Bailey Seminar Transcript

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ORIGINAL
EXCERPTS OF:
FORECLOSURE SEMINAR
June 27, 2011
APEX REPORTING GROUP (954) 467-8204
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(Thereupon, the requested portion of Excerpt
No.1 begins.)
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JUDGE BAILEY:
And Judge Sigler is going to
help you on that road by addressing complaints and
motions successfully.
JUDGE SIGLER:
If you'll give me just a
moment, I need to see if I can make the PowerPoint
presentation work so you'll have something to stare at
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while you're pretending to listen.
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Good morning, sir.
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Is there a question?
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Hello.
I see a hand.
Hi.
I
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UNIDENTIFIED SPEAKER:
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JUDGE SIGLER:
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JUDGE SIGLER:
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a little bit?
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bit?
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Hi.
Can you turn the
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volume up just a little bit?
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Hi.
Can we turn the volume up just
Can we turn the volume up just a little
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It's all coming out of
that speaker.
JUDGE SIGLER:
Thank you.
This gentleman
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indicates that he would be glad to turn the volume up.
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But after you've listened to me for a little

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while, you may regret that request.
Well, good morning.
As Judge Bailey mentioned, my name is
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Victoria Sigler, and I'm here to talk about complaints.

We will not be taking any this morning.
So
if you have complaints, please during the coffee breaks
see Judge Bailey.
Oh, she's left.
Nevermind.
I've been a judge since 1995, working in
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County Court for a number of years, until 2000, when I
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became elevated -- just float right up to the top -- to
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the Circuit Court bench by Governor Bush, worked a
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couple of years in criminal, and in 2008 I came to
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civil just in time for foreclosures.
Yeah.
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Complaints .
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Motions to substitute for Judge Sigler.
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How many are in favor of that?
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All right.
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Complaints.
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A complaint should allege the following:
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Jurisdiction.
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Jurisdiction usually lies with the in ram.
All right.
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On the other hand, jurisdiction can also lie in -- it
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is a foreclosure seeking to enforce a note where the
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note was signed.

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But usually typically we'll see a
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jurisdiction allege,
County.
want to own yet another house .
anybody in Miami-Dade County."
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We
We can't sell to
the property is held, or some jurisdictional basis.

It shouldn't allege the fact of default.
Usually nonpayment of the mortgage.
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We want to sell it to Miami-Dade County.
So jurisdictions are usually alleged where
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"The property's in Miami-Dade
What other facts can you think of that would

trigger a default?
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Well, if it's not a PIP, nonpayment of taxes,
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or not paying insurance or a couple other small facts
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that could trigger a default -- if they weren't part of
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the principal, interest, taxes and insurance, a PITI
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payment.
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Acceleration.
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Some -- most notes have a clause in it for an
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acceleration.
This should be alleged in the complaint.
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I've seen maybe 10 percent of the notes that
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corne across my desk don't have an accelercttion clause.
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And if yours doesn't have an acceleration
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clause, then that would be one of the few ones in which
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you would not need to allege the acceleration.
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What else?
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An accurate legal description of the
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property.
Show of hands.
How many plaintiff's lawyers have had to file
a motion to correct the legal description of property?
You know who you are.
All righty.
How many judges have seen
motions to correct the accurate description of a legal
property after it's been sold?
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All righty, then.
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I'm just wondering for property lawyers of
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the future,
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going to law school and incurring a hundred thousand
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dollars worth of debt, what problems they are going to
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have in the future trying to clear up property issues
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for accurate and inaccurate descriptions of legal
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property.
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the generation now that is contemplating
Anyway, it would be helpful if the legal
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description of the property was given correctly the
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first time around.
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Just think -- let's see.
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And a good factoid to have in your complaint
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would be that the plaintiff is the holder, owner, and
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ho l der of the note.
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So case law for that proposition will be the

. ' ,," co_
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Eddison case out of the Florida Supreme Court in 1930.
Complaint.
Page 2.
Now, these days we have a requirement for
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verification of the factoids in the complaint.

This is applicable to all complaints that are
filed after February 11th of 2010.
It's -- this is
supported by Rule 1.10(b), and it's also referenced in
Florida Rule of Civil Procedure 2010.
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One of the primary purposes of this amendment
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was to ensure that plaintiffs and counsels do their due
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diligence and appropriately investigate and verify
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ownership of the note before the complaint is filed.
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It was also to conserve judicial resources
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that were being wasted on inappropriately pled of loss
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note counts and inconsistent allegations, as well as to
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prevent the wasting of judicial resources and harm to
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defendants resulting from suits brought by plaintiffs
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not entitled to enforce a note.
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I imagine I'm not the only judge in this room
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who has had the distinct displeasure of having two
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lawsuits regarding one piece of property.
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I've actually had two different banks, two
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different sets of plaintiffs' lawyers trying to
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foreclosure on the same note in the same piece of

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property.
In our case, we resolved it with a dual by
savers on the courthouse steps, but in the future the
verification clause is supposed to make plaintiffs
verify that they actually have the note and that they
are the ones who have the ability to go forward and sue
on the lawsuit.
And, finally, the verification clause gives
trial courts greater authority to sanction plaintiffs
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who make false allegations.
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Yeah.
Well, you got to have a little fun at work on

a daily basis.
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Now, complaints .
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Assignments.
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A complaint should allege the assignment, if
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applicable -- a couple cases, Johns out of the Supreme
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Court in 1938 and WM Specialty, oft quoted by plaintiff
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lawyers for virtually anything they want to quote it
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for.
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"Judge, we should -- oh, no, no, your Honor.
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Look at WM Specialty.
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covers everything.
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I'm sure that covers it.
It
After all, it is four pages long."
Anyway, if you look in -- you could have
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gotten a g r ownup to teach this, Judge Bailey.
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your chance.
I know, nobody else would do it.
You had
So you
,JJ
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get what you get.
Anyway.
Complaints should allege an assignment, if
applicable, according to Johns and WM Specialty.
Touch the button.
Assignment.
More on assignment In blue.
If the note and the mortgage was assigned,
the complaint should allege the assignment.
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Question?
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I think that's what query means.
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They both start with Q.
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Must the assignment be attached to the

complaint?
Show of hands.
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How many say yes?
How many say no?
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Same people voting.
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Be bold.
Be proud.
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Question.
All right.
You guys got
your basis covered.

Well, let's talk about that, because the
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issue of the assignment often comes up in motions to
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dismiss and answers.
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I'm certain that will be covered by one of my

erudite and sober colleagues over here.
Oh.
Only erudite.
Nevermind.
Okay.
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It's so early in the morning for you guys.
Anyway, we often hear,
"Judge, the complaint
should be dismissed because the assignment was not
attached. "
Well, the attachment of the assignment is not
required since the cause of action is based on the
mortgage itself, not the assignment.
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And what case should we see for that

proposition?
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WM Specialty.
Of course.
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But from a judge's perspective, plaintiff
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counsel alleges and attaches the assignment in the
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first place, and then there are no motions to dismiss
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for failure to attach the assignment.
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I'm thinking that's a win-win, from my point

of view.
I don't know about you.

So from -- if you have the assignment, it
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would be really swell if you attach it.
It eliminates
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the motions to dismiss that are filed and usually held
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about seven and a half months later on the first
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earliest docket we can get you in.
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So that builds a blend In the case.
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Not to mention all the billable hours for
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discovery disputes over, "Judge, we filed a request for
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production of the assignment, and they didn't mail it

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to us."
So that might be a reason to eliminate
interrogatories about,
assignment is.
to dismiss the assignment.
assignment, I'm saying it would be nice if you filed
it.
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"Tell us what color the
Produce the assignment," filing motions

If you just have the
On the other hand, if you look at Ahem, they

indicate that some of the things that absolutely,
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positively have to be attached to the complaint are the
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note and the mortgage.
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We can look at Florida Rule of Civil
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Procedure 1.130(a), and Ivan versus the FDIC out of the
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Second District to support that proposition of law.
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Defendants.
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What was I was thinking here?
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Oh.
A complaint should assert that the
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defendant is a proper party to the case, and the
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complaint should also assert and raise the interest of
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junior lienholders whose lien accrued subsequent to the
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mortgage.
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Miami-Dade County court cost liens for criminal
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defendants who are in jail and have costs assessed
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agai nst t h em, con dominium li ens are, for the most part,
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with very rare exceptions, junior lienholders, who
For example, second mortgages, tax liens,
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should be asserted in the complaint, or their rights
may not be as extinguished by the action.
And International Cowland, a recent case,
I -- a very -- very recent case from 1908, supports
that proposition.
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Now, the complaint should also include what

caused the default.
Was it the failure to pay the mortgage, or
was it failure to pay taxes or insurance?
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A complaint should also contain the legal
description of the property, as I suggested.
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It would be really swell if it was done right
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the first time, and attorney's flees -- just wash my
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tongue.
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must be pled or they are waived.
Can't do a thing with it
attorney's fees
I:
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Now, motions to substitute.
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A plaintiff should have had standing to file
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the complaint at the time the lawsuit was filed.

And so a motion to substitute must be
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measured by the facts that exist at the time the
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lawsuit was filed.
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Progressive speaks to this.
So does Vogus, a
little bit of an older case.

And a mot i on to substitute may be properly
filed if one of these acts had occurred:
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If a party dies.
Well, we rarely have a bank dying.
Well, wait.
We do.
I forgot.
This is
Miami.
So we often see motions to substitute parties
when a plaintiff goes out of business or is taken over
by the FDIC, but sometimes we'll see complaints where
it's filed against an original person who took the
mortgage out.
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Is that the mortgagor or the mortgagee?

of those two.
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Probably the mortgagor.
Anyway -- and that person passes away.
So
you probably would then need to
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One
Can you foreclosure a mortgage against a dead

person?
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Some people say yes.
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Property lawyers probably would say no on
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this.
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So if you find out that your defendant has
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passed away during the foreclosure -- passed by the
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very act of you serving him, you killed him.
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work.
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Nice
Go home and tell your mother what you did today.

Anyway, if the defendant passes away during
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the pendency of the litigation, you probably have an
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obligation to come into court and amend the complaint

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and designate their heirs and designees, and all those
other swell legal words for the people that are
standing in the shoes of the dead person.
Or sometimes we see transfers -- motions to
substitute where a party transfers his or her interest
in the cause of action.
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I think I spoke enough about dead people.

Let's move on, then.
The motion to substitute I often -- sometimes
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I see filed where the bank has sued the wrong -- where
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the wrong person or entity is suing.
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For example, Bank A files a lawsuit when they
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realize they had transferred that particular mortgage
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out of their portfolio long before the filing of the
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complaint.
And often lawyers will come in with their
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facts and argue that they are entitled to substitute a
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party when they have learned that Bank A didn't have
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the note at the time they filed the lawsuit.
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This is wrong, because the rule required the
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Bank A to have standing at the time they filed the
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lawsuit.
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So the more better -- or the more proper
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remedy would, of cour se, be to dismiss the action
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without prejudice and re-file the action naming the

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proper parties in the first place.
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If we look at Rule 1.420 (a) (1), there is some

citations to this.
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You will find a couple probably wrongly
decided cases out there, where judges have allowed a
party plaintiff -- particularly a plaintiff to be
substituted when the wrong bank was listed in the first
place.
If
But I would urge for you to read both
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Berman's and Ehrhardt's
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evidence fellah? -- Trawick's commentary on this issue
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for a good citation and good discussion about why this
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is an improper action to take on substituting a party
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plaintiff because of the requirement for standing at
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the time the lawsuit was filed.
~-
not Ehrhardt's
--
I'
who's the
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Yeah.
I know it's pretty boring stuff.
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How many people are here because they're
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interested in foreclosures?
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Uh-huh.
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How many people are here because they need
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Liars.
the CLE credits?
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All right, then.
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Motions to substitute.
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It's the better practice, when most --
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most
the triggering event for motions to assign

I
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motions to substitute is often the assignment, and it
is -- although it is not required to attach the
assignment to the motion itself, it is probably a
better practice to attach the assignment, which
transfers the interest.
Again, it puts the defendant on notice of the
act which triggers the request.
It eliminates the
second round of interrogatories and the second round of
requests for production by simply letting the defendant
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see the assignment in the first place.
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people coming into court to argue against the
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assignment, assuming the defense lawyers are up to
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speed on the law and (indiscernible) -- billable hours.
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And it eliminates all requests for interrogatories and
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requests for production, if you just attach the
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assignment.
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It eliminates
And by virtue of attaching the assignment,
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you're assuring yourself that the motion that you filed
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is indeed a proper motion and that you are representing
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the right party this week.
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I believe that's the end of my presentation,
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she said thankfully.
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Page 16
No. 2 begins.)
Thank you, Judge Sigler.
JUDGE BAILEY:
She did a great job.
Let me -- what I'm going to do with these
little sort of introductions is I'm just going to chime
in on a couple of things.
One of the things that has caused us a lot of
10
pain and heartburn at 35,000 feet is really when you
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file a complaint, look at the note and make sure, you
12
know, it's endorsed.
13
If it was made out to Acme Lending and we
14
just attach it to the complaint, and you're Bank of
15
America, it's going to draw a motion to dismiss almost
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immediately.
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And one of the things the verification --
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because you all know I was on the task force.
We're
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the ones that came up with the verification.
It was
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designed to try to force people to look at the
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documents you ' re filing.
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II'
If you have a note that you're attaching
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that's not endorsed to you, then wait to file the
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complaint until you get one that
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Page 17
No. 3 begins.)
JUDGE ARECES:
But there's no requirement
that an assignment be attached, from anything that I
saw.
And correct me if I'm wrong on any of this.
As all of you know, I don't ever claim to be
completely right at all.
10
You feel free to correct me.
11
case law, I'll be happy to look at it.
If you bring
12
Some of it I don't agree with anyway, but --
13
Now, back in 1938, the Florida Supreme Court
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held that:
"Any form of assignment of a mortgage,
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which transferred the real and beneficial
17
interest in securities unconditionally to the
18
assignee, will entitle assignee to maintain
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an action for foreclosure, or, if there had
20
been no written assignment, proof of purchase
21
to that would be sufficient to entitle
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assignee to foreclosure in equity."
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And this was Johns v Gillian.
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I think it's
up there by someone as well.

So this dates back to 1938.
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So there's no -- there's no real requirement
.for there even to be a document that is an assignment,
as long as the party who's bringing the cause of action
later establishes sufficient proof to show that they
actually bought this dec, that they are entitled.
So it's not really something that would
normally come up -- properly come up and be dealt with
in a motion to dismiss, for the most part.
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It's something that later would have to be

proved up.
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And if they can't prove it up, they're not
12
getting their judgment.
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(Thereupon, the requested portion of the

excerpt concludes.)
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,',
"
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CERTIFICATE
STATE OF FLORIDA
SS.
COUNTY OF BROWARD
I, JULIE MCGRATH, CERTIFY THAT I WAS
AUTHORIZED TO AND DID TRANSCRIBE THE FOREGOING RECORDED
EVENTS.
I DO FURTHER CERTIFY THAT THE FOREGOING IS A
10
TRUE AND ACCURATE TRANSCRIPT OF THE EVENTS AS PROVIDED
11
TO ME ON THE DVD TAKEN AT THE TIME, PLACE, AND THE DATE
12
HEREINABOVE SET FORTH.
13
I DO FURTHER CERTIFY THAT I AM NEITHER A
14
RELATIVE NOR EMPLOYEE, NOR ATTORNEY NOR COUNSEL OF ANY
15
OF THE PARTIES TO THIS ACTION, AND THAT I AM NEITHER A
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RELATIVE NOR EMPLOYEE OF SUCH ATTORNEY OR COUNSEL, OR
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LAW ENFORCEMENT OFFICIAL INVOLVED, AND THAT I AM NOT
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FINANCIALLY INTERESTED IN THE ACTION.
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WITNESS MY HAND AND OFFICIAL SEAL IN THE CITY
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OF FORT LAUDERDALE, COUNTY OF
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FLORIDA, THIS 17TH DAY OF NOVEMB
23
BY:
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JULIE MCGRATH, TYPIST
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APEX REPORTING GROUP (954)
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Page 1

June 27, 2011

APEX REPORTING GROUP (954) 467-8204

And Judge Sigler is going to

help you on that road by addressing complaints and

If you'll give me just a

moment, I need to see if I can make the PowerPoint

presentation work so you'll have something to stare at

while you're pretending to listen.

Good morning, sir.

volume up just a little bit?

Can we turn the volume up just

Can we turn the volume up just a little

It's all coming out of

indicates that he would be glad to turn the volume up.

But after you've listened to me for a little

while, you may regret that request.

Well, good morning.

As Judge Bailey mentioned, my name is

Victoria Sigler, and I'm here to talk about complaints.

if you have complaints, please during the coffee breaks

see Judge Bailey.

Oh, she's left.

I've been a judge since 1995, working in

County Court for a number of years, until 2000, when I

became elevated -- just float right up to the top -- to

the Circuit Court bench by Governor Bush, worked a

couple of years in criminal, and in 2008 I came to

civil just in time for foreclosures.

Motions to substitute for Judge Sigler.

How many are in favor of that?

A complaint should allege the following:

Jurisdiction usually lies with the in ram.

On the other hand, jurisdiction can also lie in -- it

is a foreclosure seeking to enforce a note where the

note was signed.

want to own yet another house .

anybody in Miami-Dade County."

the property is held, or some jurisdictional basis.

We want to sell it to Miami-Dade County.

So jurisdictions are usually alleged where

"The property's in Miami-Dade

What other facts can you think of that would

Well, if it's not a PIP, nonpayment of taxes,

or not paying insurance or a couple other small facts

that could trigger a default -- if they weren't part of

the principal, interest, taxes and insurance, a PITI

Some -- most notes have a clause in it for an

This should be alleged in the complaint.

I've seen maybe 10 percent of the notes that

corne across my desk don't have an accelercttion clause.

And if yours doesn't have an acceleration

clause, then that would be one of the few ones in which

you would not need to allege the acceleration.

How many plaintiff's lawyers have had to file

a motion to correct the legal description of property?

You know who you are.

How many judges have seen

motions to correct the accurate description of a legal

property after it's been sold?

All righty, then.

I'm just wondering for property lawyers of

going to law school and incurring a hundred thousand