Transcript
Hearing
February 11, 2011 1
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CASE NO. 09-4075 CA 01
CENTRAL MORTGAGE COMPANY, Plaintiff, vs. EDUARDO GONZALEZ DEL REAL, ET AL., Defendants. _____________________________/
HEARING BEFORE THE HONORABLE JUDGE MAXINE COHEN LANDO FRIDAY, FEBRUARY 11, 2011 9:15 a.m. - 10:00 a.m. 73 WEST FLAGLER STREET MIAMI, FLORIDA -
Reported By: Katiana Louis Notary Public, State of Florida Miami Office #207219
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APPEARANCES: On behalf of the Plaintiff: BEN-EZRA & KATZ, P.A. 2901 Stirling Road Suite 300 Fort Lauderdale, Florida 33312 BY: MARC A. BEN-EZRA, ESQ. SUSAN ROSALES, ESQ. DAVID KARPINIA, ESQ DOUG HARRISON, ESQ. On behalf of the Defendant: 1740 Northwest 93rd Avenue Miami, Florida 33172 BY: MARIA MUSSARI, ESQ. DAVID GORDON CORNELL, ESQ. 6510 Brava Way Boca Raton, Florida 33433
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(The following proceedings were had at 9:15 a.m.) MS. MUSSARI: Honor. THE COURT: THE BAILIFF: THE COURT: to show cause. THE BAILIFF: THE COURT: MS. MUSSARI: 09-4075. THE COURT: reporter? MS. MUSSARI: Honor. THE COURT: MS. MUSSARI: for today. THE COURT: it all up. cause.
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Good morning, Your Good morning. Yes, Judge. There should be a rule This is number one. It's number one? Yes, Your Honor. Do we have a court We have two, Your We only need one. My motion to dismiss I think
before I start anything else -- Kim?
with prejudice, Your Honor, is also set Okay. Let me just pull
There were several motions,
but there's the Court's ordered to show
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For the record, this is Central Mortgage Company, Plaintiff, versus Eduardo Gonzalez Del Real et al.; is that correct? MS. MUSSARI: THE COURT: case? MS. MUSSARI: Your Honor, on January 21st, there was a hearing held on a motion to vacate judgment in this matter. Based upon the record itself in which the Court reviewed the file, found that the original mortgage that had been filed was not even the mortgage which is the subject of the foreclosure case. In addition, there was an assignment of mortgage that was filed from Argent Mortgage to Central Mortgage Company, that assignment of mortgage appears to be fraudulent on its face where it was -- and I want to get the dates right -- the assignment of mortgage says that it was effective on September 1st of 2009. However, a
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Yes, Your Honor. And, Counsel, will you
recite for the Court a history of this
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representative of Argent Mortgage Company signed it on January 6th of 2008. And it was notarized in California pursuant to a California All-Purpose Acknowledgement dated January 20th of 2009. Additionally, the first page of the assignment, the bottom portion where it should be notarized is X'd out. says, "see attached." It And then the
All-Purpose Acknowledgement is attached having been notarized more than a year later. THE COURT: before the Court? MR. BEN-EZRA: MS. ROSALES: MR. CORNELL: MR. KARPINIA: THE COURT: Your Honor, Marc Susan Rosales on Attorney David David Karpinia on Ben-Ezra, Ben-Ezra & Katz. behalf of Ben-Ezra & Katz. Cornell, self-employed. behalf of Ben-Ezra & Katz. I think that these pleadings are signed by Mr. Cornell; is
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For the record, who is
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that correct?
Mr. Cornell? Well, I haven't had a Well, Mr. Cornell -I suggest you
MR. CORNELL: THE COURT: do so. MR. BEN-EZRA: THE COURT: THE COURT: Court has. MR. BEN-EZRA:
chance to review the file, but -Kim, do we have the file?
Your Honor, we can
address the concerns that Counsel has. Okay. Shall we? The -Then you are going to MR. BEN-EZRA:
need to address the concerns that the That's why we're The assignment
here first and foremost.
of mortgage contains a particular notarization document that is used in California. that. We have nothing to do with Our client doesn't have anything THE COURT: I'm sorry. No, no. An attorney Your Honor,
to do with that. doesn't stand behind their pleadings? MR. BEN-EZRA: we didn't notarize it. produce the document.
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We didn't
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In California there is this process, we've seen it in other California documents, where they attach a separate notary page like this one. The question about the date is a fairly simple clerical error. 2009, in January. It makes sense that this was actually executed in It's fairly common to make a clerical error at the beginning of the year where you use the previous year's date. So if you notice on the front of the assignment of mortgage somebody had typed, "signed on the 6th day of January 2008," just six days into the new year. However, it was 2009 at that time, which is consistent with what the notary says -THE COURT: Excuse me. Counsel, this is all speculation. correctly. What we're
here about is lawyers practicing law Lawyers reviewing the documents they submit to the Court and make sure that they are correct before they are submitted. And "it's not my
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fault," and "this is a clerical error," and "the dog ate my homework," isn't going to do. MR. BEN-EZRA: THE COURT: Your Honor, we're not here to say it's not our fault. Well, that's sure what We're talking about it sounds like to me. MR. BEN-EZRA: the document. address -THE COURT: this case. MR. BEN-EZRA: THE COURT: MR. BEN-EZRA: Yes, ma'am. If there is fraud There is fraud alleged. Counsel, let's talk about what was filed before the Court in And I'm happy to
alleged, I'm trying with due respect to the Court, and please no disrespect intended, trying to be able to address the question. THE COURT: Well, is this really the question, the real question is: What kind of supervision you as one of the named partners and your office was doing on a case like this with these
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recited facts.
And what kind of review
Mr. Cornell -- and Mr. Cornell, here is the file, take a look at it -- was doing before he filed these papers and filed, I think he should have filed if this is a residential mortgage foreclosure, an affidavit before the Court that these things are true and correct, that people were served, that he's reviewed all the documents, that this is a proper mortgage, when the mortgage that was filed was -- excuse me, did I hear that it was not the mortgage that belongs to this case? MR. BEN-EZRA: There was a mortgage -- the correct note was filed, and a mortgage with another borrower with the same last name was attached. It was later corrected in the record when we realized the mistake of the incorrect name of the mortgage in a different county. We did file with the And I believe Court the correct one.
that that's the set of documents that the Court entered judgment upon.
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MR. CORNELL: approach the bench? THE COURT: MR. CORNELL:
Your Honor, may I Yes. For the record, the
attorney who signed the filing of the original mortgage and assignment is Dominic -THE COURT: MR. CORNELL: Your Honor. THE COURT: Who is Dominic Abreu? He was an attorney MR. BEN-EZRA: THE COURT: Abreu. -- that is not me,
with our firm, Your Honor. And he's not there Correct. You have me here and anymore either, right? MR. BEN-EZRA: THE COURT: MR. BEN-EZRA: here. THE COURT: You know, Mr. Ben-Ezra, the Court's experience in the matter of foreclosures in general -- the Court's experience with law firms in these matters -- when I have to touch a file
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So --
you have other attorneys from our firm
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more times than I need to because of sloppy, shoddy, negligent work done by attorneys that rises to the level of gross negligence, especially in a matter like this, somebody's losing their house. The idea that these cases should be handled in some sort of factory fashion may be okay for you -MR. BEN-EZRA: THE COURT: for the Court. MR. BEN-EZRA: okay for me either. apologize for that. I can talk about the merits, but I know that you are upset by the waste of time. THE COURT: THE COURT: Look at this. May I approach? Look at this. Yes. MR. BEN-EZRA: Your Honor, it's not And I regret the No. -- but it is not okay
fact that your time was wasted and I
Now tell me that a lawyer, a real lawyer looking at this is not going to call their client up and say, "You know, I've
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got these papers and they just don't look right to me. You resubmit them." You're I mean, you're a lawyer.
supposed to be talking to your clients. Or is it just that you do everything your clients tell you to do, you blindly submit papers, that gets thrown in front of the Court. And that's what I'm This is seeing with a case like this. not the only case like this. MR. BEN-EZRA: Your Honor, that is very frustrating to me as well as you. I can address some things -THE COURT: It may be frustrating to you, Counsel, but I'm sure you're still -- your office collects your fees on every one of these cases. professional responsibility. MR. BEN-EZRA: systemic issues? THE COURT: First I would like to hear -- I mean, as far as I'm
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And in And you
terms of that, it means you have a being frustrated isn't going to do it. Would you like to hear things that we're doing to look at
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concerned -MR. BEN-EZRA: something out? THE COURT: dismissed. -- this case gets The It gets dismissed. May I point
foreclosure will get dismissed with prejudice because of unclean hands on the part of the plaintiff. your judgment on the note. MS. MUSSARI: You can have And when the
place gets sold, you can get your money. Your Honor, I actually want to bring something else to the Court's attention, which I attached to my motion to dismiss. It appears that there are two documents at the very end of my motion to dismiss attached as Exhibit E. My client was 1099 for the full price of this mortgage. And this 1099 says -- doesn't say Central Mortgage, it actually says, "Manna Mortgage Loan Trust" with a trust number after it. says, "account number," which matches this mortgage in the amount of 227,000-and change.
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It
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And if you see in box one it says, "date of lender's acquisition or acknowledgement of abandonment" is September 23, 2010, but yet the plaintiffs pushed forward on trying to foreclose on this property. on the note since -THE COURT: MS. MUSSARI: I think you're right. -- they dumped the So I don't even think they are entitled to judgment
entire principal balance on a 1099 and abandoned their security on the property. MR. BEN-EZRA: THE COURT: Has he deeded the property to our client? What's the difference? If you decide to 1099 them and your client takes it off the books, then I don't care whether he deeded it or not. He's paid for it. him. MR. BEN-EZRA: He's got the lien on I would like to be He's been charged for the income.
able to have the opportunity to address that issue more fully -THE COURT: You go right ahead.
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MR. BEN-EZRA: hearing. THE COURT:
-- in a separate
We are not prepared to -We're not going to have We are not
a separate hearing any more. Counsel.
having anymore time on this case, The Court is going to make its decision based on what's before the Court today. Very frankly, you're Why didn't coming in front of me, you should have walked in with these papers. you? papers? Why didn't you walk in with these Why is it that Defendants come
in with this? This was not properly researched by your office. You took the Court's Rule You are walking to Show Cause lightly.
in here, as far as I'm concerned, totally unprepared, except to make a bunch of flimsy excuses and to say, Judge, I'm really sorry. hurt us. Please don't We're going to do better now.
Tell me what you know about this file, Mr. Ben-Ezra. MR. BEN-EZRA: Your Honor, I
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reviewed the issues about the assignment of mortgage. I've reviewed the issue about the note or the mortgage and I reviewed the issue regarding the appearance at the hearing on the 21st, which I think is the hearing that made the Court -THE COURT: Did you review I'm not familiar Counsel's submissions? MR. BEN-EZRA: THE COURT: MS. MUSSARI: myself with the 1099. So you didn't review They were faxed to And I believe the submissions that were -their office, Your Honor.
that Ms. Rosales even called my office making sure that it was going to be faxed. THE COURT: review it. Okay. So nobody reviewed it, and you certainly didn't That's number one. Number two, if you'll notice on my Rule to Show Cause, when I tried to reach your office by telephone, me, the Court, on the 31st of January, I
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couldn't even get through.
I couldn't And I
get a human being on the phone.
believe, if I'm not mistaken, that opposing counsel came before the Court and also testified that -- or suggested to the Court because she wasn't under oath -- that she tried numerous times to reach somebody. And I hear time after time from your office, which is why I had to put this case over, that even when I fax you things -- I have lawyers walk in here and go, "Well, we don't get the faxes." Now I know you get the faxes. office? You're certainly not. Who the And this heck is reading what is sent to your is on a case where you come before the Court on a Rule to Show Cause knowing that I can hold you in contempt and send you to the Bar. If you don't care enough, Mr. Ben-Ezra, to review what is supposed to come in front of you, where your Bar license is on the line, because you bet this gets sent -- not only does the
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president of the Florida Bar want to know about these things but so does Tallahassee. And if you don't think that I'm going to send it to them, and I'm going to send them this transcript, you're wrong, sir. And the fact that you have not reviewed even what was submitted, tells me that you don't take any of this seriously. MR. BEN-EZRA: it very seriously. THE COURT: You know what, Mr. Ben-Ezra, as a judge for 20 years and a lawyer for 16 more than that, I've learned to go on what people do, not necessarily on what people say. MR. BEN-EZRA: doing. THE COURT: You better be prepared to tell me about this case because this is the case that you're here for contempt of court. MR. BEN-EZRA: May I see the document that you're talking about,
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Your Honor, we take
I'm prepared to tell
you about some of the things that we're
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please? MS. MUSSARI: THE COURT: Sure. Mr. Cornell, for the
record, you signed the motion for final summary judgment of foreclosure. MR. CORNELL: THE COURT: Yes, Your Honor. That means you stand
behind all of the documents -- when you sign a motion for summary judgment of foreclosure, sir, that means that all your documentation and all your ducks are in a row and you stand behind it. So the fact Mr. Abreu may have filed the actual note and the assignment is no never mind to me. MR. CORNELL: That means you Your Honor, that was I left the Is that reviewed these documents. filed after I left the firm. firm in May of 2000 -THE COURT: your signature? MR. CORNELL: THE COURT: summary judgment. Yes. It's a motion for That means you I'm sorry.
reviewed all of your documents,
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Mr. Cornell. MR. CORNELL: THE COURT: All the documents If you didn't have all that had been before me I reviewed. the assignments, how dare you file a motion for summary judgment before this Court. MR. BEN-EZRA: Your Honor, according to the Defendant's motion, this 1099 was received on or about February 1, 2011 -THE COURT: Okay. -- which was after MR. BEN-EZRA: raised -THE COURT: Mr. Ben-Ezra, do you not have the obligation to walk into this Court this morning fully prepared? MR. BEN-EZRA: prepared. THE COURT: Mr. Ben-Ezra. "our." No not "ours", yours, Yours personally. You're I'm tired of Your Honor, of course our intention is to be fully
the date of the incidents that are
standing in front of me.
You -- somebody is going to
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start taking responsibility for these files. And every individual is going to take responsibility for these files. And as far as I'm concerned, if you are the managing partner of this firm, that's also going to fall on your desk every single time. This is not the first time that you have been before me on a matter such as this on carelessness. It's not the first time I've dealt with carelessness and it's not going to happen again. MR. BEN-EZRA: Your Honor, this is I'm the first time I've been before you on an issue involving carelessness. this situation with you before. THE COURT: You better talk to some But you are talking of your in-court lawyers. MR. BEN-EZRA: THE COURT: time that you -THE COURT: I'm sorry. It seems to
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not personally aware of having been in
about it being a personal issue -No. -- this is the first MR. BEN-EZRA:
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me that you were in front of me on a different matter. matter. MR. BEN-EZRA: I was in front of That Your Honor on a different matter. is correct, Your Honor. Also, Your Honor, although Counsel points out in her motion that the defendant received this 1099 on or about February 1st, 2011, Counsel also points out to me that it was dated 9/23 -THE COURT: What Counsel pointed out to you, Mr. Ben-Ezra -- excuse me for interrupting -- is that she faxed it to your office prior to this hearing. MR. BEN-EZRA: We also don't have a We We don't copy of this attached to the fax. have a copy of the motion. have a copy of the 1099. THE COURT: I've got an officer of the Court standing in front of me who says, I faxed it to them and then we called their office to confirm. MR. BEN-EZRA: I believe her. That I apologize. You were in front of me on a different
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is not the point. THE COURT:
The final judgment -No, the point is that -- the final
somebody didn't review it. MR. BEN-EZRA: judgment, Your Honor, was entered in July, approximately two and a half months before the entry of the 1099. THE COURT: getting it. MR. BEN-EZRA: I'm getting that you're upset, Your Honor, and I'm concerned that you're upset -THE COURT: No, it has nothing to -- and I'm concerned do with me being upset. MR. BEN-EZRA: THE COURT: about the issue of being careless. And very frankly, this It's nothing word that you're using, "upset," I do this wearing the robe. personal. It's just that I sit here day You're still not
after day and I have a duty, a professional responsibility, as you do, to give my very best to every single file that I look at. This file is not, frankly, my very best because of what
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was filed and it's not your very best by any means. MR. BEN-EZRA: your very best. that. The issue as far as the 1099 goes, the 1099 would be relevant to the entry of the judgment. THE COURT: The judgment was Mr. Ben-Ezra, the only entered before the 1099. point I'm making is that you didn't read it before you walked into this courtroom. Period. Your Honor -No, ma'am -Your Honor, if MS. ROSALES: THE COURT: MR. BEN-EZRA: THE COURT: Your Honor, I understand the commitment to provide I'm all in favor of
you're taking action --- you are absolutely not going to say anything, because the last time that you were in front of me I made it very, very clear to you that it was Mr. Ben-Ezra that I wanted to review this and he can talk to you all he wants and if needs to refer to you, he can,
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but he is before the Court, and not you. MS. ROSALES: MR. BEN-EZRA: Yes, Your Honor. Your Honor, if there
is a suggestion that the case should be dismissed or the judgment vacated based on something having do with a 1099, the Court should know that the judgment was entered before this 1099 was issued. The 1099 was entirely not an issue, certainly not one that we were aware of, at the time of the entry of the judgment. THE COURT: Mr. Ben-Ezra, so many lawyers have touched this file so many times that I can only -- you've got this -- here is the faulty assignment that was filed by Ms. Boichen, that was filed April 13th, 2009. Then there was an answer filed by Mr. Del Real and the original foreclosure was filed by Marie Potapsin Nepal. And then it's also stamped I mean, you cannot even Celena Bibbins.
tell how many lawyers touched this file. There is one, two -- look, two
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lawyers just on the foreclosure complaint. MR. BEN-EZRA: THE COURT: Yes, ma'am. The Court is And the Court This is not going to
happen before me anymore. finding you in contempt.
is finding Mr. Cornell in contempt for failure to properly review your documents and for submitting them to the Court improperly reviewed. MR. BEN-EZRA: Your Honor, I'm prepared to talk to you about those documents that you are questioning. THE COURT: information. Well, what you started to talk to me about is pure conclusory So you better tell me who reviewed this and what calls they made to verify these documents because they clearly look faulty on their face. MR. BEN-EZRA: their face. THE COURT: No. Those are conclusory and you are just supposing. You can't tell me that you talked to the
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And I'm addressing
the Court why they are not faulty on
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woman who signed this document? MR. BEN-EZRA: I cannot. And I'm not going to tell you something that is not true, Your Honor. THE COURT: Then I don't want to hear it, because all you're doing is the same supposition that Joe Blow on the street could do. work. do. This is not lawyers' This is not the work that lawyers And this is not a properly filed
lawsuit because I'm questioning whether you even had the proper documentation in the first place. You filed an affidavit of law -- excuse me, not an affidavit, you filed a lost note count. MR. BEN-EZRA: At that time -- that was before the Supreme Court changed the procedure and alternative pleading to plead one possibility or another was permitted under the rules of civil procedure. THE COURT: Did you know when you filed the complaint, sir, whether or not you had the note and assignments. MR. BEN-EZRA: If we filed the lost
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note count, chances are we didn't -THE COURT: Chances --- I didn't file it. MR. BEN-EZRA:
But, Your Honor, if you're asking me a question, I'm not going to stand here and tell you something that's not true. THE COURT: I don't expect you to. But if you cannot hear what I'm saying to you, which is you're a lawyer, you can't file things until your ducks are in a row. I don't care what the banks -- your clients are telling you. Your job is to give your clients legal advice and you're not doing it. You are acting as a robot for a plaintiff who is not even giving you the information you need to file a proper foreclosure. this Court. MR. BEN-EZRA: Your Honor, we're And I concerned about proper practice, we're concerned about doing a good job. about quality practice. share those same concerns that you do I can talk to
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Now, if you choose to do
that, you do that at your peril before
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you about things that can make this better. THE COURT: I can talk to you about Don't things that can make this better. your documentation, all your assignments, your note, your mortgage and everything is a row. Period. file it. Now, could that cost you business? Gee, I don't know and that's not my problem. My problem is to make you Your Honor, I agree I've tried practice law responsibly. MR. BEN-EZRA: with the Court's concern about practicing law responsibly. to address -- I've tried to address the substantive issues that were raised. THE COURT: Mr. Ben-Ezra, you are I happen to be, probably a really nice man. MR. BEN-EZRA: actually. THE COURT: I'm sure you are.
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file foreclosures unless you have all
Don't file it. And
That's proper procedure.
you tell your clients you are unable to
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Okay. that.
And this has nothing do with This has to do with you being a
part of the problem that this Court faces every day where we are having to go back, where lawyers are having to be hired. Number one, you are going to pay this lawyer's fees for having to go back in and do this. MS. MUSSARI: Honor. THE COURT: And costs. Your Honor, it's not MR. BEN-EZRA: upset. THE COURT: Have you brought me in What one witness to show me that this assignment is a good assignment. the bottom. page -MR. BEN-EZRA: THE COURT: Correct. -- and on its face it this assignment is, it's crossed out on The jurat is the second And costs, Your
substantiated that -- I know that you're
does not seem to be a valid document. And it is misdated. MR. BEN-EZRA: Your Honor, I'm
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standing here -- you want an officer of the Court -- I'm standing here talking to you about my experience seeing many assignments that are executed in California. Your Honor, I'm talking to you to provide information -THE COURT: And I'm talking to you -- I understand about my experience. MR. BEN-EZRA: that -THE COURT: My experience is that lawyers who walk in here from these firms do nothing but a bunch of foreclosures every day, uncaring about their professional responsibility and this is a really good example of it. MR. BEN-EZRA: Judge, personally There is There is an awful that disturbs me an awful lot. an awful lot of care.
lot of work, just like there is on you. And I apologize for the fact that it has made it more difficult for the Court. apologize for the fact that my office put anything in front of you that may be
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I
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difficult to deal with or in any way frustrating to the Court. I'm here to be sincere. out that I'm a nice guy. You point I actually am.
And I'm actually here to be sincere. And I'm here to try to do the right thing. I can have an in camera discussion with you of some of the larger issues that might -THE COURT: courtroom. MR. BEN-EZRA: It's very embarrassing and I'm sure that it's helpful to the Court. THE COURT: It's not helpful to the Court, but it may be helpful to every single lawyer standing in this room right now to understand that the Eleventh Judicial Circuit -- and we have had judges meetings on this, and you can talk to our Chief Judge -- the Eleventh Judicial Circuit does not have a rocket docket. We take every case seriously. We No, you can't. There is a reason why I did this in a full
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believe that every case deserves the Court's full attention and we expect the lawyers on those cases to do the same. MR. BEN-EZRA: system. Judge, I'm all in favor of being a partner with the court I'm all in favor of being I'm all in favor of Those are respectful.
treating defendants with respect, and courtesy and dignity. every day. THE COURT: phone. Courtesy and dignity? I, a judge, couldn't get a lawyer on the You tell me how that is I wasn't there when We're courteous or dignified. MR. BEN-EZRA: you called, but the first option on our phone system is a judge's line. raises. looking into the issue that Your Honor We have some things that we are going to put in place to make it easier for a judge to be able to get into -THE COURT: Not just a judge. You say that you think that every litigant should be treated courteously and with
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principles that are used in my office
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dignity.
Do you know how many litigants
have walked into this courtroom and said, "I can't get lawyer on the phone. I don't know who to talk to." can't get anybody on the phone. Now, if you are going to represent these banks, these mortgage companies, then you will be accessible. are not. And you And I know that from my own They
experience of trying to get somebody from Ben-Ezra & Katz on the phone when this case came up on January 31st and it's recited in the Rule to Show Cause. MS. MUSSARI: Honor. THE COURT: Sorry, 21st. Your Honor, if we MR. BEN-EZRA: January 21st, Your
came in and we asked for a $3,500 fee on these cases, would you grant it? THE COURT: What's the difference? You want to give me hours that are realistic instead of telling me that somebody spent an hour researching the file when I know they haven't even looked at it.
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I mean, that's the -- you know, you are plucking a number out of your head, which very frankly is insulting to the Court because if you said to me, Judge, we would like to charge an hourly and we would like to do this by the hour, that would be honest. If you want to make a deal with your banks as to how much you're going to charge, that's up to you. MR. BEN-EZRA: Now I'm sharing a The courts concern similar to how the Court is sharing a concern with me. and the borrowers, and the borrowers' attorneys appreciate having very moderate fees on these cases. THE COURT: Well, they might -Judge, I'm as There is only -MR. BEN-EZRA: THE COURT: with that. MR. BEN-EZRA: We can keep trying And to work on doing better and better. We've added process experts who are
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frustrated as you are.
-- it has nothing do
I'm standing here committing to do that.
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attorneys in our firm to be able to work on improving processes and improving our ability to deliver quality services. THE COURT: Mr. Ben-Ezra, I hear you, but if you choose to accept the volume of cases that you do -- I mean, I used to tell -- lawyers would walk in in front of me, and any lawyer who has practiced in front of me will tell you that I'll tell them this straight out that I don't have a problem telling people what I think. If you want to take these cases, it's up to you to charge the fees, but then you are responsible for doing them diligently. I was a public defender for 11 years and nobody ever walked into my office that didn't get my very best effort. And it didn't have anything to do with my salary or what I charged per case, and that was whether I took a private client when I was in private practice, whether I did a court appointment. I did my best on each case for each client.
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Do not ever stand in front of me and say, "could we charge 3,500 per case." That has nothing do with me. Your business decisions have nothing to do with me. MR. BEN-EZRA: THE COURT: about this: They don't -How You know what, you
shouldn't charge 3,500 per case.
You should take less cases, So if that
Mr. Ben-Ezra, because you clearly can't handle the cases you've got. problem either. problem. MR. BEN-EZRA: I probably make less money than you think, but that's probably another story. THE COURT: problem. for. MR. BEN-EZRA: Honor. upsetting to you. THE COURT: It's not that it's upsetting to me, it's that -Toll Free: 800.211.3376 Facsimile: 305.493.3322 14th Floor 44 West Flagler Street Miami, FL 33130 www.esquiresolutions.com
means you make less money, that's not my None of that is my
None of that is my
We all work for what we work I understand, Your
I'm sorry that this case was
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MR. BEN-EZRA: THE COURT: negligent. on here? like this? practice is shoddy.
I am -It is grossly
-- this level of
It is worthy of a judge How dare you file something And come in front of the
looking at it, and saying, what is going
Court on a motion for final summary judgment with this sort of pleading, and with this sort of backup information. That is what this is about. MR. BEN-EZRA: separate issues. Well, there are two I'm addressing the I understand the
question about the backup information. The Court is upset. Court is upset, but the Court also doesn't want to hear -- it appears to me, I'm saying this with respect -THE COURT: speculation. I don't want to hear If you thought that this
case -- that the contempt that you're facing was important enough, boy, I sure would have had a witness here to say, yeah, I signed this. I notarized this. I was familiar with this file when I did
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this affidavit. that.
You chose not to do I believe that the
MR. BEN-EZRA:
company that signed the assignment of mortgage is not in business at this point in time, Judge. THE COURT: All the more reason. All the more reason MR. BEN-EZRA: doesn't exist? THE COURT: All the more reason that maybe you should have gotten a new affidavit, Mr. Ben-Ezra. You still don't get it. MR. BEN-EZRA: THE COURT: I do get it. Or maybe you should
to have a witness from a company that
have taken a voluntary dismissal before it went this far, and then refiled your assignments and affidavits properly. I mean, I'm not going to tell you how to practice law, but there certainly were things you could have and should have done to ameliorate this situation before it got this far, including when you got the Rule to Show Cause. Why
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didn't you take an immediate voluntary dismissal? Don't come in here now that you're facing contempt and tell me, "I'm very sorry, Judge." MR. BEN-EZRA: dismissal -THE COURT: upset with you. MR. BEN-EZRA: the situation. THE COURT: situation. I'm not upset with the Your Honor, can we And we The Court I'm a judge doing my job. You're upset with You know what? You I'm not keep saying I'm upset with you. Well, you might have been upset at me then for filing a
MR. BEN-EZRA: can -THE COURT:
take a voluntary dismissal now? No, not now.
has already dismissed it.
It is gone.
And the Court is finding you in contempt and you, sir, Mr. Cornell, for filing this in this manner when these documents are so questionable. costs.
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You are
to pay opposing counsel's fees and
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And the mortgage is dismissed with prejudice. And based on the 1099 the note is canceled and dismissed with prejudice as it looks like the note has been satisfied. And if they want to go for some other sort of judgment, I suppose they can do that. And the Court will draft an order finding you in contempt, finding you grossly negligent, both of you and I'm sending this to the Bar. enough. It's time that somebody looked at this stuff and reacted instead of waiting until you come in front of a judge, having a judge dress you down, which I'm very sorry to have to do and then say, "Wait a minute. this." When you got the first motion on this case, the first time that opposing counsel filed this motion, who couldn't get anybody in your office on the phone; is that correct, Counsel? MS. MUSSARI: The first time I
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This is just
We can fix
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called, they told me that they couldn't find that they had that file of the record. THE COURT: office? MS. MUSSARI: that, Your Honor. Several times after I would get And how many times did you attempt to contact Mr. Ben-Ezra's
transferred to voice mails, and told that somebody would call me back. Even this week alone on other files. I'm still waiting for somebody to call me back on other files and I still haven't received a call. THE COURT: case is done. The Court is making its findings on this case. been filed. This case should have never I don't believe that you I don't believe You I suggest you start addressing some of that, because this
had proper assignments.
you properly investigated this case. You have wasted the Court's time. have caused an incredible amount of unnecessary work. You have caused a
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lawyer unnecessarily to have to come in and defend on this case. This case should have never been filed until you had your documentation. And based on this jurat and this affidavit of indebtedness, which is crossed out on the bottom, a jurat affixed totally separate to the first page, it raises great speculation in the Court's mind. A great question in the Court's mind as to whether the jurat even belongs to this affidavit of indebtedness, number one. Number two, the original mortgage that was filed with this case was for a different property. This case has been sloppy from the very beginning. At no time did Ben-Ezra & Katz when they had the opportunity, take a voluntarily dismissal on this case so that they could fix or ameliorate any of these problems. Instead you chose to go forward. In addition to that, you failed to return phone calls of opposing counsel.
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You failed to diligently pursue this case by returning phone calls of opposing counsel. complaints. Those are all bar You failed to even You failed to return the
Court's phone calls.
make yourself available to the Court because the Court could not reach you. And it wasn't until I tried to reach you that I think Ms. Mussari came in here -was it the following week or two weeks later? MS. MUSSARI: THE COURT: file, by the way. The following week. The following week And no one having the
knowing absolutely nothing about this good sense to say, Judge, we messed up. We're taking a voluntary dismissal. We're going to review this whole thing. No. Instead you continued to pursue it when it was patently, patently a problem. MR. BEN-EZRA: in that litany. To address one of the earlier problems that you mentioned The question about the assignment of mortgage, you're
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suggesting that there is no indication that the notary -- that is the jurat that's attached to the second page that is connected with the first page. The jurat indicates that Patricia Olivera appeared before the notary and that in fact is who signed the document on the first page. THE COURT: If I'm not mistaken -was that -- there is an amended affidavit filed by Mr. Cornell of indebtedness. what. That's signed by a Janice Davis, vice president, I don't know of It simply says vice president. MR. BEN-EZRA: If you look at the There is in fact a connection between them:
beginning of the affidavit of indebtedness it says -THE COURT: servicing agent. MR. BEN-EZRA: Company. THE COURT: Well, how do I know? And then you
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She is an employee of Who the heck is that? Central Mortgage
the plaintiff and/or plaintiff's
And that's from Arkansas.
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have something else from California. MR. BEN-EZRA: Arkansas and -THE COURT: Then your affidavit of indebtedness needs to say I'm a vice president of Central Mortgage Company and I have personally reviewed this file. Not some -- and not some generalized document that could be used for just about anything and the blanks filled in. Now, if you don't start insisting upon that from your clients, please don't expect to bring summary judgements in front of me and if you do you will find them denied and set for trial. they can start flying in every single person who signs these affidavits of indebtedness. I'm done with this. Your Honor, the MR. BEN-EZRA: And Central Mortgage Company, Your Honor, is located in
plaintiff is listed in the style of the case and she indicates that she's the vice president. THE COURT: Of what?
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MR. BEN-EZRA: the -THE COURT: agent. Company? MR. BEN-EZRA: THE COURT: mortgage? MR. BEN-EZRA: THE COURT: Central Mortgage. THE COURT: complaint. THE COURT: MR. BEN-EZRA:
Of the plaintiff or It
No, it doesn't say. Who is the
says of the plaintiff or the servicing Which one is it? servicing agent for Central Mortgage Central Mortgage is
the servicing agent in this case. Then who holds the I'm not -The plaintiff is
Who holds the mortgage?
Who holds the mortgage? We can look at the
MR. BEN-EZRA:
And where is your power
of attorney for the servicing agent? How do I know that the servicing agent has any connection to this mortgage? MR. BEN-EZRA: if you'd like.
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Your Honor, if I can
go to the other point -- we can get it
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THE COURT: this one.
It's too late now on Also, if you're
MR. BEN-EZRA:
interested in referring me to the Bar, Your Honor has also -THE COURT: I have to send this. I'm I What they I'm finding you in contempt. have to direct it to the Bar. It's no never mind to me. with me. But by the canons of the judicial code, if I find a lawyer in contempt, as I am doing with you and with Mr. Cornell, I must forward it to the Bar. I will forward it with as much of Do a vanilla letter as I can, which is simply to say, here are my findings. as you wish. to the Bar -MR. BEN-EZRA: THE COURT: you that.
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finding you, your firm in contempt. do with it after that is up to them. If they
choose not to take action, that's fine
But I have to forward it Your Honor --
-- and I need to tell
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MR. BEN-EZRA: telling me.
Thank you for You can tell by
You have an option of not
finding me in contempt.
the record that you have set here today that my first involvement with this case started when you sent this order to show cause demanding that I appear here today. THE COURT: wrong. But that is what is so You had no supervision over --
did I -- was it four or five lawyers who have touched this file? MR. BEN-EZRA: Your Honor, if you have a firm that has multiple attorneys, do you expect the managing partner at -THE COURT: I expect this, I expect that if your firm doesn't look at these papers as -- because of the way your firm does run and because I know that you do it through policies and paralegals, that if you don't look up front and say to the servicing people, to the mortgage holders, look, we have to file appropriate papers with the Court. And you don't do that. I don't
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know that anybody does it but right now I've got you in front of me. MR. BEN-EZRA: I'm here. Yes, you do. And And I'm not shying away from I understand that and I But this -And I'm prepared
having you address me. THE COURT: appreciate it. to -THE COURT: What you needed to have done was to take this file and go through it page by page, and then you needed to have fessed up long before you walked in here this morning. MR. BEN-EZRA: the Court raised. Your Honor, I'm here I'm doing my best to I'm willing to and I'm talking about the issues that show responsibility.
MR. BEN-EZRA:
talk to the Court about some of the procedural issues that you're raising. The Court is upset. THE COURT: I understand that. You're taking it out on me. Mr. Ben-Ezra, I will review -- I am inclined and you should not be surprised to find an order
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holding you and Mr. Cornell in contempt. I'll review the order with Judge Bailey before I send it off. MR. BEN-EZRA: If I may ask, then, since the issue now has become between the Court and me, if you would give me the courtesy of having a conversation in chambers at your convenience before you sign such an order, I would appreciate it. THE COURT: MR. CORNELL: Yes. Thank you. Your Honor, I would MR. BEN-EZRA:
ask the same privilege. Many of the issues that were raised, that this Court has, you know transpired after I terminated my -THE COURT: Mr. Cornell, you filed You the motion for summary judgment. were responsible for reviewing the documents and making sure they were in order. And I hold you no less Your Honor, I'm responsible than Mr. Ben-Ezra. MR. CORNELL: responsible for those documents that
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were filed.
I am not responsible for
any breakdown in communications between the Court and the firm from May on -THE COURT: MR. CORNELL: THE COURT: MR. CORNELL: THE COURT: MR. CORNELL: You are correct. -- and you called the You had already left. I'm just placing it No, it's all right. For the record, since
law firm on January 21st -Mr. Cornell, you are correct. on the record, I apologize.
May of last year, the Florida Bar had my my contact information, my phone number and address. So the Florida Bar had the So if the Court current information.
needed to reach me since the Court has specifically mentioned or included in the contempt that we have failed to properly respond to Defendant and to the Court, the Court was on notice of what my proper contact information was. just for the record -THE COURT: Mr. Cornell, excuse me. However, as far as I'm concerned, if you
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So
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are going to withdraw from a case, you need to have filed some sort of motion or some sort of notice to the Court when you leave the firm. MR. CORNELL: When I left the firm there was -- to my knowledge, Your Honor, we don't have a policy or procedure for doing that. THE COURT: MR. CORNELL: Your Honor. That's not my fault. I understand that,
And nor was I given an
opportunity to do an inventory on my files to do that -THE COURT: Mr. Cornell, I will find you in contempt for the matters that you are responsible for. MR. BEN-EZRA: Your Honor, out of fairness, you certainly should not -with due respect to the Court, you should not hold Mr. Cornell in contempt for anything he didn't have anything to do with. THE COURT: I agree. I'm standing here I'm not happy
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MR. BEN-EZRA:
and telling you that.
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with the rest of this proceeding, but please don't blame him for something he didn't do. THE COURT: No, but I do blame him for very carelessly filing pleadings before the Court on a motion for summary judgment where he clearly did not have the verified documentation. The Court is ordering you to pay fees of opposing counsel and costs in the amount of -MS. MUSSARI: today. THE COURT: at a minimum. Including court And that is And if you want to sit I'm here all the reporter and transcripts. Your Honor, I have to total the cost because the costs of
down and review procedures with me, I'm available every day. time. And between Judge Bailey and
Judge Reyes and myself and unfortunately he's gone to probate, Judge Schwartz, we are probably more involved in foreclosures than just about any judges on the bench.
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And your lawyers, all of the in-court lawyers know that they can walk in any time and ask me any question about what my requirements are. darn things. And I've been here two years doing these And nobody walks in and says to me, Judge, what is the problem with this or what is the problem with that? Would you like us to change our As I said, I can't even get Judge, I'm willing procedures?
anybody from your firm on the phone. MR. BEN-EZRA: the hope that the -THE COURT: so. Court's findings. MR. BEN-EZRA: know that. THE COURT: THE COURT: proposed order. MS. MUSSARI: THE COURT: that.
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to sit down and have a conversation with You are welcome to do
There is nothing personal in the Thank you. Glad to
Thank you. Counsel, draft up a Yes, Your Honor. And you can charge for
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MS. MUSSARI: a.m.)
Thank you.
(The hearing was concluded at 10:00
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COURT CERTIFICATE - - - - -
STATE OF FLORIDA COUNTY OF MIAMI-DADE
I, Katiana Louis, Court Reporter and Notary Public, do hereby certify that I was authorized to and did stenographically report the foregoing proceedings and that the transcript is a true and correct transcription of my stenotype notes of the proceedings.
Dated this 11th day of February 2011.
Katiana Louis Notary Public, State of Florida Miami Office #207219
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