Foreclosure Defense Rights and Wrongs: Squatters, Ejectments and Constitutional Rights

Over the past few days it seems that the informal name of this blog: “From the Trenches” is becoming more and more fitting. Florida foreclosure defense has become part of our everyday life – radio, TV, Internet, print.

Let me explain. On Friday on the front page of the New York Times headline Squatters Call Foreclosures Home one could not help to miss an unbelievable story about folks in Miami who squat in foreclosed homes. They move in — usually at night — after the bank takes ownership. They sign contracts with the electric company, water and maybe even cable TV. The banks are slow to throw them out and so is the sheriff. In fact various advocacy groups help people move back into their “own” home after they have been foreclosed.

Arguably, the homes and the neighborhood are better off having the homes occupied than having an abandoned home without any electric power rotting on the block. Legally, it can get interesting because after a few days the banks can lose the power of the sheriff and the squatters need to be legally ejected through a formal court proceeding called an ejectment.

In fact we had a case recently where after a sale the seller was informally permitted to stay in the home for a few days past the closing date. Soon the few days became weeks and the weeks became months. The police refused to get involved and we had to bring an ejectment action to get the old “owners” out of the residence.

Another trend we have discussed repeatedly is the fact that most folks do not hire an attorney during a foreclosure. Maybe five percent do. The courts throughout the country are finding this a disturbing trend as was also discussed in Friday’s NYT. I have been a strong advocate that judges and the clerks need to be more even-handed to ensure a fair outcome even when folks appear pro se (without counsel). However, we repeatedly see judges not digging into a file if a person is not represented to make sure that such individual’s procedural and constitutional rights are not trampled upon. I know for a fact that at a least some judges here in Florida do not believe it is their role to ensure that a pro se litigant’s rights are protected if they are inadequately or not represented in a civil matter. I take deep umbrage with that position and have made my position well known.

So it is great to hear the Chief Justice of New Hampshire, John T. Broderick state that to ensure fair outcomes, courts must do more to help people navigate the courts. As quoted in NYT the Chief Justice states: “If you and I went to hospital and they said, ‘Do you have insurance’? and we don’t, and they said, ‘There are some textbooks over there with some really good illustrations’, we would think that was immoral.”

Well I agree with the good judge! I know some of my judge friends in Fort Lauderdale would agree with me, but I also know how overworked their case load is. Some judges have over 4,200 foreclosures files in their court room in addition to everything else. In fact, in Broward County they are creating a special early morning rocket docket for foreclosure files where individuals are not represented by counsel.

So be warned… do not get on that rocket docket or you too will soon be squatting in your own foreclosed home.

Roy Oppenheim … From the Trenches.