Not Foreclosed

A judge who has been foreclosed is not foreclosed from handling foreclosure matters, according to a recent decision of the Florida Judicial Ethics Advisory Committee.

Approximately five years ago, the inquiring judge (and the judge’s spouse) were defendants in two lawsuits to foreclose on two residential mortgages the inquiring judge had taken on the family home. The foreclosure cases were resolved by short sale and the lawsuits were voluntarily dismissed a little less than four years ago.

The inquiring judge has now rotated back into the circuit-civil division where the judge sometimes handles older, and generally contentious, residential foreclosure cases. The judge inquires whether recusal is required from all residential mortgage cases, and, if not, whether disclosure is mandatory or merely prudent.

Opinion

The inquiring judge is not required to recuse himself for all residential mortgage cases by virtue of having been a defendant years ago in a foreclosure action. Although no Florida Judicial Ethics Advisory Committee Opinion has addressed the specific question raised by the inquiring judge, some prior opinions are instructive…

The inquiring judge is not obligated to disclose the mortgage foreclosure proceedings that occurred nearly four years ago. In cases involving a judge’s personal involvement in litigation, this Committee has only recommended disclosure during the time a judge is involved in the litigation and for a reasonable period thereafter. See Fla. JEAC Op. 12-09 (“While the judge is involved in the foreclosure litigation as a tenant/defendant, and for a reasonable time thereafter, the judge has a duty, in foreclosure proceedings assigned to the judge, to disclose the facts and circumstances of the judge’s own litigation.”); see also Fla. JEAC Op. 02-05 (“[I]f the judge’s personal matter does result in litigation and if attorneys representing the judge or his former spouse appear before the judge, then disclosure or recusal is warranted.”).

Some guidance for determining whether a reasonable period of time has elapsed is found in Florida Judicial Ethics Advisory Committee Opinion 95-16, where the Committee advised that after the passage of a year, it is proper for a judge to hear cases involving a lawyer or law firm that represented the judge in litigation. See Fla. JEAC Op. 01-17 (“This Committee believes that the inquiring judge should make a disclosure of the prior relationship for a reasonable period of time following the conclusion of the law firm’s representation. This disclosure of information is not an admission of bias but is necessary to enable a party to make an informed decision as to whether or not to seek disqualification. A reasonable period of time has previously been suggested by this Committee to be from several months to one year, depending upon the unique facts and circumstances of the representation.”)…

…the inquiring judge need not recuse from all mortgage foreclosure cases, nor from all cases involving the same lawyers, lenders, or assignees involved in the judge’s residential foreclosure. Nor does the judge need to disclose the mortgage foreclosures filed against the judge’s personal residence. However, if the same lawyers, lenders, or assignees appear before the judge, the judge should disclose the prior litigation until such time as no reasonable person would find the disclosure relevant to a determination of whether the judge’s impartiality might reasonably be questioned.

(Mike Frisch)