Robo-Motions: The New Robosigning Scandal
Thu Aug 16, 2012 by Oppenheim Law on Florida Law News
Recently, Jacquelyn Trask, one of my associate attorneys, won a motion to dismiss with the court reserving determination of our right to receive attorneys’ fees on a case that highlights a growing problem, the filing of “robo-motions.”
The unusual facts of the case demonstrate how dangerous robo-motions are: potentially much more dangerous than the heights scaled by the robo-signing scandal.
She won the motion to dismiss because the bank’s attorney filed a motion to reschedule a foreclosure sale and have an ex parte order entered.
What are ex parte orders, you ask?
Simply put, ex parte orders are an unusual exception to a fundamental rule upon which our legal system is based: notice.
Usually, whenever one side in a case files a motion or requests an order from a judge, the other side has to be notified before the judge rules on the motion so that both sides can present their arguments.
That way, everyone gets a fair hearing.
Seems pretty obvious right?
The General Rules of Ethics even goes so far as to say ex parte motions should be avoided at all costs, and should only be used when giving notice to the other side will seriously harm your client. The foreclosure mill attorney turned the rule sideways.
Why?
Because the judge in the case had previously entered a court order forbidding the foreclosure sale from taking place.
The bank was able to reschedule the foreclosure sale because its attorney filed an ex parte motion with a different judge who knew nothing of the order. The attorney didn’t communicate with our firm, or as it turned out with the right judge as well, because it would harm the case, not because it would harm the client.
The bank’s attorney then made the situation so much worse by not telling our firm about the court order he had after he got it.
That doesn’t just violate Ethics Rules, it’s criminal.
And yet, as we have found to be the case with banks and their foreclosure mills, they feel that the rules are optional, or merely suggestions.
Until now, that is.
Thankfully, we got a notification that the sale was taking place several days before it happened and we were able to stop it.
Want to know the bank’s attorney’s excuse for the motion? (Stop me if you’ve heard this one before.)
His staff prepared dozens of ex parte motions without looking at the files and told him they were OK. He then signed the motions and sent them in without reading them.
He also forgot to send Oppenheim Law the order, but that time he blamed it on the judge’s staff, saying it was their fault for not mailing our office the order.
Unfortunately for him, that just doesn’t cut it.
Such behavior threatens the underpinnings of our legal system and the public’s trust in it. As every first year law student learns, justice must not only be done, it must also be seen to be done. Ex parte motions just don’t do that.
The case demonstrates just how dangerous robo-motions are, and why they are an attack at the very foundation of our legal system: fairness.
Hopefully, the courts and the public have learned their lesson from the robo-signing scandal and won’t tolerate this one.
From The Trenches,
Roy Oppenheim
