Media-generated terms such as "robo-judges" and "rocket dockets" create misconceptions about how mortgage foreclosure cases are handled in Florida courts. At worst, some coverage — particularly in the national media — perpetuates misunderstanding, misinterprets the process and shows a lack of respect for judges, staffs of the courts and legislators, all of whom are working to solve a tremendous problem.
Also, articles and editorials about the openness of summary judgment hearings created an impression that the courts are trying to hide foreclosure cases from the public. Nothing is further from the truth.
Summary judgment hearings are not "rocket dockets." The summary judgment rule, a long-standing rule of civil procedure, applies to all civil cases. The summary judgment's function is an efficient procedure for the prompt resolution of cases with no genuine issue of material fact and when the party seeking the judgment is entitled by law to a decision.
Summary judgment hearings cannot be held until defendants are given notice and given opportunities to respond. Defendants have an opportunity to use the discovery process to obtain information from the other side and prepare their cases. Summary judgment hearings usually occur months or years after lawsuits are filed. Homeowners served with foreclosure lawsuits are given a notice from the court with information about mediation, legal services and housing counseling. They also are informed of their responsibility to respond to the lawsuit and informed that if they do not respond a judgment may be entered.
Summary judgment hearings in foreclosure cases are usually heard on a mass calendar. This is no different than many other proceedings and is a more efficient method to schedule limited court time. In most foreclosure cases, the borrower does not appear. If a defendant — or his or her attorney — does appear, he or she can participate in the summary judgment hearing.
Judges' roles in summary judgment hearings are limited because judges must remain impartial and be fair to both sides. Some judges are improperly faulted for not going behind paperwork submitted for summary judgments. Critics have used the term "robo-judge," which is derogatory, offensive and misleading.
Unless disputed issues of fact are raised, the court must grant the summary judgment motion. A judge cannot independently investigate case facts, go beyond what is presented in pleadings or become an advocate for either side. Nor can the judge rely upon newspaper articles to make rulings. It is the homeowner's responsibility to raise legally sufficient defenses.
Because of the numerous foreclosure cases that have overburdened the courts, creating backlogs and longer wait times for other civil matters, the Florida Legislature responded and appropriated $9 million from federal stimulus funds. Approximately $6 million is for the courts and $3 million for the clerks. Court funds are being prudently used for temporary employment of case managers, who prepare files for the judges' review, and to pay senior judges for each day they hear cases.
Some media have made it sound as if unqualified judges were recruited from retirement homes solely to dispose of foreclosure cases. To the contrary, senior judges are fully qualified, active judges. They regularly fill the courts' temporary needs when judges are ill, have lengthy trials, or other unexpected situations arise. A review board certifies Florida's senior judges, who must maintain continuing judicial education. The foreclosure crisis is an unexpected situation for which senior judges are aptly suited.
Reporting of a few incidents suggests courts are purposefully barring the public and the press from summary judgment hearings. These reports have been enhanced by rumor and hearsay and because summary judgment hearings are often held in small rooms with controlled access because of a shortage of courtrooms.
I know of no situation where the parties, the press or the public were denied access to summary judgment hearings in the 6th Judicial Circuit, or most other circuits. Just the opposite is true. We welcome the media and any member of the public into our courtrooms and chambers for foreclosure hearings.
At every chance, the press has been encouraged to educate themselves and the public about the foreclosure process and to learn more about our judicial system.
It is easy for the media — particularly those geared to sound bites — to throw out catchy terms like "robo-judge" and "rocket docket." Judges are neutral decisionmakers who should be commended for upholding their oath of office and following the law.
J. Thomas McGrady is the chief judge of Florida's 6th Judicial Circuit, which covers Pasco and Pinellas counties.