High-ceilinged and hushed, the courtroom in downtown St. Petersburg feels more like a chapel than judicial chambers. Only a handful of the faithful are present for this service: the final rulings in foreclosure cases, decisions that can make the difference between homeownership and homelessness.
Senior Judge Horace Andrews, officially retired but recalled to help preside over Pinellas County's crushing caseload of foreclosures, sits on the dais, black-robed, bathed in light and bent over a speakerphone. He punches in the number of a lender's attorney, listens to an automated message, "Your call is very important to us," and introduces himself to the plaintiff's lawyer when she finally picks up the line.
Foreclosure rulings were moving along at a steady clip until about a month ago, when major lenders tapped on the brakes after revelations that they were taking shortcuts in their rush to take back properties. Despite a backlog of about 30,000 foreclosures in Pinellas and Pasco courts, lenders have been postponing the last step — the hearing on the motion for summary judgment.
Andrews, who used to handle 40 to 50 such hearings in an afternoon session, has seen his workload whittled down. Last Friday was especially light, just 12 hearings scheduled. Lenders canceled five of them, one just that morning, leaving Andrews seven decisions to make.
In four cases, the decision is easy: No homeowner has challenged the lenders' claims that the homeowner is in default and owes hundreds of thousands in principal, interest, late fees, unpaid taxes, plus process servers, property inspections, filing fees. In more than 90 percent of all foreclosures, a response from the homeowner is nowhere to be found in the court files. Maybe they've given up, maybe they've moved and never received word of the legal process, maybe they're talking to one branch of the bank, trying to work out a loan modification, unaware that the bank's legal team is barreling ahead with the foreclosure process.
When no one contests the facts put before the judge, the lender's request to take back the home is granted and a date is set for its sale. Andrews, who granted eight uncontested summary judgments last Friday morning, is looking at four more in the afternoon. On the edge of his desk, paperwork stuffed into legal-sized files is stacked like cordwood, the pages that need his signature tabbed with yellow stickies. For each signature, a sale is set.
But first Andrews, who has gotten used to no-show foreclosure cases, wants to hear from the handful of people in his courtroom. He's horrified that a judge in Jacksonville gave the impression foreclosure proceedings weren't public by threatening an attorney who brought along a Rolling Stone reporter.
Andrews wants people to know foreclosure hearings are not only public, but homeowners who want to keep their homes had better be there. And they can't just come with sob stories; they need to challenge the facts of the case. If material facts are in question, the judge can't grant the lender a summary judgment; the foreclosure process continues with more hearings or is set for trial. If nothing else, legitimately challenging facts buys the homeowner time.
First up before Andrews is Jan Govan, a Clearwater lawyer representing a Pinellas Park couple. Addressing the judge, as well as the opposition's lawyer via speakerphone, Govan said the lender filed a notice to foreclose before it had even been assigned the mortgage. The lender also claimed to have a "deed in trust," which isn't even recognized in Florida. The lender's lawyer argued essentially that those issues didn't matter.
Andrews posed a few questions, then denied the lender's motion for summary judgment.
Next case: A young woman clutching a stack of papers to her pink sweater approached the judge's bench. Citibank Mortgage had filed to foreclose on her St. Petersburg home in June 2009, and she had been trying to work out a loan modification. To forestall the summary judgment, two days earlier she'd hired a lawyer.
Andrews got that lawyer and the lender's lawyer on speakerphone. They batted legal points back and forth while the homeowner watched and Andrews listened. Within minutes, the judge denied the motion for summary judgment, citing the existence of "issues of fact" that had not been explored. A reprieve for the homeowner, who rushed out of the courtroom, asking a reporter to spare her the embarrassment of using her name.
Then something unusual in a foreclosure hearing: two attorneys, in the flesh. Michael Faehner, a tax attorney appearing as a favor for a St. Petersburg client, said Deutsche Bank filed the foreclosure before it officially held the mortgage. Meghan Kenefic, the lender's attorney, said Deutsche still was entitled to enforce the note. Andrews, enjoying the debate, told both attorneys to submit legal briefs. No summary judgment today.
A man in blue jeans and a T-shirt raised himself from the court's wooden pews, grabbed a sheaf of papers and approached the judge. "What can I do for you?" Andrews asked.
"I don't want to lose my house," said Merrick Videll of St. Petersburg.
Your hearing was canceled this morning, the judge told him, I don't know why, but you need to do something before they reset it.
"I've been paying but they sent back my last check," Videll said. "There's been nobody to talk to me for six months."
Get a lawyer, Andrews advised, suggesting the man could file a motion suing the lender for not giving him notice the hearing was canceled, maybe get the company to pay his costs. The judge recommended he get creative.
Videll, grateful for his good fortune but confused about what comes next, headed for the door. Andrews turned to the stack of uncontested cases.
Kris Hundley can be reached at [email protected] or (727) 892-2996.
Tips if you're being foreclosed on
If you are served with notice that your lender has filed a foreclosure complaint against you:
. Don't ignore the legal notice. It will not go away. You have 20 days to respond to the summons or you will be considered in default. The lender's allegations to the judge — about its right to foreclose, the amounts owed, your obligations to pay — will be unchallenged.
. Even if a foreclosure is ultimately granted, you are entitled to live in your home unless and until the bank wins the foreclosure lawsuit against you.
. Don't think you can ignore the legal notice because you're talking to the bank about a loan modification. The foreclosure process continues in the courts regardless of any loan negotiations.
. If you write a letter to the judge about your hardship situation, you inadvertently may be waiving valid defenses to foreclosure, defenses that cannot be asserted later.
. If you choose to represent yourself, learn about the process before heading to court or contact a legal aid group. Or hire a foreclosure defense attorney, many of whom offer free initial consultations. Be clear on what the attorney is charging, including any contingent fees and lien rights.
. Beware of any entity that guarantees it can get you a loan modification for a fee.
Sources: Foreclosure attorneys, Housing and Urban Development Department