The American Civil Liberties Union
filed a petition with a Florida appellate court Thursday, alleging intervention is needed to block the Twentieth Judicial Circuit Court in Lee County, Fla., from pushing foreclosure cases onto a mass docket that was designed to quickly handle an influx of foreclosure cases.
The ACLU petition, which is tied to the Merrigan v. Bank of New York Mellon foreclosure case, alleges the Circuit Court designed the docket in coordination with foreclosure law firms, including the embattled law firm of David J. Stern
. While BoNY Mellon is named in the petition, the case revolves solely on the issue of judicial proceedings.
When discussing plaintiff attorneys being involved in the program's creation, the ACLU says the Stern firm "was involved in the implementation of the mass foreclosure docket from its inception."
The case revolves around a mortgage issued to plaintiff, Georgi Merrigan, who ended up facing foreclosure after leaving her job to care for an ailing relative.
The ACLU is asking the Florida Second District Court of Appeals to recognize that the mass foreclosure docket established to expedite foreclosure cases actually violates Merrigan's "due process rights under the Florida and U.S. Constitutions." The docket works by assigning the cases to a specific group of designated judges.
The ACLU said in its complaint it wants the appellate court to recognize that the court's "established practice of the mass foreclosure docket is to force cases" into a system of "recurring hearings that benefits plaintiffs and rushes cases toward summary judgment or trial without giving homeowners a meaningful opportunity to develop their cases or present defenses."
The complaint alleges procedurally the mass docket violates due process rights by "categorically treating foreclosure cases differently than individual cases."
Merrigan and the ACLU are not asking the appellate court to address the merits of her foreclosure case, but to ensure her due process rights are not violated during the proceedings.
"Without relief from this Court, Ms. Merrigan will be subject to a novel and unauthorized set of judicial procedures that will systematically undercut her ability to seek discovery, refute facts proffered against her, and press her legal arguments," the ACLU alleged in its complaint.
The ACLU claims Lee County started hearing an influx of foreclosure cases on its specialized rocket docket in December 2008. The organization further alleges that they did this without having an "administrative order" for the mass foreclosure docket. The ACLU says this system deviates from the Florida Rules of Civil Procedure and Florida law.
On behalf of Merrigan, the ACLU also complained that "from its inception, the goal of the mass foreclosure docket has been to dispose of as many cases as possible as quickly as possible." While the catalyst for the docket was a backlog in foreclosure cases, the ACLU lawsuit alleged that "the de facto suspension of the ordinary procedural rules conflicts with clear instruction to the contrary from the chief justice of the Supreme Court of Florida."
The ACLU also says defendants like Merrigan are prejudiced by the docket's reliance on handling cases through summary judgment, a process that leans heavily for the plaintiff, the complaint alleged. Because the process set up through the mass foreclosure docket is designed to operate quickly, the ACLU alleged that even when appealing a foreclosure holding, defendants can end up in the unfortunate situation of obtaining relief after the foreclosure is already process and no relief is left to be granted.
A spokesperson for the Twentieth Judicial Circuit Court could not be immediately reached for comment.
Write to Kerri Panchuk.