Anybody who's been in state court lately knows the burdens of the foreclosure docket on the judges, clerks, staff, and of course the civil lawyers. It's a mess out there.

It's unclear whether the forced mediation route will lessen the overload, though it does hold some promise:

A task force convened by the Florida Supreme Court to examine the foreclosure crisis has endorsed that model, likening it to "off-ramps to get traffic off the road."

"In order to cope with the size of the problem, the huge numbers of incoming foreclosure cases, the Task Force concluded that only managed mediation could handle the problem in a consistent manner statewide," said its report, released Aug. 17.

But not all judges are on board.

Thomas McGrady, chief judge for the Sixth Circuit covering Pasco and Pinellas counties, said forcing mediations could be counterproductive and add expense, especially in cases where people have no real hope of keeping their homes.

"We're talking 10 percent maybe that are good candidates for mediation," said McGrady, who heard civil cases in Pinellas before becoming chief judge.

He favors identifying those top candidates and ordering them to the traditional mediation program available for any civil case.

But Gardner worries that unsophisticated borrowers would be at a disadvantage in that setting.

"Chances are, they're not really prepared," she said.

The Task Force report noted that in managed mediation, lenders may pay more up front but come out ahead if people are able to stay in their homes.

"Frankly, these lending institutions don't want the property. They really don't want the property," said Circuit Judge Lowell Bray, who works in New Port Richey. "Who knows what they're going to sell it for and when they're going to sell it?"

But Bray said he refers only a small fraction to mediation simply because most borrowers don't respond at all to the foreclosure suit.

"There is no issue to mediate," he said.

Right, often times the borrower does not show up, but that can be remedied through education, outreach, and pro bono efforts by legal aid organizations.

Meanwhile, here's an interesting judge from Brooklyn who handles foreclosure cases his way:

The judge, Arthur M. Schack, 64, fashions himself a judicial Don Quixote, tilting at the phalanxes of bankers, foreclosure facilitators and lawyers who file motions by the bale. While national debate focuses on bank bailouts and federal aid for homeowners that has been slow in coming, the hard reckonings of the foreclosure crisis are being made in courts like his, and Justice Schack’s sympathies are clear.

He has tossed out 46 of the 102 foreclosure motions that have come before him in the last two years. And his often scathing decisions, peppered with allusions to the Croesus-like wealth of bank presidents, have attracted the respectful attention of judges and lawyers from Florida to Ohio to California. At recent judicial conferences in Chicago and Arizona, several panelists praised his rulings as a possible national model.

His opinions, too, have been greeted by a cry of affront from a bank official or two, who say this judge stands in the way of what is rightfully theirs. HSBC bank appealed a recent ruling, saying he had set a “dangerous precedent” by acting as “both judge and jury,” throwing out cases even when homeowners had not responded to foreclosure motions.

Justice Schack, like a handful of state and federal judges, has taken a magnifying glass to the mortgage industry. In the gilded haste of the past decade, bankers handed out millions of mortgages — with terms good, bad and exotically ugly — then repackaged those loans for sale to investors from Connecticut to Singapore. Sloppiness reigned. So many papers have been lost, signatures misplaced and documents dated inaccurately that it is often not clear which bank owns the mortgage.

Justice Schack’s take is straightforward, and sends a tremor through some bank suites: If a bank cannot prove ownership, it cannot foreclose.

“If you are going to take away someone’s house, everything should be legal and correct,” he said. “I’m a strange guy — I don’t want to put a family on the street unless it’s legitimate.”

Justice Schack has small jowls and big black glasses, a thin mustache and not so many hairs combed across his scalp. He has the impish eyes of the high school social studies teacher he once was, aware that something untoward is probably going on at the back of his classroom.

He is Brooklyn born and bred, with a master’s degree in history and an office loaded with autographed baseballs and photographs of the Brooklyn Dodgers. His written decisions are a free-associative trip through popular, legal and literary culture, with a sideways glance at the business pages.

Confronted with a case in which Deutsche Bank and Goldman Sachs passed a defaulted mortgage back and forth and lost track of the documents, the judge made reference to the film classic “It’s a Wonderful Life” and the evil banker played by Lionel Barrymore.

“Lenders should not lose sight,” Justice Schack wrote in that 2007 case, “that they are dealing with humanity, not with Mr. Potter’s ‘rabble’ and ‘cattle.’ Multibillion-dollar corporations must follow the same rules in the foreclosure actions as the local banks, savings and loan associations or credit unions, or else they have become the Mr. Potters of the 21st century.”

Last year, he chastised Wells Fargo for filing error-filled papers. “The court,” the judge wrote, “reminds Wells Fargo of Cassius’s advice to Brutus in Act 1, Scene 2 of William Shakespeare’s ‘Julius Caesar’: ‘The fault, dear Brutus, is not in our stars, but in ourselves.’ ”

Then there is a Deutsche Bank case from 2008, the juicy part of which he reads aloud:

“The court wonders if the instant foreclosure action is a corporate ‘Kansas City Shuffle,’ a complex confidence game,” he reads. “In the 2006 film ‘Lucky Number Slevin,’ Mr. Goodkat, a hit man played by Bruce Willis, explains: ‘A Kansas City Shuffle is when everybody looks right, you go left.’ ”

The banks’ reaction? Justice Schack shrugs. “They probably curse at me,” he says, “but no one is interested in some little judge.”

Julius Caesar, Mr. Potter, Kansas City Shuffle -- sign this judge up for the blog!

Consider the career trajectory of former SSD corporate associate Raquel James.

Here she is in 2006, assisting Abbott Labs in a huge $3.7 billion acquisition:

Global law firm Squire, Sanders & Dempsey L.L.P. is serving as Florida counsel for Abbott Laboratories in its pending multibillion-dollar acquisition of Kos Pharmaceuticals. Abbott announced the acquisition on Nov. 6 through a cash tender offer of US$78 per common share. Both companies are publicly held.

Abbott is a global health care products maker, and Kos is a specialty pharmaceutical company founded in Florida. The acquisition will expand Abbott’s presence in the growing lipid-management market. Abbott’s lead outside counsel Covington & Burling LLP called on Squire Sanders to support the transaction during the bidding stage.

Lawyers from three of Squire Sanders’ four Florida offices are participating in this engagement. They include Gary P. Timin (corporate and insurance, Tallahassee); Thomas R. McGuigan, Jeffrey I. Mullens and Scott M. Coffey and (all corporate, West Palm Beach); Thomas V. Eagan (real estate, Miami); and Craig D. Linder and Raquel James (corporate, Miami).

But last week Raquel, who is no longer listed as an attorney on the SSD website, was driving up to Tampa to learn how to fight foreclosures from the indomitable Legal Aid foreclosure expert April Charney:

"I've never done foreclosures, but we all have to eat,'' says Raquel James, a corporate lawyer who has driven from Miami to hear Charney.

Quite true.

Raquel, if you are out there -- hang in there.

I suspect your new career path will ultimately be a lot more satisfying and rewarding whether you do it for a year, two years, or a lifetime.

It's nice to see a good idea reach fruition, as is the case with UM Law Professor Michael Froomkin's Foreclosure Fellowships, which received national attention in this Time article:

That specter of judicial paralysis helped spur UM law professor Michael Froomkin to create the foreclosure defense program. It places fledgling attorneys like Paschal with legal aid service organizations to help tackle the backlog of cases — more than 50,000 foreclosure filings so far this year in Miami-Dade County alone. Many homeowners don't know what legal defenses are available to them as they battle lenders to keep their properties — or at least make foreclosure less painful, and costly. "Potentially, one of the most significant [defenses] is that the lender, because so many home loans were securitized during the housing boom, often doesn't even know who owns the mortgage anymore," says Froomkin. That, he adds, could throw into question the lender's right to bring the foreclosure case in the first place.

Carolina Lombardi, senior attorney at Legal Services of Greater Miami Inc., which is mentoring some of the UM fellows, says foreclosure defendants also need attorneys to help them fend off all too frequent lender practices such as exorbitant escrow claims. "Homeowners who have lawyers are usually prevailing in those cases," says Lombardi. But she notes that unless homeowners fall below the federal poverty line ($22,000 for a family of four), they can't qualify for the free legal aid that agencies like hers provide. That creates an obstacle for most foreclosure defendants, who aren't impoverished but, due to job loss and other circumstances that brought them to the brink of losing their home, often can't afford a lawyer.

Another impediment is foreclosure law itself, a bureaucratically convoluted field worthy of a Dickens novel. "It's a labor-intensive area of practice," says Paschal. "It involves a ton of paperwork." Yet another is the relatively low pay attorneys usually reap from defending foreclosure clients. Melanca Clark, counsel at the Brennan Center and co-author of this month's study, urges Congress and state legislatures to create incentives, like more funding for foreclosure legal representation, that "level the playing field" against lenders and their comparatively well paid lawyers. Restrictions on government funding for legal services should be relaxed, she says, especially rules that don't let victorious foreclosure defendants collect attorney fees, as prevailing parties in most other kinds of civil litigation do. "We need structural reforms as badly as we need more [foreclosure defense] lawyers," says Clark.

The Professor also points to this NYT article from Saturday on how some judges are holding banks' feet to the fire on producing the underlying mortgage documents, which in one case led a federal judge to dismiss a claim based on a securitized mortgage where the alleged assignee could not provide proof that it owned the underlying note, effectively wiping out a $461k debt.

I'm fine with all that, provided the Judge who dismissed the case did so without the slightest hint of compassion.

Hey, get to the state courthouse much?

Sure you do -- if you are a foreclosure mill:

From mid-2006 to mid-2007, about 35,000 civil cases were filed in Miami-Dade Circuit Court, according to the Office of State Courts Administrators, or OSCA. The number shot up to 65,000 the next year, and Bailey said the increase is attributable to the spike in foreclosures.

“This is a bigger crisis than the 11th Circuit can solve,” she said.

Bailey is planning to launch an ambitious pilot project in the next couple months aimed at softening the crunch by funneling foreclosures on homestead properties into mediation by the Collins Center, a nonprofit Tallahassee think tank specializing in dispute resolution.

“At the end of the day you’ve still got a loan that’s not being paid, and what are we going to do with it?” Bailey asked.

Other South Florida counties have seen a similar surge in filings. Broward’s civil case count went from 27,000 to 51,000 filings, and Palm Beach went from 18,000 to 34,000 filings in the same period. It’s impossible to tell exactly how many cases were foreclosures because OSCA doesn’t track foreclosures independently of civil cases.

Judges everywhere have seen foreclosures crowd their dockets, and they’re looking for ways to grapple with the problem.

Actually, I am advised that Judge Bailey has been working with --- yes -- Kendall Coffey --- and a number of other lawyers and organizations to push through a rule change at the Florida Supreme Court level so that the courts can at least get some kind of handle on these filings.

There's no magic bullet here, but at least some form of early mediation with an actual live body from the bank might help alleviate the crisis.

Billy Shields' best line from this excellent article:

Law firms specializing in initiating and prosecuting foreclosure actions are notoriously difficult to reach by phone, even for a judge.....

You mean, especially for a judge.