An Attorney's Challenge To A Foreclosure Order Was Supported By Advisory Panel

Written By: Emil FleysherDecember 15, 2014

An advisory committee to the Florida Supreme Court informed the Palm Beach Circuit chief judge that an administrative order that throws out certain motions in foreclosure cases as "abandoned" is a local rule. According to Florida Rules of Judicial Administration, a local rule is a rule of "practice or procedure" for trial court application only; because local conditions require it. It provides an omission or facilitates an application of a statewide rule, but does not conflict. The Supreme Court authorizes local rules, not circuit chief judges.

The Palm Beach Administrative Order

The Palm Beach administrative order was challenged by a foreclosure defense attorney in Palm Beach County. Also, it has a similar counterpart in the Miami-Dade Circuit; it has only been challenged through individual cases to the Third District Court of Appeal. Thomas Hall represented him before the Supreme Court Local Rules Advisory Committee by Thomas Hall. He is a former clerk to the state Supreme Court and now an attorney with The Mills Firm in Tallahassee. "This opinion by the Local Rules Advisory Committee goes directly to the Florida Supreme Court, and the Supreme Court reviews the challenge and makes its own determination. But the committee exists to advise the Supreme Court about this sort of thing," Hall said.

Foreclosure defense attorneys and law firms representing the plaintiff mortgage lenders wacthed closely these abandonment rules. "There are other groups, certainly legal aid organizations, watching it because they are providing defense in a lot of foreclosure cases," Hall said. The administrative order, issued by Chief Judge Jeffrey Colbath in April, states motions in foreclosure cases that have not been set for a hearing within 10 days of filing. And, have not been heard within 90 days of filing, are to be deemed abandoned.

Judges Choosing Sides

Ice argued the order exceeds the authority of an administrative rule since such rules are restricted to housekeeping chores. Further, the rule puts judges in the position of choosing sides. This is because defendants, more often than not, are the parties filing motions to protect their interests. Plaintiff banks tend to be content to leave a case dormant. This is until it is in their economic interest to move to a foreclosure trial. First District Court of Appeal Chief Judge Robert T. Benton II, committee chair, summarized Colbath's defense of the administrative order in the committee opinion Benton issued Tuesday.

Considering Order in Isolation

The Palm Beach chief judge claimed considering the order in isolation is for the best. And, that it does not create a new procedure or rule. But, he states that it "amounts to nothing more than authorization for case management by a trial judge."
Colbath told the committee that since the order applies to both sides it does not unfairly target homeowners. He said it was not a local rule because it does not apply to all proceedings, only to foreclosures. And, it does not apply to all parties or attorneys. It applies only to those who fail to set motions in a timely fashion in foreclosure court.

"Finally, the chief judge emphasizes that a judicial determination of abandonment is not the same as denial of a motion or a ruling that a motion has been waived. The chief judge maintains that a party whose motion is deemed abandoned is not precluded from re-filing the motion," Benton said. Even though the order only applies to foreclosure cases, Benton said it applies to all foreclosure cases. He also states that "its scope, impact, and seriousness militate in favor of review by the Supreme Court, in the opinion of the committee."

Appropriate for Housekeeping Chores

Administrative orders, Benton continued, are appropriate for "housekeeping chores"; such as creating specialized divisions, assigning judges to particular divisions or court deputies to a particular judge. But Colbath's order should be viewed as a local rule. That is because it pertains directly to practice and procedure in the circuit, "even though it is not clear that the problem it addresses is specific to the Fifteenth Circuit."
Benton said the committee stands ready to address the merits of the dispute as the Supreme Court may direct.

Petition in the Fourth District

Fourth District passes In addition to challenging the order before the committee, the Palm Beach County foreclosure defense attorney sought review by the Fourth District. But on Oct. 30, the Fourth District denied the petition. The attorney said that the Fourth District passed. This is because it said his petition for review "is without prejudice to the aggrieved party."
He explained, "We didn't wait for any actual rulings on any individual cases. If you are someone who lost their right, lost a motion because it was being abandoned, you can still appeal that. The court said we're not going to strike it down in one fell swoop."

The Ruling

He was concerned in May when he first challenged the order; if he were to wait until a judge made an abandonment ruling, that delay could later be interpreted as a timely error. "With the Oct. 30 ruling, we got the green light, in terms of the court clarifying, 'No, you can appeal later,'” stated the attorney. Now that the committee has spoken, he said it should carry great weight with the Supreme Court; given the fact that the vote was unanimous.

Of the eight judges on the committee, six voted with the Palm Beach County foreclosure defense attorney’s position. The other two were absent. Amy S. Borman, general counsel for the Palm Beach Circuit, said that because the advisory committee's work is an active matter, the circuit cannot comment. She added, however, that the Fourth District's Oct. 30 decision also had the effect of lifting the stay on Colbath's foreclosure division orders.

If you have questions about Foreclosure, Loan Modification, Bankruptcy, Short Sale, or other alternatives, please feel free to call my office at 888-886-0020. Or, send an e-mail to, or complete the contact form below.

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