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Fireworks in open court today. Matthew Bavaro and Judge Alan Schwartz did not see eye-to-eye in today’s Miami-Dade foreclosure trial.

Tuesday 18th December 2012

by mbavaro

Many of you know that I was in trial this morning for a Miami-Dade County foreclosure client.  The judge was the Honorable Alan Schwartz.  It was quite the show that left jaws dropping in open court.   The judge allowed the note and mortgage into evidence without objection from me.  Then the bank tried to introduce the Notice of Acceleration and the loan payment history.  I objected and asked the court to allow me to voir dire the witness prior to the introduction of the records.  This means I asked for the right to question the witness about their knowledge regarding the records keeping practices of Bank of America.   The judge did not allow me to ask any questions at this stage and allowed the documents into evidence over objection.

So, the bank rested and I got an opportunity to cross examine the witness, or so I thought.  I was barely allowed to even ask a question.   He shot me down almost every time I asked something.  When I went to put my position on the record, he would not allow me to open my mouth.  Well, I am not a wall flower, I am going to stand up for my clients.

The acceleration notice that Bank of America sent was invalid in my opinion and about a dozen other judges around the state have found in favor of the homeowner on this very issue with the same acceleration letter from Bank of America.  When I raised this to him, he could not believe that I had the audacity to actually ask him to rule in favor of my client.  He implied that he is not going to allow a homeowner to stay in their homes without paying their mortgage even if the bank screwed up.  When I asked to read the appellate opinions into the record regarding the paragraph 22 defense,  his response was basically that he did not care about the letter they sent and the fact that they filed a foreclosure action alone is good enough for him.

At that point I asked the judge to respect my client’s due process rights and pointed out that he was ignoring appellate cases from around the state.   At that point he turned to the bank’s lawyer and said “I guess I better let  Benjamin Cordozo III ask some questions”.  I took this as a personal attack on me,  so I asked the judge to recuse himself because by making that statement he showed that he could not be fair to me or my client.   He then said that I should take it as a compliment, but he clearly did not mean it as a compliment.  He meant to insult me in my opinion.  I said that not only was it not a compliment, but I believe that the court intended to slight me in the middle of trial in front of a courtroom full of people.  He was not too pleased at this point that I was standing up to him.  I started to hand write a motion to recuse him on a piece of yellow notebook paper when he then said that he would recuse himself.

Afterwards when the court reporter started to get up, he made a number of personal attacks on me.  Fortunately, the court reporter got back in her seat and got the personal attacks on the record (hopefully, I am waiting for the transcript).  At one point he even said I would have a “short and unhappy career”.  I am not sure if that was meant to be a threat or not.  Well, Your Honor, I have been practicing law for over thirteen years and, thank the Almighty above, my career has been extremely successful because I work hard, I fight for my clients, and I never roll over and play dead.

In the thousands of cases I have handled, I do not recall ever asking  judges to disqualify themselves, but what is going on in Miami-Dade county before certain judges is a travesty of justice.  I see homeowner after homeowner losing their homes every day without regard to due process of law.  I even saw Judge Alan Schwartz force a case to trial when the homeowner had a Motion to Dismiss pending that had not been ruled on yet.  So, the homeowner did not even get to file any affirmative defenses!  The case was not at issue and it was CLEALRLY error to force the case to trial.  Of the 40 or so cases set for trial today, my client was the only one who walked out of there without a sale date, except for a couple of cases where the bank failed to show up.

Miami-Dade county is just setting hundreds of foreclosure cases for trial at a time without regard to whether any attorney is available or ready.  I think this is a problem and shows that in Miami-Dade county, they are just interested in plowing through foreclosures, not administering justice and due process.  I am an experienced trial attorney and I will try foreclosure cases all day long  because I love fighting for my clients.  However, at least give the homeowners a fair shake and rule in their favor when appropriate.

Read the recusal order here.

If you feel that you have been wronged by the judicial system in Miami-Dade County, please share your story in the comments section below.  I, and others, would love to hear about it.

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21 Responses to “Fireworks in open court today. Matthew Bavaro and Judge Alan Schwartz did not see eye-to-eye in today’s Miami-Dade foreclosure trial.”

  1. allie says:

    I love it! The world needs more attorneys like you.

  2. Howard Dillman says:

    This judge has been brow beating Attorney’s for decades. It is about time he retire from the bench permanently.

  3. [...] Bavaro, a fellow foreclosure defense attorney who practices in Miami. However, the story he posted on his blog today struck a cord with me, as it’s eerily similar to an experience I had in Miami a few weeks ago. At [...]

  4. Alrady 40 says:

    Follow the money, first poster said it, the pockets are lined by foreclosure actions. Our local foreclosure fighting group has known for a couple of years that the judges pensions are linked to bank investments… gee would you make the bank go under and your pension too? All judges with retirement accounts or bank accounts tied to the bank foreclosure action that they are ruling on SHOULD RECUSE THEMSELVES…..

  5. Lou says:

    sounds a lot like judge cox I’n Indian RIver County let’s verifications and bogus assignments like to bad you don’t pay the bank your out no matter what. Long as the publications are I’n order I’n her file your toast I’n pro se go to hell and burn she don’t care about nothing to facts no nothing your out. The judges are employed buy the state and state is I’n the banks pockets the Gov. Scott made 1 billion dollars I’n the housing crash and have to ask is he I’n possision of a blind trust to still profit fr people losing there homes? Florida AG Pam Bondie she is pro bank and running with the tampa foreclosure mills she want you to lose also. The people losing there homes or the ones that are doing well and keep saying the people who don’t pay must get out of there homes you and all the people better wake up Goverment is here and your stocks,Pension,Gold and freedom are next. My loan is with Bank of America of is owned buy New York melon I’n trust. This trust is 61 billion dollars large and my trust pool has been funded with the pipe fitters and plumbing unions and operating engineer union of Maine and I have put $123k down and I’n this home and made payments for 3 1/2 years but the bank stopped paying the inverstors 2 years before I stopped paying so the question is who trying to get a free home I can buy this home for $130 – $160 and Bank of America is trying to get my home for free. I have begged to get just a interest rate reduction that’s all no principle reduction how stupid is this. This country is over this is I believe the end and now is all for CHANGE god help is all. And let the JUDGES and BANKSTERS deal with God .

  6. peter k says:

    God Bless happy holidays
    thank you ,keep us posted we need to keep pompas asses in the spotlight and help one another as much as possible

  7. RS says:

    I’m in Broward, similar problem. Competent experienced Broward attorneys please leave details as reply.

  8. speedwayvictor says:

    lets start a rebellion

    • It’s started. Join the Mortgage Resistance of America. http://mortgageresistanceofamerica.com also on Facebook.

      I’ve been fighting the banks for over four years now. I have houses in California and Florida and haven’t paid on my mortgages in over four years on both the properties. My house in California is underwater by a million dollars +. The one in Florida has lost over half its value. I lost over $750K in equity on both houses. The only thing that keeps me in them is the banks have lost over $1.25M underwater.

  9. Bruce Herman says:

    I am a foreclosure defense attorney. Most of my cases are in Broward. Judge Shwartz apperantly has a behavior problem. Consider reproting him to the JQC or send the transcript if you have one.

    The following is a real-time transcript taken as closed captioning during the oral argument proceedings, and as such, may contain errors. This service is provided solely for the purpose of assisting those with disabilities and should be used for no other purpose. These are not legal documents, and may not be used as legal authority. This transcript is not an official document of the Florida Supreme Court.

    Inquiry Concerning a Judge: Alan R. Schwartz

    GOOD MORNING, LADIES AND GENTLEMEN. WELCOME TO THE FLORIDA SUPREME COURT. THE FIRST ITEM ON THE COURT’S AGENDA THIS MORNING RELATES TO THE INQUIRY CONCERNING A JUDGE ALAN SCHWARTZ. JUDGE SCHWARTZ, IF YOU WOULD BE KIND ENOUGH TO COME TO THE PODIUM. JUDGE SCHWARTZ, THE CIRCUMSTANCES FOR WHICH YOU HAVE BEEN REMANDED TO APPEAR BEFORE THE COURT, TODAY, ARE MOST DISTRESSING AND UNFORTUNATE, NOT ONLY FOR YOU PERSONALLY AND, ALSO, FOR THE JUDICIARY AND FOR THE LEGAL PROFESSION AS A WHOLE, AND IT IS TRULY SAD THAT YOUR IMPATIENCE AND DISCOURTEOUS CONDUCT HAVE LED TO THIS DAY. IN ACCORDANCE WITH THE JUDICIAL QUALIFICATION COMMISSION’S UNCONTESTED RECOMMENDATION THAT YOU RECEIVE A PUBLIC REPRIMAND AND CONSISTENT WITH OUR DECISION IN IN RE FRANK, WE HAVE REQUIRED YOU TO APPEAR BEFORE THE COURT, IN PERSON, TO RECEIVE THIS REPRIMAND. ON APRIL 26, 1999, THE INVESTIGATIVE PANEL OF THE JUDICIAL QUALIFICATIONS COMMISSION FILED A NOTICE OF FORMAL PROCEEDINGS IN THIS COURT, CHARGING YOU WITH VIOLATING CANNONS 1, 2 AND 3 OF THE CODE OF JUDICIAL CONDUCT. IN THE NOTICE OF FORMAL PROCEEDINGS, THE INVESTIGATIVE PANEL SET FORTH SUBSTANTIAL ALLEGATIONS IN SUPPORT OF THOSE CHARGES. INITIALLY, THE PANEL ALLEGED THAT THE JUDICIAL QUALIFICATIONS COMMISSION PREVIOUSLY HAD WARNED AND ADVISED YOU TO REFRAIN FROM RUDE, IMPATIENT, AND DISCOURTEOUS REMARKS FROM THE BENCH, ADDRESSED TO THOSE TO AND ABOUT COUNSEL AND CLIENTS AND OTHERWISE REFRAIN FROM VERBAL ABUSE FROM THOSE APPEARING BEFORE YOU. THE PANEL FURTHER ALLEGED THAT, DESPITE THESE PRIOR WARNINGS, YOU NONETHELESS DISPLAYED TEMPERATE AND IMPATIENT BEHAVIOR IN ORAL ARGUMENT AND IN TWO SUBSEQUENT APPELLATE PROCEEDINGS. SPECIFICALLY THE PANEL ALLEGED THAT YOU NEEDLESSLY AND RUDELY MADE DEROGATORY COMMENTS ABOUT A ST. THOMAS UNIVERSITY SCHOOL OF LAW FACULTY MEMBER, PROFFER AMY ROHNER, WHO WAS IN YOUR COURTROOM TO SUPERVISE SEVERAL LEGAL INTERNS PRESENTING LEGAL ARGUMENTS IN CASES PENDING THE FOURTH DISTRICT COURT OF APPEAL. FURTHER, THE PANEL ALLEGED THAT YOU ACTED IMPROPERLY, WHEN TWO OF THOSE LEGAL INTERNS, KELLY LYNCH AND ANNABELLE MUSZYNSKI, WERE PRESENTING ORAL ARGUMENTS FOR WHICH YOU WERE APART. YOU CUT SHORT BOTH INTERNS ORAL ARGUMENTS’ PRESENTATION, THE FIRST BY PREMATURELY EXITING THE BENCH AND THE SECOND BY INTERRUPTING THE INTERN AND TELLING HER TO SAVE THE REST OF THE TIME FOR REBUTTAL, IF THERE IS REBUTTAL. AFTER RECEIVING NOTICE OF THE FORMAL PROCEEDINGS, YOU ENTERED INTO A STIPULATION WITH THE JUDICIAL QUALIFICATIONS COMMISSION IN WHICH, ONE, YOU ACCEPTED AS TRUE, THE FACTS SET FORTH IN THE NOTICE AND, TWO, WAIVED YOUR RIGHT TO BOTH A HEARING AND TO SUBMIT FURTHER EVIDENCE OR PLEADINGS IN THE PROCEEDINGS. IN ADDITION, THE STIPULATION INDICATED THAT, PRIOR TO ANY REQUEST BEING MADE BY THE JUDICIAL QUALIFICATIONS COMMISSION, YOU HAD, ONE, VOLUNTARILY APOLOGIZED TO THE INDIVIDUALS IN RIGHT REGARDING YOUR DISCOURTEOUS CONDUCT AND, SECOND, THAT YOU HAD UNDERTAKEN A PROGRAM OF PERSONAL COUNSELING AND STRESS MANAGEMENT, AND, THREE, THAT YOU HAD EXPRESSED A WILLINGNESS FOR OTHER MEMBERS OF THE THIRD DISTRICT IN YOUR STEAD TO PRESIDE OVER ROUTINE MATTERS HEARD BY THREE-JUDGE PANELS, AND, FOURS, THAT YOU SOUGHT AND OBTAINED THE AGREEMENT OF YOUR FELLOW JUDGES FOR ALL ORAL ARGUMENTS TO BE RECORDED BY AUDIO AND VIDEO MEANS, IN ORDER TO MAKE UP SUCH ARGUMENTS READILY REVIEWABLE. BASED ON YOUR STIPULATIONS, ADMISSIONS AND ASSURANCES, AND AFTER OCCURRING YOUR EXTENSIVE AND DISTINGUISHED CAREER AS A MEMBER OF THE FLORIDA JUDICIARY, THE JUDICIAL QUALIFICATIONS COMMISSION HAS RECOMMENDED THAT YOU BE PUBLICLY REPRIMANDED FOR YOUR RUDE, IMPATIENT, AND DISCOURTEOUS CONDUCT, AND THAT YOU APPEAR HERE TO COMPLETE THE PROCESS. WE HAVE REQUIRED YOU TO DO SO, FINDING THE RECOMMENDATION TO BE SUPPORTED BY YOUR STIPULATION AND IN CONFORMITY WITH ESTABLISHED PRECEDENT. JUDGE SCHWARTZ, THE CODE OF JUDICIAL CONDUCT GOVERNS THE ACTIVITIES OF ALL MEMBERS OF THE JUDICIARY, AND IT CONTAINS THE ESSENTIAL PRINCIPLES BY WHICH OUR JUDICIARY IS GOVERNED. CANNON ONE OF THE CODE, WHICH YOU VIOLATED IN THIS CASE, STATES, QUOTE, A JUDGE SHOULD PARTICIPATE IN ESTABLISHING, MAINTAINING AND ENFORCING HIGH STANDARDS OF CONDUCT AND SHALL PERSONALLY OBSERVE THOSE STANDARDS, SO THAT THE INTEGRITY AND INDEPENDENCE OF THE JUDICIARY MAY BE PRESERVED, END QUOTE. THESE CONCEPTS OF INTEGRITY AND INDEPENDENCE ARE THE CORNERSTONES UPON WHICH OUR LEGAL SYSTEM IS BASED. CANNON 2-A, WHICH YOU, ALSO, VIOLATED, IN WHICH CASE STATES THAT, QUOTE, A JUDGE SHALL RESPECT AND COMPLY WITH THE LAW AND SHALL ACT, AT ALL TIMES, IN A MANNER THAT PROMOTES PUBLIC CONFIDENCE AND THE INTEGRITY AND IMPARTIALITY OF THE JUDICIARY, END QUOTE. CONDUCT SUCH AS THIS GOES TO THE VERY CORE OF THE PUBLIC TRUST AND CONFIDENCE OF OUR LEGAL SYSTEM. AND FINALLY, VARYING SECTIONS OF CANNON 3, WHICH FORM THE SUBSTANCE OF THAT WHICH HAS CAUSED THIS DAY TO OCCUR, ESTABLISH THAT, QUOTE, A JUDGE SHALL BE PATIENT, DIGNIFIED, AND COURTEOUS TO LITIGANTS, JURORS, WITNESSES, LAWYERS, AND OTHERS WITH WHOM THE JUDGE DEALS IN AN OFFICIAL CAPACITY. AND THAT A JUDGE SHALL ACCORD TO EVERY PERSON WHO HAS A LEGAL INTEREST IN A PROCEEDING OR THAT PERSON’S LAWYER THE RIGHT TO BE HEARD, ACCORDING TO LAW, END QUOTE. PUBLIC RESPECT FOR JUDICIAL INTEGRITY DEPENDS UPON OUR JURISTS BEING PATIENT AND COURTEOUS TO ALL. JUDGE SCHWARTZ, IT IS CLEAR THAT YOUR BEHAVIOR, FROM THE BENCH, IN THESE MATTERS ADDRESSED BY THE JUDICIAL QUALIFICATIONS COMMISSION, HERE, WERE IMPROPER. WE HAVE WEIGHED, HEAVILY, THE FACT THAT, EVEN BEFORE YOUR IMPROPER BEHAVIOR IN THESE INSTANCES, THE JUDICIAL QUALIFICATIONS COMMISSION HAD SPECIFICALLY WARNED YOU AND ADVISED YOU TO REFRAIN FROM EXHIBITING INTEMPERATE AND DISCOURTEOUS BEHAVIOR. IT IS CLEAR THAT YOU DID NOT HEED THOSE WARNINGS OR ADVICE, AND YOU SHOULD CONSIDER YOURSELF FORTUNATE THAT YOU ARE HERE FOR ONLY A REPRIMAND. IF NOT FOR YOUR COOPERATION IN THESE PROCEEDINGS, YOUR ATTEMPTS TO MAKE AMENDS FOR YOUR WRONG, YOUR MANY YEARS OF DISTINGUISHED SERVICE TO THE PEOPLE OF FLORIDA, AS A LAWYER, AND AS A JURIST, AND THE STEPS THAT YOU HAVE TAKEN TO HELP PREVENT SIMILAR BEHAVIOR FROM INCURING — OCCURING IN THE FUTURE, ARE MORE SEVERE SANCTION THAN A PUBLIC REPRIMAND RECOMMENDED BY THE JUDICIAL QUALIFICATION COMMISSION MAY HAVE BEEN APPROPRIATE. HOWEVER, WE SINCERELY HOPE THAT THIS PUBLIC REPRIMAND, ADMINISTERED BEFORE THIS COURT, WILL BE SUFFICIENT TO DEMONSTRATE, TO YOU, TO OTHER JUDGES, THAT ENGAGE IN SIMILAR CONDUCT AND BEHAVIOR, THAT SUCH MISCONDUCT WILL NOT BE TAKEN LIGHTLY. YOU MUST UNDERSTAND THAT THE TIME HAS ARRIVED THAT YOU SIMPLY CANNOT CONTINUE TO VERBALLY ABUSE THOSE APPEARING BEFORE YOU, AND YOUR IMPATIENCE AND YOUR DISCOURTEOUS CONDUCT WILL NOT BE TOLERATED. JUDGE SCHWARTZ, THIS PUBLIC REPRIMAND IS NOW CONCLUDED. THANK YOU. THE COURT WILL BE IN RECESS. THE MARSHAL: PLEASE RISE.

    • THE JUDGES HAVE BEEN SIDING WITH THE BANKS
      THEY WILL NOT BE FAIR TO ANY HOMEOWNER WHO TRIES TO GO AGAINST THE BANK
      THEY MAKE THEIR JUDGEMENT BEFORE YOU EVEN STARTED YOUR CASE
      BIAS AND UNJUST EVEN WITH ALL THE COMPLAINTS WITH THE OFFICE OF THE COMPTROLLER OF CURRENCY
      FEBECCA

  10. LaughingSong says:

    Can ye recall the Chief Judge then?

    • mbavaro says:

      The chief judge is an elected judge in Miami Dade County that is then elected by the judges to be the chief judge. They could lose an election and be removed by the voters.

  11. Edward young says:

    Why dont we start a recall campaign to remove the Judges that are not giving the homeowners their due process

    • mbavaro says:

      That’s a great idea. The problem with that though is that in Miami-Dade County, they are using retired judges that are not elected and not accountable to the electorate. The chief judge of Miami-Dade is the only one who can really address this.

      • Mark Bowen says:

        It would be interesting to try and find out if those senior/retired judges are serving in compliance with Fla.Stat. 25.073(2)(a). They may not be accountable to the electorate, but the Chief Justice is. Someone must be held to account for the statewide epidemic of due process rights violations.

  12. [...] a fellow foreclosure defense attorney who practices in Miami.  However, the story he posted on his blog today struck a cord with me, as it’s eerily similar to an experience I had in Miami a few weeks [...]

  13. AkivaPhoto.net (@kashapero) says:

    Right on, Matthew

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