FOR IMMEDIATE RELEASE - 1/14/2019 Contact: Rex E. Russo, attorney
Re-print, re-publish, re-post, or Phone: 305-442-7393
quote freely, but give credit. Email: Rex@FloridaPropertyLitigation.com
THE CODE OF SILENCE
It was with much skepticism that I read the Third District Court’s Order to Show Cause directed to Miami attorney Bruce Jacobs. See, Bank of America v. Atkin, No. 3D18-1840, (December 14, 2018). Most notably, I was concerned by the following statements:
“Insults or disparaging comments by lawyers to courts in court filings cannot be justified as zealous advocacy because they risk alienating the very judge the lawyer was hired to persuade.”
“[T]his venting can come at a high cost to the client’s interests.”
Essentially, those assertions are an admission that the opinions of the court may be affected by disparaging comments. Are judges not expected to rise above such comments in order to be truly judicious? If a judge’s job is to seek the truth and apply the law, why should such commentary play any role? Is venting not understandable when reason fails? Shouldn’t strong words open a judge’s eyes instead of lead them to shut?
Judge Logue goes on to write that insults “reflect–not attempts at persuasion — but the abandonment of any attempt to persuade.” “Insults usually garner resistence to an idea...” Is the court giving excuses for not giving the matter due consideration?
The court then goes on to list what “insults” Mr. Jacobs allegedly committed. Generally, they are:
• Asserting that the Court violated the standard of review, ignored Florida Supreme Court precedent, and falsified the facts in contradiction to the record.
• Questioning the ability of the Court to be impartial.
• Asserting that a circuit court judge acted with disregard for the rule of law and the client’s constitutional rights, only to have the District Court affirm.
• Stating that a new circuit court judge who rotated into the division changed a favorable ruling because opposing counsel held a fundraiser for the judge.
What qualifies these statements as “insults” as opposed to “criticisms”? Mr. Jacobs was not using profanity, nor name calling, nor making any threats. So, where is the direct contempt upon the court that empowers it to have jurisdiction over the alleged acts? Mr. Jacobs appears to have been merely pointing out what he believes he could prove. If the court considers Mr. Jacobs to have violated the Rules of Ethics regulating attorneys then the court should defer the matter to the Florida Bar, not take it upon itself to make a determination.
I can not speak about the merits of Mr. Jacobs filings before the court, because unlike the Florida Supreme Court’s website which allows access to the briefs, motions, appendix, and records, the only way for the public to view those is to drive out to the court, make a public records request and hope for a favorable response, or persuade a party to provide them. That unfortunately fits well with the code of silence enforced by the court. Freeing access to the records filed before the court would allow for greater opportunity for independent public review, and review by others in the legal community.
Presumptively, the reader is expected to believe that the court is correct and that Mr. Jacobs is wrong. However, I for one do not make that assumption. If allowed to make a presentation to a truly impartial panel, I could also show instances where the court looked past the standard of review on an appeal from a summary judgment and interpolated evidence contrary to the position of the appellant instead of taking the evidence in a light most favorable to the appellant. I could show instances where the court has asserted matters to be “facts” because they were stated in the opposition’s brief – but were lacking in the record. I can show where the court affirmed a lower court order awarding sanctions upon finding it frivolous to sue a lending institution for forged TILA disclosure documents. I can show where the court did not realize that an order appointing a trustee over a condominium association’s property (i.e. over the common elements, rights to collect assessments, rights to enforce collection) did not, and could not, give the trustee immunity for the unconstitutional taking of a unit owner’s property — especially without serving process and allowing an opportunity for the unit owner to be heard in court BEFORE the taking. Were those omissions and incorrect outcomes intentional? I can only tell you what I think. If my hands were not constrained by the court from uncovering likely facts, or if my resources were sufficient, or if someone with clout sided with me, then perhaps one day I could tell you what I know.
So, what impartial panel would hear such complaints? Not the Florida Supreme Court unless they have, and then take, jurisdiction. Misstating facts does not give the Supreme Court jurisdiction. Using an incorrect standard of review only gives the Supreme Court jurisdiction if the misapplication is apparent from the face of the opinion; and, even when jurisdiction is present the Supreme Court has the discretion to deny review, which they most often do. Ignoring precedent does not give the Supreme Court jurisdiction — only stating an incorrect precedent or one that conflicts with another District Court could potentially yield jurisdiction to the Florida Supreme Court.
Intellectual deficiency is a serious enough problem, but if the court’s failure to be logical and precise goes beyond intellectual deficiency and rises to the level of intellectual dishonesty, that is a very serious matter. Intellectual dishonesty will only serve to further encourage crony jurisprudence at the trial court level and disenfranchise the masses. And, it is frustrating. It is frustrating because most want to assume that the appellate court is correct. It is frustrating because just about no one with the clout to do anything about intellectual dishonesty will give the matter sufficient time and consideration to derive whether an attorney’s gripes concerning problems with the appellate court have merit (thus the amplification of intention). It is frustrating because many, while skeptical, have simply given up hope that the system will ever overcome highly political appointments to the bench, which itself entices intellectual dishonesty. So, the court enforces its code of silence in the belief that failing to do so might encourage others to respond with open discontent. Yet, all it takes to incite open discontent is for the court to be intellectually deficient, intellectually dishonest, remiss, condescending, obfuscating (ex. – altering the audio-video recording of oral arguments), conniving (ex. – a judge intentionally making their way onto an appellate panel), deprecating (ex. – asking an insinuating and off-beat question at the start of oral argument), or disrespectful (ex. – walking out on counsel abruptly during oral argument). Although, for the appellate court judge who is intellectually dishonest, yet writes eloquent anti-consumer opinions, the reward might just be an appointment to the Florida Supreme Court.
God, save the State of Florida.
FOR IMMEDIATE RELEASE - 10/24/2018 Contact: Rex E. Russo, attorney
Re-print, re-publish, re-post, or Phone: 305-442-7393
quote freely, but give credit. Email: Rex@FloridaPropertyLitigation.com
TILA TERRIBLE JUDGMENT - or - TOO RIGGED TO FAIL
“DEFRAUDED BY LENDER – PAY BANK $40,000!”
Bennett v. GTE Federal C. U., No. 3D17-0001 (Fla. 3d DCA Sept. 6, 2017) (review denied)
Looking back, it was like drawing a very bad Monopoly card, but in the real game of life, while watching The Bullwinkle Show. Homeowners defrauded by forgery were ordered to pay $20,000 to the person who was possibly, if not likely, responsible for the forged document. Judgment for another $20,000 was imposed against the homeowners’ attorney.
John and Nancy Bennett, the homeowners, were defrauded by a forged federally required Truth-in-Lending (TILA) disclosure document that led mortgagee GTE Federal Credit Union to bill them over $100 more per month. The Bennetts, having noted the error, retained counsel and demanded correction. Full rectification was defined in the demand as: a correction of the monthly billed amount, a return of the over-payments, and a payment of $500 in attorney fees — all to be completed within 60 days. Although the Bennetts were immediately entitled to TILA’s statutory damages and rescission, they did not seek those remedies at that time, preferring a quick and sensible resolution.
Since no correction was made within the demanded sixty days, nor within 100 days, the Bennetts sued GTE, LF Loans (a mortgage broker), and LF Loans’ principal Jamal Wilson. GTE, LF Loans, and Wilson, united in defense, asserted that the Bennetts, who brought suit for rescission, recoupment of their over-payments, statutory damages, and attorney's fees — all of which are outlined under TILA — were not damaged.
The united defendants asserted that the Bennetts were not damaged because Wilson, in response to the Bennetts’ demand for correction, stated that there “would be” a correction of the monthly billed amount by the next billing cycle and a return of the over-payments. However, GTE did not make the correction by the next billing cycle, nor the two after that, and, no defendant paid or ever agreed to pay the Bennetts’ $500 attorney’s fees incurred in calling out the forgery. Just after suit had been filed, the Bennetts received notice that the amount was corrected just prior. However, Defendants had already not only failed upon Wilson’s promise for correction by the next billing cycle, they also failed the requirements under TILA for correction, and they failed to meet the demands of the Bennetts for correction. Without submitting any sworn statement by anyone on their behalf, the Defendants proceeded on a motion for summary judgment – which the trial court granted.
On appeal, the Bennetts cited federal cases that led to rescission favorable to other homeowners who additionally received statutory damages, costs, and attorney’s fees. Those federal cases remind us that TILA must be strictly construed in favor of homeowners. Without mention of those cases, the Third District Courts of Appeals affirmed stating that “[t]he Bennetts (other than attorney fees) received everything they had asked for.” In support, the Third District cited to a case that essentially stands for the proposition that if you make an agreement, the benefits you receive under the agreement are all that you are entitled to receive. What agreement?
REMISS YET ELOQUENT
A careful and studied review of the appellate court’s opinion alone reveals that the united defendants did not comply with the Bennetts’ demands; did not comply with corrective measures afforded under TILA; and did not even comply with Wilson’s own statement of what he said "would be done" — which fell far short of accepting the terms demanded by the Bennetts. At the time they proceeded to file their action, the Bennetts had received nothing they had asked for. Returning the benefit of the forgery, only after getting caught and sued, was not a contrition by defendants.
The Bennetts were damaged by incurring attorney fees to get back to the position they were suppose to be in under the mortgage contract. The Bennetts were also damaged by having to pay court costs to get back to that position. TILA’s statutory damages were also awardable to the Bennetts at that point. Most importantly, the Bennetts were entitled to TILA rescission at that point (essentially resulting in an interest free loan for which the balance was then due) — as a matter of right — regardless of damages — as stated in the cited federal cases.
Even after getting caught committing a forgery of a TILA required disclosure document — or, at least getting caught relying upon the forged document — and then failing to make a timely correction — the defendants went unpunished despite TILA’s strictness. That sounds more like the defendants got everything they wanted — an opportunity to commit forgery or at least rely upon a forgery — with no risk. Perhaps defendants had benefitted from such forgeries hundreds of times and it was the first time they were caught. Adding interesting commentary to the opinion, Judge Luck writing for the Third District quoted from Sophocles’ Antigone, a tragic play about how power corrupts men.
The Third District also added a gratuitous (non-briefed issue) to their opinion stating that the rescission claim was, moreover, precluded by section 1635(e)(2) of TILA because the “Bennetts’ . . . mortgage was a refinance of their existing mortgage, secured by an interest in the same residential home.” On motion for rehearing, the Bennetts’ pointed out, with supporting reference to the record, that the transaction was not a “refinancing” of their home with the same lender. Only a refinancing of the same property, with the same lender, places the transaction under the preclusion of TILA’s 1635(e)(2). Even when 1635(e)(2) does apply, it does not preclude the right to TILA’s statutory damages and attorney fees, both of which were ignored in the Third District’s opinion. Bennetts’ motion for rehearing was denied.
TILA was intended to encourage attorneys to undertake the very kind of action pursued by the Bennetts. Such actions keep lending institutions in check. Congress recognized that the alternative would be the creation of an expensive layer of bureaucracy to oversee proper lending practices for every loan. In fact, at oral argument, Defendants’ counsel conceded that it was a TILA violation to have conflicting disclosure documents, but he argued — without any supporting case law — that such violations were too technical to be actionable. Judge Ivon Fernandez, one of the panel judges on appeal, then stated that “a hyper-technical interpretation of the statute would create an industry of litigation based on technicalities.”
In their brief, the Bennetts cited to case law stating that “hyper-technicality reigns in TILA cases” because TILA is supposed to be strictly construed in favor of the homeowner. Consequently, a “litigation industry” enforcing TILA’s strict mandates already exists in the form of consumer attorneys throughout the nation. Furthermore, a forged document that increases the monthly payments by more than $100 per month is not a hyper-technical violation, nor is it a common technical violation. It is something much worse.
(View referenced documents at: RexAppeals.com --> under Conference-Room/Documents-on-the-Table)
Author - Rex Russo
Over 35 years experience with Appeals, Real Estate Litigation, and Bankruptcy Actions and Adversary Defense.