Litigation

Supreme Court Justices

By: Clark, Campbell, Lancaster & Munson, P.A.

 Q: How are state and federal Supreme Court justices appointed?

A: A swarm of controversy resulted from the death of United States Supreme Court Justice Antonin Scalia, as political parties argue over when a replacement should be appointed and by whom.  The appointment process for judges on the highest courts of both the country and the State of Florida involves steps covered by constitutions and tradition.

First, the United States Constitution requires the President to nominate justices for the United States Supreme Court.  Typically, the President will look for someone who is well qualified and serves his political interests.  Because the Senate’s consent is required before the nominee takes the bench, the President may discuss the nomination with key senators and choose someone who strikes a balance palatable to a majority of the gatekeepers.  The first gatekeeper is the Senate Judiciary Committee, currently made up of 11 Republican senators and 9 Democrats (none from Florida).  That committee, which as originally designed did not interview candidates, researches and reviews the candidate’s background and holds a hearing with witnesses in favor and against the nominee, including the nominee himself or herself answering committee questions.  Tradition calls for sending the nominee to the full Senate for consideration regardless of whether the recommendation is to confirm or to reject.  Because a vote of 60 of the 100 senators is required to stop a filibuster and to force a vote, 41 senators (and there are 54 Republican senators at the moment) could presumably block the vote from occurring.  Notwithstanding the political considerations, nominees have been confirmed almost ten times as often as rejected.  Notably, the Chief Justice position is not automatically filled by an existing justice, but rather that role is to be filled through these same confirmation proceedings.  Only about one-third of the Chief Justices ever sat as Associate Justices.

Second, there is the Florida Constitution.  Most of the procedures discussed above have formed from tradition and necessity, since the federal Constitution told us little more than that the President had to appoint justices with the advice and consent of the Senate.  Our state’s governing document is much more detailed.  Although the legislature does not serve a gatekeeping function, the governor’s choices are limited to the three to six nominees proposed by a Judicial Nominating Commission, which is made up of three lawyers appointed by the Florida Bar Board of Governors, three electors appointed by the governor, and three additional non-lawyer electors chosen by a majority vote of the first six commissioners mentioned.  While this process may appear to give the Governor great power in selecting the judiciary, the new justice will face statewide voter consent to retention at the first general election that occurs more than one year after the initial appointment.

With the vacancy left by Justice Scalia, there are eight sitting United States Supreme Court justices—four appointed by a Republican President and four appointed by a Democrat.  There are seven Florida justices, with the majority appointed by Republican governors.

The May 5th edition of “The Law” will discuss the display of political and other signs within a homeowners association.

Questions can be submitted online to thelaw@clarkcampbell-law.com

Lost Mortgage Docs

By: Clark, Campbell, Lancaster & Munson, P.A.

 Q: What happens if the lender trying to foreclose cannot produce the original loan documents?

A: In February, the appeals court governing our region of the state ruled against a mortgage company trying to “reestablish” a lost promissory note.* Because debt is often sold several times, national banks have cumbersome files, or otherwise, lenders lose with surprising frequency the original promissory note that creates evidence of the mortgage debt. The loss of that note creates a hurdle to the lender proving it is owed anything, but the greater concern is that the current owner of the note is the only one who can enforce it. So, if a transfer of the note occurred, the original owner of the note does not have the right to collect. If the note is “endorsed in blank”, even without a formal transfer, whoever is in possession of the note may be able to enforce and collect upon it. Courts do not want to enter, and homeowners do not want to endure, a foreclosure judgment only to find someone else holds the note and claims that the full amount of the note is still due.

To avoid such a scenario, but to prevent banks from losing out on repayment of the loan, the Florida legislature has created a process that allows the bank to “reestablish” a lost note. Not surprisingly, the bank must prove the existence and right to enforce the debt. A bank might try to comply with a combination of the mortgage, other closing documents, and repayment history. A bank also has to provide a lost note affidavit, which, among other things, swears to the fact that the note has not been transferred.

The subject of the court case mentioned above, however, was adequate protection. The court must evaluate what reasonable means will avoid or protect the homeowner in the scenario where someone else pops up claiming a right to sue under the promissory note. The statute does not provide specific guidance on what is reasonable or adequate, and in fact it appears from the case law that a court could make the finding that no protection is needed under the circumstances. The problem in the recent appeal was that the court did not address the issue at all. A court might require a written indemnification agreement in the final judgment, a posted bond, a letter of credit, or some other security.

These issues should be considered and addressed if you face a lawsuit where the foreclosing lender has failed to produce the original loan documents.

The April 21st edition of “The Law” will discuss the appointment process and role of state and federal Supreme Court justices.

Questions can be submitted online to thelaw@clarkcampbell-law.com

 * The recent case discussed above is Blitch v. Freedom Mortgage Corporation, with an opinion filed by the Second District Court of Appeal on February 5, 2016. The case was remanded for the trial court to address the issue of adequate protection.