cites emails in which judges set the number of cases they want heard every session or day, often numbering in the hundreds.

“From its inception, the goal of the mass foreclosure docket has been to dispose of as many cases as possible as quickly as possible,” the petition states.

The process goes against a memorandum penned by Florida Supreme Court Chief Judge Charles Canady and sent to the state courts in November, the petition claims. In his memo, Canady urged courts to choose fairness and due process over efficiency.

Merrigan on Thursday said she refuses to become part of Lee’s mass foreclosure process, and Simon described the petition as a “pre-emptive strike” in her case. Her next docket sounding is April 27.

A former paramedic, Merrigan built her split-level, stucco house in 2004 with a $334,948.91 mortgage and a $110,000 downpayment gained in an inheritance from her grandparents. The original mortgage, made with NBank, was later sold to Countrywide Loans, which was later acquired by Bank of America. Merrigan is being sued by Bank of New York Mellon.

The suit came in March 2009, after an extended period of unemployment for Merrigan in which she cared for her husband. Sean Merrigan, a carpenter, had a heart attack in 2005 and was then involved in a car accident, suffering a broken back and legs and injuries to his heart, lungs and kidney.

Georgi Merrigan took leave from her job as a ground and flight paramedic and eventually resigned to care for her husband. She now juggles four jobs, she said, and is pursuing a nursing degree.

When she was unable to make payments in October 2008, Merrigan sought a modification, she said. The bank told her to become delinquent on the payments, she claims, but never restructured her loan.

“To lose this home would be devastating,” she said on Thursday. “Whatever it takes, I’m good with.”

Michele Belmont, a private attorney in Fort Myers, is representing Merrigan’s foreclosure case. Belmont said she’ll seek a stay of the case while the petition is being considered. The lender’s attorney in the case was the David J. Stern firm, which abandoned its cases when the Florida attorney general’s office began investigating the firm’s paperwork.

Were the mass foreclosure docket abandoned and its cases placed on regular dockets, as the ACLU wishes, the court system would almost certainly be overwhelmed, a situation that could affect other cases. The ACLU’s own petition cites a document in which Green estimates a normal civil docket would dispose of 523 cases a month compared to the 2,100 dispositions in the mass docket.

Simon and Kayanan said their focus was justice, whatever the cost.

“Certainly there may be consequences,” Kayanan said, “but due process always has consequences.”

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