Thursday, December 27, 2012

Vacating A Judgment/Order Requires Sworn Testimony Or Evidence--Not A Lawyers Argument

In Chase Home Loans v. Sosa (3D12-1783), the Third District reversed an order vacating a foreclosure sale. The motion was filed by a husband who asserted that his wife, a co-signatory on the mortgage, "'actively concealed' the proceeding by hiding all notifications under the family sofa." The trial court vacated the sale, presumably "inspired by benevolence and compassion for the family." However, there was no issue of service of process and there was no sworn evidence or testimony submitted in favor of vacating the foreclosure sale. 
The court stated that:
The husband’s motion was brought under Florida Rule of Civil Procedure 1.540(b), which permits a trial court to relieve a party or a party’s legal representative from a final judgment, decree or order based upon mistake, inadvertence, surprise or excusable neglect. However, as we often have said, unsworn representations of counsel about factual matters do not have any evidentiary weight in the absence of a stipulation....“It is of no moment in establishing facts that attorneys are ‘officers of the court’ as we often read when an unsworn representation is made.”...Nor is the fact that the wife may have been the subject of some undetected “degree of mental incapacity” during the course of the foreclosure action. Even if true, this does not create a sufficient showing of mistake, inadvertence, surprise or excusable neglect to warrant vacating a final judgment.
A motion to vacate requires the submission of actual sworn evidence in order to be considered on the merits. The motion in this case did not even have that. Because the attorneys mere legal argument was not sufficient, the court reversed the order vacating the foreclosure sale. 

Wednesday, December 26, 2012

Florida Supreme Court: Certification of Need for Additional Judges

In In re: Certification of Need for Additional Judges, the Florida Supreme Court fulfilled its constitutional obligation and sent a report to the Legislature regarding the various needs of the judiciary.
The Court noted the following regarding the circuit & county courts: "Several of our chief judges note, in particular, the long waits associated with obtaining hearing times. In some jurisdictions, dockets are so full that it takes several weeks to schedule a hearing." I imagine many lawyers in South Florida would be thrilled if it only took several weeks to obtain a hearing time. But, the Court's point is certainly correct.
With regard to the appellate courts, I found the following to be particularly interesting: "The Second District also notes that despite high caseloads and a reduction in resources including personnel, the judges and staff have made every effort to properly execute their responsibilities. However, they do so knowing that trying to absorb this increased workload limits the time available for the consideration of each case and the writing of opinions. This Court shares the concerns of the chief judge of the Second District and remains concerned about a diminished quality of justice resulting from high workload and a loss of resources." (emphasis supplied).
The Court certified the need for one additional Second District judge. The needs of the circuit and county court were included in an appendix to the opinion, which is copied at the bottom of this post. In what is a somewhat sad concluding statement, given the real need for new judges, the Court said: "To the extent funding is available, we urge the Legislature also to consider our certified need for additional judges."

Wednesday, December 12, 2012

Funds Not Property Of ERISA Plan Until Remitted To Plan

In Pantoja v. Zengel (12-11036), the Eleventh Circuit affirmed the trial court's judgment that the money at issue was not an asset of the ERISA plan where the money had never been given to the ERISA plan. The court held:
Upon examination of the Plan documents, we find no clear and specific language indicating the fringe benefits are plan assets before they are actually remitted to the Plan. Indeed, unlike the plan documents in ITPE PensioFund, this contract is not even susceptible to such a reading. See 334 F.3d at 1016. Without clear language or any evidence indicating otherwise, we conclude that thunpaid funds cannot be construed as plan assets; therefore, the Appellees did nobreach a fiduciary duty as a matter of law.