Florida Supreme Court Amends Residential Foreclosure Rules Of Civil Procedure

The Florida Supreme Court issued an opinion today amending the Florida Rules of Civil Procedure with regard to residential foreclosures.  The consolidated opinion in IN RE: AMENDMENTS TO THE FLORIDA RULES OF CIVIL PROCEDURE (SC09-1460) and IN RE: AMENDMENTS TO THE FLORIDA RULES OF CIVIL PROCEDURE - FORM 1.996 (FINAL JUDGMENT OF FORECLOSURE) (SC09-1579) can be viewed HERE.  The changes are below:

With regard to SCO9-1460, the first amendment was:

Rule 1.110(b) is amended to require verification of mortgage foreclosure complaints involving residential real property. The primary purposes of this amendment are (1) to provide incentive for the plaintiff to appropriately investigate and verify its ownership of the note or right to enforce the note and ensure that the allegations in the complaint are accurate; (2) to conserve judicial resources that are currently being wasted on inappropriately pleaded "lost note."

Second:

The new form is meant to help standardize affidavits of diligent search and inquiry and provide information to the court regarding the methods used to attempt to locate and serve the defendant.

Third, the process server must now state:

I inquired of the occupant of the premises whether the occupant knows the location of the borrower-defendant, with the following results: ________.

Next, the court amended the form to incorporate the provisions of section 49.041, Florida Statutes which "sets forth the minimum requirements for an affidavit of diligent search and inquiry." 

For the final change,  the court stated:

Finally, we adopt the Task Force’s proposed Motion to Cancel and Reschedule Foreclosure Sale as new form 1.996(b). The Task Force recommended adoption of this new form in which the plaintiff would provide the court with an explanation of why the foreclosure sale needs to be cancelled and request that the court reschedule the sale."

With regard to case SC09-1579, the court stated:

First, to conform to current statutory requirements, a notice to lienholders and directions to property owners as to how to claim a right to funds remaining after public auction is added to the form. See § 45.031(1), Fla. Stat. (2009). Additionally, to conform to current statutory provisions allowing the clerk of court to conduct judicial sales via electronic means, the form is amended to accommodate this option. See § 45.031(10), Fla. Stat. (2009).

Other amendments are as follows: (1) in order to provide greater clarity and prevent errors, paragraph one of the form is amended to set out amounts due in a column format; (2) paragraph two is amended to allow for the possibility that there may be more than one defendant, and out of concern for privacy interests, the lines for an address and social security number are deleted; (3) paragraph four is amended to conform to existing practice and require a successful purchaser to pay the documentary stamps on the certificate of title; (4) paragraph six is amended to accommodate the possibility that there may be multiple defendants, to adapt to the requirements of section 45.0315, Florida Statutes (2009), stating that the right of redemption expires upon the filing of the certificate of sale, unless otherwise specified in the judgment, to recognize the potential survival of certain liens after foreclosure as provided in chapter 718 (the Condominium Act) and chapter 720 (Homeowners’ Association), Florida Statutes (2009), and to allow a purchaser to obtain a writ of possession from the clerk of court without further order of the court

Article About Derespina v. North Broward Hosp. Dist., 19 So. 3d 1128 (Fla. 4th DCA 2009)

Derespina v. North Broward Hosp. Dist., 19 So. 3d 1128 (Fla. 4th DCA 2009), discussed in a prior post HERE, was referenced in the article below:

And the Defense Wins - Feb. 10, 2010 (Derespina)

APPLICANTS SOUGHT FOR CRIMINAL CONFLICT AND CIVIL REGIONAL COUNSEL

The Florida Bar released the press release below:

Applicants Sought for Criminal Conflict and Civil Regional Counsel Vacancy Created by the Death of Jackson ...

Florida Supreme Court Denies Martin Grossman's Motion For Postconviction Relief - Execution Scheduled For Next Week

The Florida Supreme Court issued an opinion today denying Martin Edward Grossman's third successive motion for postconviction relief.  The opinion can be viewed HERE.  A Miami Herald article about the decision can be viewed HERE and an article in the Tampa Tribune HERE.  The execution is scheduled for February 16, 2010 at 6:00pm.  The court's summary is below:

Martin Edward Grossman, a prisoner under sentence of death and under an active death warrant, appeals from the trial court’s order summarily denying his motion to vacate his sentence pursuant to Florida Rule of Criminal Procedure 3.851. Because the order concerns postconviction relief from a sentence of death, this Court has jurisdiction over the appeal under article V, section 3(b)(1), of the Florida Constitution. In his successive motion filed after the death warrant was signed, the summary denial of which is the subject of the present appeal, Grossman raised claims that were either previously raised in his postconviction proceedings that concluded in 1997 or repeatedly rejected by this Court as legally without merit. Therefore, as more fully explained in this opinion, we affirm the trial court’s order.

Presumably, a petition for certiorari will be filed in the United States Supreme Court and a motion to stay execution will be filed with Justice Thomas.  As of now, there is nothing on the Supreme Court's docket to reflect any filings.

Prior opinions are in this case are: Grossman v. State, 525 So. 2d 833 (Fla. 1988), cert. denied, 489 U.S. 1071 (1989); Grossman v. Dugger, 708 So. 2d 249 (Fla. 1997); Grossman v. Crosby, 880 So. 2d 1211 (Fla. 2004); Grossman v. Crosby, 359 F. Supp. 2d 1233 (M.D. Fla. 2005), aff’d sub nom. Grossman v. McDonough, 466 F.3d 1325 (11th Cir. 2006), cert. denied, 550 U.S. 958 (2007); Grossman v. State, 932 So. 2d 192 (Fla. 2006); and Grossman v. State, 5 So. 3d 668 (Fla. 2009).

Florida Supreme Court Invokes All Writs Jurisdiction Over US Sugar Cases

In South Florida Water Management District v. Miccosukee Tribe of Indians of Florida, the Florida Supreme Court exercised its all writs jurisdiction, provided by the Florida Constitution, and took jurisdiction of two cases pending before the Third District.  The issues in the case as stated by the South Florida Water Management District are below:

The District and the United States Sugar Corporation (the "USSC") have entered into a contract pursuant to which the District will acquire from USSC farmland for purposes of Everglades restoration and preservation. Pursuant to Chapter 75, Florida Statutes, the District filed suit to validate the proposed issuance of certificates of participation (the "COPs") to South Florida Water Management District finance the acquisition.

The Miccosukee Tribe of Indians of Florida (the "Tribe") and New Hope Sugar Company and Okeelanta Corporation (collectively, "New Hope") appeared and actively opposed the bond validation.

The Court's order can be viewed HERE and is copied below:

Petitioner's petition to invoke all writs jurisdiction is hereby granted and the Third District Court of Appeal is hereby directed to transfer forthwith to this Court the consolidated cases styled New Hope Sugar Company, et al. v. South Florida Water Management District, Case No. 3D09-2357, and Miccosukee Tribe of Indians of Florida v. South Florida Water Management District, Case No. 3D09-1960. Because we are confident that the district court will act in a manner consistent with this order, we withhold issuance of the writ.

The Petition to Invoke All Writ's Jurisdiction can be viewed HERE and the Appendix HERE. The Respondent's Suggestion of Lack of Jurisdiction can be viewed HERE.  The Supreme Court's Order to Show Cause as to why it should not accept jurisdiction can be viewed HERE.  All filings can be viewed HERE.

Florida Supreme Court To Review Powers Of Clerks Of Court

The Florida Supreme Court entered an order today accepting jurisdiction in the case of Board of County Commisssioners of Collier County v. Brock, et al (SC09-2190).  The order can be viewed HERE.  The Supreme Court also entered THIS order which stayed the entry of the mandate by the Second District.  Justice Labarga dissented from the Court's order staying the Second District's mandate, however, the decision to accept jurisdiction was unanimous.  The summary of the argument in the brief on jurisdiction is copied below:

This Court has jurisdiction pursuant to article V, section 3(b)(3) of the Florida Constitution because it expressly affects two classes of constitutional officers in all 67 Florida counties -- the Florida boards of county commissioners and the Florida clerks of court. The decision expressly expands the scope of powers that the Clerk has and expressly limits the scope of powers that the Board has. The decision also conflicts with this Court's opinion in Alachua County v. Powers, 351 So. 2d 32 (Fla. 1977).

This ruling is one of first impression and uses a statutory public banking scheme under Fla. Stat. Chapter 136.01 et seq. to enlarge the power of county clerks to include post-audit power as to discretionary spending decisions made by boards of county commissioners and does not appear to limit the types of audits that may be performed. No limits have been set as to this power, nor has “postpayment audit” been defined by the decision. The District Court justifies this decision, A-6, as being needed to “tests existing internal controls;” however, what is patently unclear is who’s internal controls need to be tested; the Board’s or the Clerk’s?

This Court should exercise its discretion to accept jurisdiction and review the Second District's decision because that decision significantly impacts boards of county commissioners and clerks across the state, conflicts with the historical constitutionally and statutorily authorized functions and powers of boards and clerks, and creates a considerable conflict of interest for clerks. Indeed, the danger of that conflict of interest has been emphasized by the U.S. Supreme Court. 

The relevant documents in this case are below:

*Second District's Decision Under Review

*Supreme Court's Acknowledgement of New Case;

*Notice of Intent to Invoke Discretionary Jurisdiction;

*Petitioner's Brief on Jurisdiction;

*Appendix to Brief on Jurisdiction;

*Jurisdictional Answer Brief;

*High Profile Order;

*Notice of Intent to File Amicus Brief - Florida Association of County Attorneys, Inc. and the Florida Association of Counties, Inc.;

*Notice of Intent to File Amicus Brief - Florida Association of Court Clerks, Inc.;

*Motion to Review Second District's Order Denying Motion to Stay Mandate;

*Response to Motion to Review Order Denying Motion to Stay Mandate;

*Order Accepting Jurisdiction;

*Order Staying Second District's Mandate;

Supreme Court Decision Renders Previously Timely Notice Of Appeal Untimely

The Ninth Circuit's decision in Haight v. Catholic Healthcare West is an interesting one.  The notice of appeal was timely filed based upon the existing law in the circuit.  However, the Supreme Court issued an opinion stating that the circuit was wrong with regard to the law.  Therefore, the notice of appeal was untimely.  The court stated:

Plaintiffs filed a notice of appeal in this qui tam action 51 days after the district court granted summary judgment in favor of Defendants. We must dismiss this appeal for lack of jurisdiction because Plaintiffs filed the notice of appeal more than 30 days after the entry of judgment. Fed. R. App. P. 4(a)(1)(A). When the notice of appeal was filed, this appeal was timely under then-controlling circuit law that gave Plaintiffs 60 days to file an appeal, but dismissal is now required by an intervening Supreme Court decision ruling that the allowable time is 30 days.

***

It is a serious understatement to call this result “inequitable,” Bowles, 551 U.S. at 214. Plaintiffs reasonably relied on Ninth Circuit precedent that gave them 60 days to file a notice of appeal. But the Supreme Court has instructed us that concerns of equity must give way before the “rigorous rules” of statutory jurisdiction. Id.

Thanks to How Appealing.

"Why (and When) Judges Dissent: A Theoretical and Empirical Analysis"

Three law professors released an interesting article about why Judge's dissent.  The article "Why (and When) Judges Dissent: A Theoretical and Empirical Analysis" was written by Lee Epstein, Northwestern University - School of Law; William M. Landes, University of Chicago Law School; National Bureau of Economic Research (NBER); and Richard A. Posner, University of Chicago Law School; National Bureau of Economic Research (NBER) (also a Seventh Circuit Judge).

The article abstract states:

This paper develops and tests a model of self-interested judicial behavior to explore the pheno-menon of judicial dissents, and in particular what we call “dissent aversion,” which sometimes causes a judge not to dissent even when he disagrees with the majority opinion. We examine dissent aversion using data from both the federal courts of appeals and the U.S. Supreme Court. Our empirical findings are consistent with the predictions of the model. In the court of appeals, the frequency of dissents is negatively related to the caseload and positively related to ideological diversity among judges in the circuit and circuit size (i.e., the fewer the judges, the greater the collegiality costs of dissenting and therefore, other things being equal, the fewer dissents). We also find that dissents increase the length of majority opinions (imposing collegiality costs by making the majority work harder) and are rarely cited either inside or outside the circuit (reducing the value of dissenting to dissenters). In the Supreme Court, we find that the dissent rate is negatively related to the caseload and positively related to ideological differences, that majority opinions are longer when there is a dissent and that dissents are rarely cited in either the courts of appeals or the Supreme Court.

The suggested citation is: Epstein, Lee, Landes, William M. and Posner, Richard A., Why (and When) Judges Dissent: A Theoretical and Empirical Analysis (January 20, 2010). U of Chicago Law & Economics, Olin Working Paper No. 510. Available at SSRN: http://ssrn.com/abstract=1542834

Thanks to How Appealing.

Eleventh Circuit Affirms Judgment Based Upon Statute of Limitations In ERISA LTD Case

The Eleventh Circuit had two decisions relating to the statute of limitation in claims for long term disability benefits under ERISA. In Knight v. Unum Provident Insurance Co. (09-13653), the Eleventh Circuit affirmed the entry of a summary judgment against Unum based upon the plaintiff's failure to file her lawsuit within the controlling statute of limitation. The brief facts were provided by the court as follows:

The policy stated that a policyholder could commence “legal action regarding [a] claim 60 days after proof of claim has been given and up to 3 years from the time proof of claim is required, unless otherwise provided under federal law.” Knight received short term disability benefits for her absences from work caused byallergic reactions to latex between October 2001 and May 2002. In June 2002, Knight’s claim was transferred to Unum’s long term disability division. On September 30, 2002, Unum denied Knight long term disability benefits beyond June 25, 2002. Knight appealed and, on December 13, 2002, Unum extended Knight’s benefits to December 5, 2002. Knight did not challenge Unum’s decision.

In 2005, Unum notified Knight that she could fill out a form for a reassessment of her long term disability claim.  "On October 17, 2006, Unum notified Knight that she was entitled to long term disability benefits between December 6, 2002, and July 24, 2003."....."On September 17, 2008, Knight filed a complaint that Unum had “breach[ed] [its] fiduciary duty and impair[ed] the obligation of contract under the Employment Retirement Income Security Act” by denying her long term disability benefits after July 24, 2003."

The Eleventh Circuit agreed with the district court that the complaint was untimely:

The district court ruled that Knight commenced her action to recover unpaid benefits after the period of limitation had expired.

Knight argues that her complaint was timely, but we disagree. Knight’s policy imposed a three-year statute of limitation for her to file an a complaint about the denial of disability benefits, and Knight does not argue that period of time is unreasonable. See Northlake Reg’l Med. Ctr. v. Waffle House Sys. Employee Benefit Plan, 160 F.3d 1301, 1303–04 (11th Cir. 1998). Knight commenced her action after the statute of limitation expired.

In Ehmann v. Continental Casualty Company (09-11615), the Eleventh Circuit reversed the grant of summary judgment to Ehmann because the statute of limitation had expired when the suit was filed.  The court noted that it did not matter if the contractual language controlled or a longer statutory limitatio period.  Either way, the deadline had been missed.