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.
Echevarria McCalla Raymer etc. v. Bradley Cole
SC05-564
>> THE NEXT MATTER ON OUR
DOCKET THIS MORNING IS THE
CASE OF ECHEVARRIA ET AL
VERSUS BRADLEY COLE EL AL.
>> I WOULD AS WE BEGIN
REMIND THE COUNSEL THAT THE
COURT HAS THOROUGHLY STUDIED
THE BRIEFS IN THE MATTER.
AND AT TIMES WE'RE QUITE
INQUISITIVE.
SO I WOULD URGE YOU TO USE
YOUR TIME JUDICIOUSLY SO AS
YOU WALK AWAY YOU WILL FEEL
AS YOU'VE BEEN ABLE TO
PRESENT YOUR ENTIRE ARGUE.
>> MAY IT PLEASE THE COURT.
I'M JOHN BERANEK
REPRESENTING THE PETITIONER,
ATTORNEY ECHEVARRIA AND THE
ECHEVARRIA LAW FIRM.
I OF COURSE HAVE LOOKED AT
THE CALENDAR.
AND THE COURT'S ONE-WEEK
DOCKET.
OF THIS BEING THE LAST DAY
OF IT.
IS CERTAINLY AN AMAZING
CASELOAD.
I'M CERTAINLY GLAD YOU HAVE
GOTTEN THROUGH TO THE LAST
DAY.
MR. BERANEK, CAN YOU FIRST
BRIEFLY ADDRESS THE ISSUE OF
CONFLICT, THE OPINION IN
THIS CASE CERTAINLY CAN BE
INTERPRETED AS BEING LIMITED
TO THE PARTICULAR STATUTE AT
ISSUE HERE AND SAYING THAT
THE LITIGATION PRIVILEGE
DOESN'T APPLY TO THAT
STATUTE.
IF WE INTERPRET IT IN THAT
WAY THERE WOULD BE NO
CONFLICT WITH THE 3rd DVA
DECISION WHICH INTERPRETING
BRIEFLY AT THIS A VERY
DIFFERENT STATUTE.
CAN YOU ADDRESS THAT.
>> YES, SIR.
OF COURSE, WE CONTEND THAT
THERE IS A CONFLICT BETWEEN
THE THIRD AND THE FIRST ON
THIS SIMPLE ISSUE -- IT'S
NOT SIMPLE.
ON THE ISSUE OF
WHETHER -- WHETHER YOU MAY
APPLY THE JUDICIAL IMMUNITY
RULE OR DOCTRINE TO
STATUTORY CAUSES OF ACTION.
AND THE FIRST SAID THAT YOU
MAY NOT APPLY IT AND THEY
DID SAY IN -- OR TO THESE
STATUTES THEY DID NOT SAY IT
MAY BE APPLIED TO OTHER
STATUTES.
AND SIMILARLY THE THIRD
DISTRICT DID NOT SAY
ANYTHING MORE THAN THE RULE
DOES APPLY TO STATUTORY
ANTITRUST CASES.
AND I WISH THERE WAS MORE I
CAN SAY, BUT, OBVIOUSLY,
THIS COURT HAS READ THE TWO
DECISIONS SIDE BY SIDE THE
CLEARLY LAWYERS AND JUDGES
IN READING THESE TWO
DECISIONS SIDE BY SIDE WOULD
BE PER FLEX -- PERPLEXED.
WOULD BE CONFUSED.
THEY WOULD NOT KNOW WHETHER
TO APPLY IT OR NOT APPLY IT
TO STATUTORY CASES.
AND WE THINK THAT THE FIRST
DISTRICT'S OPINION IS
OVERBROAD AND IT'S THE
MISAPPLICATION OF ALL OF THE
LAW FROM THIS COURT AND
OTHER FLORIDA COURTS ON THE
JUDICIAL IMMUNITY RULE.
IF WE ACCEPT THE PROPOSITION
THAT THERE IS A CONFLICT AND
WE ISSUE THE DECISION IN
THIS CASE, WHY ISN'T THE
POSITION THAT REALLY WAS SET
FORTH IN THE CASE BY THE
SECOND FEDERAL CIRCUIT, THE
LOGICAL POSITION THAT SHOULD
COME OUT OF THIS.
AND THAT IS THAT IF THERE IS
SOMETHING THAT IS DONE
DURING THE COURSE OF
LITIGATION AFTER A COMPLAINT
IS FILED THAT THE JUDICIAL
IMMUNITY APPLIES, BUT PRIOR
TO THAT TIME AS I UNDERSTAND
THESE WERE LETTERS PRIOR TO
THE ACTUAL FILING OF THE
FORECLOSURE.
THAT'S CORRECT, JUSTICE
WELLS.
>> JUDICIAL IMMUNITY
A -- DOESN'T APPLY.
AND THAT WOULD BE CONSISTENT,
REALLY WITH FRIDACICH AND
REALLY WHAT WAS SAID IN THE
JUDICIAL IMMUNITY CASE
WRITTEN BY JUSTICE OVERTON.
THAT USED IT OVER THE COURSE
OF LITIGATION.
>> JUSTICE WELL, I MEAN,
FIRST OF ALL, WE DO HAVE
OTHER LAW, OTHER CASE LAWS
IN THE STATE OF FLORIDA
SAYING THAT THIS PRIVILEGE,
THIS IMMUNITY APPLIES TO
MATTERS THAT ARE PRELIMINARY
TO LITIGATION AND OF COURSE
THAT'S THE -- THAT'S THE
BURTON vs. SALBERG.
WE DON'T HAVE A CASE OUT OF
THIS COURT.
>> NO, SIR NOT THAT
SPECIFICALLY ADDRESSES THAT.
BUT WE DO HAVE THAT CASE AND
WE ALSO HAVE -- WE ALSO
HAVE -- INDEED THE OPINION
OF THE FIRST DISTRICT HERE
WHICH SAID THIS WAS A LETTER
WRITTEN IN RESPONSE TO THE
CLIENT -- OR IN RESPONSE TO
THE DEBTORS DEMAND OR
REQUEST FROM -- THIS WAS A
LETTER WRITTEN BY THE LAW
FIRM AT THE OUTSET -- .
>> THANKS.
BUT MY CONCERN IS THAT IT
MAKES SOME SENSE TO ME THAT
THERE SHOULD BE A PROTECTION
FOR WHAT IS SAID IN
PREDISPOSITION, CONFERENCES
AND -- PREDEPPSITION
CONFERENCES AND IN THE
COURSE OF CALLING WITNESSES
TO THE STAND AND THINGS THAT
HAPPEN DURING LITIGATION.
BUT IT STRETCHES IT IT SEEMS
TO ME TO GIVE LAWYERS THIS
BLANKET PROTECTION FROM A
REMEDY THAT IS OUT THERE AND
FOR EVERYONE ELSE AGAINST
EVERYONE ELSE THAT COMMITS
THIS TYPE OF FRAUD OR
COMMITS A VIOLATION OF A
STATUTE THAT IS -- FOR THE
PROTECTION OF CONSUMERS.
>> JUSTICE, WE THINK THAT IN
THESE CIRCUMSTANCES, OF
COURSE, THE FIRST DISTRICT
NEVER GOT TO ANY OF THE
ISSUES THAT YOU ARE HAVE
JUST BROUGHT UP.
I MEAN, THEY SIMPLY SAID
THAT THE PRINCIPLE, THE
DOCTRINE HAS NO APPLICATION,
PERIOD.
SO THEY DIDN'T GET TO THE
QUESTION OF WAS IT A
PRELIMINARY STEP THAT WAS
REQUIRED FOR THIS LITIGATION
TO START.
IN OTHER WORDS.
>> SO JUST TO FOLLOW-UP ON
THAT.
YOU THEN ADVOCATING FOR AN
EQUAL APPLICATION OF THE
JUDICIAL IMMUNITY OR
LITIGATION PRIVILEGE WHETHER
IT'S A STATUTORY CAUSE OF
ACTION OR A COMMON LAW CAUSE
OF ACTION.
>> THAT IS -- YES, THAT'S MY
POSITION.
>> THEN MY QUESTION IS AND
IS WHAT WAS THE TRIAL
COURT'S PROVISO THAT REQUIRES
THAT PEOPLE WOULD ONLY BE IN
THE CLASS IF THE PAYMENT
RESULTED -- DID NOT RESULT
IN A MORTGAGE FORECLOSURE.
WOULD IT MATTER
WHETHER -- SHOULD IT EITHER
BE IN OR OUT ACCORDING TO
YOUR UNDERSTANDING OF THE
LIT TKPWEUGS PRIVILEGE?
>> JUSTICE
PARIENTE -- LITIGATION
PRIVILEGE.
>> JUSTICE PARENT I HAVE TO
ADMIT IT'S DIFFERENT TO
GRASP THE JUDGE'S RULING ON
THAT SUBJECT.
WHAT HE WAS TRYING TO DO
F -- WAS AVOID THE
APPLICATION OF THE IMMUNITY
RULE AND HE SAID SO THERE
WAS ANOTHER CASE, A FEDERAL
DISTRICT JUDGE CASE BY JUDGE
HURLY.
NOT JUDGE HURLY BY JUNK
HEUFRPBGEL THAT ALSO
INVOLVED A MORTGAGE
FORECLOSURE CASE.
HE CONCLUDED THAT IF A
ACTUAL FORECLOSURE JUDGMENT
HAD BEEN ISSUED THE JUDICIAL
IMMUNITY RULE WOULD APPLY
BUT IF A JUDGMENT HAD NOT
BEEN ISSUED IT WOULD NOT
APPLY.
>> THE -- IS IT YOUR
POSITION THAT PRESUIT
LETTERS DEMAND LETTERS THAT
ATTORNEYS WRITE BEFORE THE
INSTITUTION OF LITIGATION
ARE COVERED BY JUDICIAL
IMMUNITY?
>> IN THIS CIRCUMSTANCE,
YES.
ABSOLUTELY.
THIS WAS A CIRCUMSTANCE
WHERE MR. ECHEVARRIA WAS
HIRED BY THE BANK TO
FORECLOSE THE MORTGAGE.N`P@CD0%%--FORECLOSE THE MORTGAGE.
HE -- THE -- MR. COLE, HIMSELF A
FORMER BANK VICE-PRESIDENT
CALLED THE BANK AND SAID MY
MORTGAGE IS IN DEFAULT, I WANT
TO AVOID THE FORECLOSURE
COMPLAINT THAT'S COMING, WHAT DO
I DO?
SEND ME THE NUMBERS.
THEY SAID CALL OUR LAWYER.
HE CALLED THE FIRM, TALKED TO A
PARALEGAL.
THE NEXT DAY THE PARALEGAL GOT
THE LETTER OUT.
UNFORTUNATELY, THE LETTER DID
CONTAIN SOME MISTAKES, AND WE
HAVE ALL THIS BIG ISSUE ABOUT
IN-HOUSE COSTS, BUT FROM THE
STANDPOINT OF WAS THIS A
PRELIMINARY STEP THAT SHOULD BE
WITHIN THE PRIVILEGE.
>> SO THEN YOUR POG WOULD BE
THAT THIS -- POSITION WOULD BE
THAT THIS WHOLE ACTION SHOULD BE
DISMISSED BECAUSE ALL THESE
LETTERS WERE ALL PRELIMINARY TO
MORTGAGE FORECLOSURE ACTIONS, IS
THAT YOUR POSITION?
>> JUSTICE PARIENTE, I DON'T
KNOW ON EVERY OTHER LETTER.
THIS IS A CLASS ACTION AND THERE
COULD CONCEIVABLY BE SOME THAT
ARE NOT, BUT THIS ONE WAS.
>> WHAT WOULD BE THE
DISTINGUISHING ASPECT, IF YOU
CLAIM THAT LETTERS THAT ARE
PRELIMINARY TO A MORTGAGE
FORECLOSURE ACTION ARE IMMUNE
FROM -- THAT THEY'RE COVERED BY
THE PRIVILEGE, THEN FOLLOWING
YOUR POSITION, IT WOULD BE THIS
CLASS ACT, THE WHOLE CAUSE OF
ACTION SHOULD BE DISMISSED.
>> YES, IT WOULD BE.
>> WOULD THAT APPLY TO IF THE
LETTER HAD BEEN SENT, WOULD THAT
POSITION ALSO APPLY IF THAT SAME
LETTER, INSTEAD OF HAVING BEEN
SENT BY AN ATTORNEY, HAD BEEN
SENT BY THE BANK?
AND IF NOT, WHY NOT, BECAUSE
THERE IS SOME WITNESS PRIVILEGE.
>> YES, THERE CERTAINLY IS.
THE JEW DECIAL IMMUNITY RULE HEY
PLYS, AND IT PROTECTS THE JUDGE
IN THE CASE.
IT PROTECTS THE PARTIES IN THE
CASE.
AND IT PROTECTS THE LAWYERS IN
THE CASE.
AND SO CLEARLY, IF THE BANK HAD
SIMPLY WRITTEN THIS LETTER, IT
WOULD HAVE ALSO BEEN -- IF THEY
HAD WRITTEN IT AT THE DIRECT
REQUEST AND DEMAND OF THE
DEBTOR.
I MEAN, THE DEBTOR CALLS UP AND
SAYS I'M IN DEFAULT, PLEASE SEND
ME THE NUMBERS, AN THEY HE DO.
I MEAN, TO BE FRANK, AT THAT
POINT, I GUESS THAT'S REALLY A
LITTLE FURTHER AWAY FROM BEING
THE FIRST STEP IN LITIGATION, SO
PERHAPS I MISSPOKE THERE, JUDGE.
>> WELL, THEN, MR. COLE, WOULD
HE FALL IN TO THAT CATEGORY?
HE'S REALLY TRYING TO RESOLVE
HIS CASE, SO WE'RE NOT IN A CASE
WHICH IS ONE THAT'S POSSIBLY
GOING TO GO TO LITIGATION.
HE WANTS TO PAY THE MONEY AND
GET OUT OF THIS, SO WHY ISN'T
HE -- AND PEOPLE SIMILARLY
SITUATED TO HIM IN A DIFFERENT
SITUATION.
>> IT APPLIES TO HIM, BECAUSE
THIS -- THIS WAS THE FIRST STEP
IN THE MORTGAGE FORECHOSE YOU'RE
CASE.
IN OTHER WORDS, THE LAWYER WAS
HIRED TO FORECLOSE THE MORTGAGE.
THAT IS WHAT HE WAS DOING.
WHEN HE WAS -- WHEN THERE WAS A
DEMAND MADE BY THE DEBTOR, THE
LAWYER HAD TO GIVE HIM THE
NUMBERS, AND IF HE DIDN'T -- HE
COULD PAY IT OFF, WHICH IS OF
COURSE WHAT HE DID, AND THEN
THEY GOT IN VARIOUS ARGUMENTS
ABOUT VARIOUS NUMBERS, AND SOME
OF THE NUMBERS ARE WRONG, YOU
KNOW, WE -- AND ECHEVARRIA
MCCALLA ABSOLUTELY ADMITTED
THAT.
THE MORTGAGE FOES!!!!!!!!!! FOR CLOSURE CASE
HADN'T HEN BEEN FILED WHEN HE HE
SENT IT OUT.
>> WOULD YOUR POSITION BE
DIFFERENT IF THE ATTORNEYS WERE
THERE REALLY TO SEE HOW MUCH
MONEY THEY COULD COLLECT, HOW
MANY PEOPLE THEY COULD GET TO
ACTUALLY MAKE GOOD ON THEIR
MORTGAGES AS OPPOSED TO
FORECLOSE ON THEIR MORTGAGE?
>> DO YOU UNDERSTAND THE
QUESTION?
REALLY, NOT TO BRING LAWSUITS,
IF AT ALL POSSIBLE, BUT TO GET
AS MUCH MONEY ON THESE MORTGAGES
AS THEY COULD.
>> WELL, --
>> DOES THAT MAKE A DIFFERENCE?
>> WELL, I THINK IT DOES.
OR IT CERTAINLY COULD MAKE A
DIFFERENCE.
HE FORECLOSED HIS MORTGAGE,
THAT'S WHAT HIS LAW FIRM DOES,
AND HE HAS A RATHER MODERN
PRACTICE, WHERE HE HAS IN-HOUSE
PEOPLE DOING THE TITLE WORK.
WHICH HE BILLS AS A COST, BUT IF
WHAT YOU'RE TALKING ABOUT IS A
LAWYER THAT'S REALLY ACTING LIKE
A BILL COLLECTOR THAT GOES OUT
AND WRITES DUNNING LETTERS, JUST
TRYING TO COME UP WITH SOME
MONEY, BUT THAT'S NOT WHAT THE
BANK WAS AFTER HERE AND THAT'S
NOT WHAT ECHEVARRIA MCCALLA WAS
AFTER.
ONCE THESE THINGS GO INTO
DEFAULT, THEY WANT THEIR MONEY
OR THEY WANT -- THEY WANT ALL OF
THEIR MONEY, AND THEY WOULD
ACCELERATE THE NOTE, AND GO
FORWARD WITH IT, AND THAT'S WHAT
WAS GOING TO HAPPEN WITHIN 24
DAYS, WHICH WAS THE DUE DATE ON
THIS LETTER.
>> CAN I ASK YOU SOMETHING ABOUT
THE PARAMETERS OF THE PRIVILEGE?
IT SEEMS TO ME THAT THE REASON
FOR THE PRIVILEGE IS TO HAVE
FREE FLOW OF COMMUNICATION IN
LITIGATION, AND YOU DON'T WANT
PEOPLE NOT SAYING SOMETHING OR
NOT PROVIDING THE WHOLE TRUTH,
BECAUSE THEY'RE AFRAID OF BEING
SUED.
AND THE FACT THAT WE HAVE A
JUDGE NOW THAT CAN IMPOSE
CONTEMPT POW WEFERS, CASES HAVE
SAID -- POWERS.
ONE OF THE REASONS YOU HAVE A
JUDGE THAT CAN IMPOSE CONTEMPT
POWERS.
THE PROBLEM I SEE WITH YOUR
ARGUMENT HERE IS YOU ONLY HAVE
CONTEMPT POWERS ONCE A COMPLAINT
IS FILED.
BEFORE THAT, JUDGES!!!!!!!!!!!!!! JUDGE IS NOWHERE TO
BE SEEN.
SO WHY ISN'T THE BRIGHT MIND
RULE FOR LITIGATION ONLY APPLIES
ONCE LITIGATION IS COMMENCED
WHICH IS UPON FILING OF THE
COMPLAINT.
>> AND JUSTICE CANTERO, AGAIN,
BECAUSE THIS WAS A NECESSARY
STEP BEFORE THE COMPLAINT WAS
FILED.
>> BUT WHEN YOU SAY THAT, WHAT
DO YOU MEAN, NECESSARY STEP?
I MEAN, IS IT ABSOLUTELY
ESSENTIAL THAT THIS LETTER GO
OUT BEFORE YOU FILE A MORTGAGE
FORECHOSE YOU'RE ACTION?
>> NO, OF COURSE, YOU CAN FILE A
MORTGAGE FORECLOSURE ACTION, BUT
IF THE DEBTOR, IF THE DEBTOR
MAKES CONTACT AND SAYS, I WANT
TO PAY SOMETHING, SEND ME A
REINSTATEMENT LETTER, I MEAN,
UNDER THE MORTGAGE, HE HAS A
RIGHT TO REINSTATEMENT UNDER
CERTAIN CONDITIONS.
AND IF HE ASKS FOR THE
REINSTATEMENT NUMBERS, THE BANK,
THROUGH ITS ATTORNEY, WHO'S
HIRED TO FORECLOSE THE MORTGAGE,
HAS TO GIVE IT TO HIM.
>> MR. BERANEK, YOU ARE INTO
YOUR REBUTTAL.
I WOULD LIKE YOU TO ANSWER, WHEN
YOU COME BACK, JUSTICE CANTERO'S
AND JUSTICE WELLS' QUESTION
DIRECTED TO THE PHILOSOPHICAL
BASIS, SHOULD ATTORNEYS OCCUPY A
SPECIAL STATUS, WHICH IS WHAT
THEY WERE INQUIRING ABOUT.
I'M NOT SURE YOU GOT A CHANCE TO
ANSWER THAT.
>>LY CERTAINLY DO IT IF I HAVE
TIME ON REBUTTAL.
>> MR. TURNER.
>> I WANT TO ADDRESS TWO POINT
WHICH IS ABOUT THIS STATUTE.
UNDERSTAND THE UNIQUENESS OF
THIS STATUTE, AND WHY THIS
STATUTE DOES APPLY TO ATTORNEYS
AND ATTORNEYS IN LITIGATION AND
I ALSO WANT TO DISCUSS THE ISSUE
OF WHETHER THIS REINSTATEMENT
LETTER IS IN FACT SUBJECT TO
PRIVILEGE IF IT WERE APPLICABLE.
LET ME START WITH THE LAST
POINT.
THIS IS A REINSTATEMENT LETTER,
IT IS NOT A STATEMENT -- A A
STATEMENT RELEVANT TO THE
LITIGATION TO ADVANCE THE
PROSECUTION OF THE CASE.
THIS CASE INVOLVES A MIS!!!!!!
MISREPRESENTATION REGARDING THE
DEBTOR'S RIGHT TO BRING THE
MORTGAGE CURRENT BY AN ATTORNEY
MAKING FALSE STATEMENTS FOR HIS
OWN BENEFIT.
>> WELL IS IT YOUR POSITION THAT
BECAUSE THIS IS A STATUTORY
CAUSE OF ACTION THAT EVEN IN
THOSE INSTANCES IN WHICH A
COMPLAINT HAS BEEN FILED THAT
JUDICIAL IMMUNITY DOES NOT
APPLY?
>> FIRST AFTER YOU!!!!!!!! ALL, WE'RE
DEALING WITH LITIGATION.
THIS STATUTE APPLIES TO ANYTHING
IN LITIGATION.
THE UNITED STATES SUPREME COURT
DECIDED THAT WITH A COMPANION
FEDERAL ACT.
THIS STATUTE, I'LL START WITH
THE STATUTE FIRST, THE STATUTE
DESIGN IS DESIGNED AND PROTECTS
INDIVIDUAL CONSUMER DEBTORS IN
PERSONAL, FAMILY, OR HOUSEHOLD
TRANSACTIONS.
IT PROTECT PEOPLE THAT ARE
EASILY PREYED UPON, THAT CAN'T
AFFORD LITIGATION, THAT CAN'T BE
IN LITIGATION, THEY CAN'T AFFORD
LAWYERS TO PROTECT THEM, AND
WHAT THE STATUTE DOES IS SET UP
A SPECIAL PROTECTION BY PEOPLE
WHO ARE COLLECTING DEBTS IN ANY
CAPACITY TO BE CAREFUL, TO
FILTER THESE THINGS, SO THEY
ONLY SEEK WHAT IS BONAFIDE, WHAT
THEY BELIEVE IS BONAFIDE AND
ACTUALLY OWED, AND THAT IS WHY
THIS STATUTE AND THE UNITED
STATES SUPREME COURT HAS
INTERPRETED THIS SAME FEDERAL
STATUTE, APPLIES EVEN IN
LITIGATION.
WAY AT THE END, BECAUSE WE DON'T
REALLY HAVE TO GET TO THIS
QUESTION OF FORCE FOR THE MANY
REASONS Y'ALL HAVE OBSERVED
ALREADY, BUT EVEN IF WE GET TO
THE END, THE UNITED STATES
SUPREME COURT HAS SAID THE
FEDERAL STATUTE, FAIR DEBT
COLLECTION ACT, WHICH IS A
COMPANION TYPE STATUTE, APPLIES
HERE TO THIS SITUATION IN
DEALING WITH LETTERS, IN THE
COMPLAINT OR LETTERS DEALING
WITH PAYMENT.
SO IT IS A SITUATION WHERE THE
STATUTE IS DESIGNED TO PROTECT
THE VERY THING THAT IS GOING ON
HERE.
>> ONE WAY TO READ THE D.C.A.'S
DECISION IS VERY BROAD, AND THAT
IS THAT THE D.C.A. MAY HAVE
SUGGESTED, WELL, THAT IS A
COMMON LAW PRIVILEGE AND IT
APPLIES TO COMMON LAW CAUSE OF
ACTIONS, DOESN'T APPLY TO
STATUTE.
>> IF THE STATUTE INTENDS TO
COVER OR NOT TO INCORPORATE
THE --
>> THAT'S MY QUESTION.
ARE YOU ARGUING FOR A BROAD
LIMITATION ON THE PRIVILEGE THAT
SAYS IT JUST APPLIES TO COMMON
LAW ACTIONS OR ARE YOU ARGUING
AS TO STATUTORY CAUSES OF
ACTION, IT DEPENDS ON THE
WORDING OF THE STATUTE?
>> YES, THE LATTER.
>> BUT THE PROBLEM THERE IS,
ADDRESS THE STATEMENT THAT THE
FIRST DISTRICT USED WHICH IS
FURTHERMORE, AS A SEPARATION OF
POWERS MATTER, A JUDICIALLY
CREATED POLICY SUCH AS THE
JUDICIAL IMMUNITY RIEWM MUST NOT
BE USED TO LIMIT THE APPLICATION
OF A LEGISLATE I HAVELY CAUSE OF
ACTION.
>> NO, IT SAYS IN THIS STATUTE.
>> NO IT DOESN'T.
NOT THE PHRASE SHE READ, IT DOES
NOT SAY THAT.
>> THE COURT'S HOLDING IS THAT
IT SAYS THIS STATUTE.
>> YOUR POSITION IS NOT THAT
IT'S A STATUTORY CAUSE OF ACTION
PER SE, JUDICIAL IMMUNITY,
LITIGATION PRIVILEGE DOESN'T
APPLY AND IF IT'S COMMON LAW,
CAUSE OF ACTION --
>> THERE ARE STATUTES THAT YOU
WOULD INTERPRET TO NOT HAVE
REPEALED OR NOT HAVE FAILED TO
INCORPORATE THIS POSITION.
I THINK IF WE LOOK TO THE COMPO
TECH CASE, THE OPINION BY
JUSTICE QUINN IS EXACTLY DEALING
WITH THE SITUATION.
YOU HAVE A STATUTE THERE DEALING
WITH ANY PERSON FOR ANY
VIOLATION HAND THE COURT HELD,
THIS COURT UNANIMOUSLY HELD THAT
A JUDICIALLY CREATED ECONOMIC
LOSS RULE WOULD NOT LIMIT A
STATUTORY ACTION FOR BUILDING
CODE VIOLATION AND YOU HELD THAT
THE COURT APPROVED SEVERAL
D.C.A.'S OPINIONS TO THE SAME
EFFECT DEALING WITH OTHER
STATUTES, INCLUDING THE STATUTE
HERE, AND WHEN JUSTICE QUINCE
WROTE THAT IF THE COURTS LIMIT
OR ABROGATE SUCH LEGISLATIVE
ENACTMENTS THROUGH JUDICIAL
POLICIES, SEPARATION OF POWERS
ISSUES ARE CREATED AND THE
TENSION MUST BE RESOLVED IN
FAVOR OF THE LEGISLATURE'S RIGHT
TO ACT.
>> I WAS, IN MY ZEAL TO READ
THAT SENTENCE, I CUT JUSTICE
CANTERO OFF FROM HIS QUESTION.
>> NO, YOU WERE ANSWERING MY
QUESTION AS TO WHETHER YOU
THOUGHT IT APPLIED TO ALL CAUSES
OF ACTION --
>> THE DECISION BELOW HERE
ADOPTED THE SAME REASONING AS
COMPU TECH, THE FIRST DISTRICT
COURT DECISION.
>> THAT WAS AN ECONOMIC LOSS
RULE CASE.
IT'S A COMPLETELY DIFFERENT
ANIMAL WHEN WE'RE TRYING TO
INTERPRET LEGISLATIVE INTENT.
>> IT IS ANALOGOUS, BECAUSE YOU
HAVE A JUDICIALLY CREATED RULE,
AND WHAT COMPU TECH HELD, USING
THE SAME LOGIC THAT THE COURT
BELOW HERE HELD, WAS THE JEW
DCIALLY CREATED RULE IS NOT PART
OF THE STATUTE.
THAT THE STATUTE OVERRIDES THE
ECONOMIC LOSS RULE.
IN OTHER WORDS, YOU'RES SPOAD TO
BE ABLE TO -- SUPPOSED TO BE
ABLE TO RECOVER DAMAGES UNDER
THE STATUTE.
EVEN THOUGH IT WOULD VIOLATE
ECONOMIC LOSS.
>> LET ME TAKE YOU BACK TO YOUR
STATEMENT ABOUT THE U.S. SUPREME
COURT'S RULING.
WHICH CASE ARE YOU REFERRING TO?
>> THE JAY!!!!!!!! JACOBS HENS CASE.
>> THE COURT CAME DOWN ON THE
SHIED OF FINDING THAT THERE WAS,
UNDER THIS -- UNDER THE CONSUMER
STATUTE, THE -- NO IMPLIED
LITIGATION IMMUNITY.
>> YES, SIR.
THAT IS RIGHT.
>> BUT DID THEY DO THAT UNDER
FEDERAL LAW OR DID THEY DO
THAT -- AN ONE, DOES ERIE LAW
APPLY TO THE LITIGATION
IMMUNITY, OR DOES IT NOT?
>> WE'RE DEALING WITH THE
FEDERAL ACT, BUT THE FEDERAL
ACT --
>> I UNDERSTAND THAT, BUT THE 1199!!
11th CIRCUIT WAS DEALING WITH
THE FEDERAL ACT IN JACKSON AND
THEY APPLIED ERIE.
>> I DON'T BELIEVE THEY APPLIED
IT IN THIS CIRCUMSTANCE.
>> THEY DID UNDER THAT STATUTE,
UNDER THE CIVIL RIGHT.
>> NO, THE CIVIL RIGHTS ACT,
THAT HAS -- THAT IS A -- THE
PRIVILEGES THERE ARE DIFFERENT.
THIS STATUTE, THIS PARTICULAR
STATUTE IS DESIGNED TO PROTECT
DEBTORS.
THIS STATUTE WOULD HAVE NO
MEANING FOR US TO GET AROUND IT.
>> SO IS YOUR ARGUMENT THAT IT'S
A PREEMPTATION?
>> MY ARGUMENT IS THE FEDERAL
STATUTE, THE FEDERAL DEBT
COLLECTION ACT, WHICH BY THE WAY
OUR STATUTE SAYS SHOULD CONTROL
IF IT IS MORE PRO!!!!!!!! PROTECTIVE, OUR
STATUTE EVEN SAYS THAT, TRYING
TO BE SURE THAT CONSUMERS ARE
PROTECTED.
MY POSITION IS IT CERTAINLY
SHOULD BE INTERPRETED SIMILARLY,
AND THE ACT -- IN FACT, OUR ACT
IS BROADER THAN THE FEDERAL ACT.
IT IS CLEAR, ANY PERSON IS
COVERED.
IT IS INTENDED --
>> WHAT I'M TRYING TO GET TO, IS
ARE -- IS THIS COURT BOUND TO
APPLY THAT UNITED STATES SUPREME
COURT DESIGNIFICANT?
>> YOU'RE NOT BOUND TO APPLY IT
IN THIS PARTICULAR CASE BUT THE
POINT IS WHAT WOULD BE THE POINT
FOLLOWING IN THE -- WHEN THIS
STATUTE SAYS WE LOOK TO THE
FEDERAL.
IT WOULD MAKE NO SENSE TO HAVE
INCOMPATIBLE STATUTES.
YOU'D SIMPLY BE DRIVING PEOPLE
TO FEDERAL COURT FOR DEBTORS TO
GET THE PROTECTION THAT THE
STATE INTENDED TO AFFORD AND THE
LEGISLATIVE HISTORY SHOWS IT WAS
AFFORDING.
LET ME TURN TO THE OTHER
QUESTION ABOUT THE ISSUE OF IS
THIS HEN POTENTIALLY COVERED,
BECAUSE I WANT TO SPEND A FEW
MINUTES ON THAT.
AS I WAS SAYING, I BELIEVE THIS
CASE RELATES TO THE MORTGAGE,
NOT TO THE LITIGATION.
THE REIN STATEMENT LETTER --
REINSTATEMENT LETTER IS A RIGHT
GRIRCH BY THE MORTGAGE AND --
GIVEN BIT MORTGAGE AND IT IS
IRRELEVANT TO THE LITIGATION.
IT COULD HAPPEN BEFORE, DURING,
OR AFTER THE LITIGATION.
IT CAN -- IN FACT, YOU CAN
REINSTATE ANY TIME UP TO FIVE
DAYS BEFORE JUDGMENT.
IT WILL -- IT RISES AND SPRINGS
FROM THE MORTGAGE.
IT IS NOT NECESSARY.
MANY DEBTORS DON'T EVER REQUEST
REINSTATEMENT, BUT REINSTATEMENT
IS SIMILAR TO A PAYOFF REQUEST.
IF, FOR EXAMPLE, IF WE HAD
SOLD -- IF WE'RE IN LITIGATION,
IF I'M IN LITIGATION AS A
DEBTOR, A CONSUMER DEBTOR, NOT
AN INVESTMENT DEBTOR, BUT IF I'M
IN LITIGATION AND I WANT TO PAY
OFF MY MORTGAGE BECAUSE I'M
GOING TO SELL MY HOUSE AND I
REQUEST AND CALL UP THE BANK AND
SAY WHAT IS THE PAYOFF AMOUNT
AND THE BANK SAYS, WELL THIS IS
IN LITIGATION, YOU HAVE TO GET
THE ATTORNEY, AND THE ATTORNEY
STACKS UP CHARGES AGAINST ME,
AND I PAYOFF AN ILLEGAL CHARGE
IN THAT CLOSING, THAT HAS
NOTHING TO DO WITH THIS
LITIGATION.
>> WELL, IS IT YOUR POSITION
THAT THE CUTOFF SHOULD BE THE
FILING OF THE COMPLAINT?
>> NO, SIR.
THERE IS NO CUTOFF.
THE CUTOFF IS -- FIRST OF ALL,
THERE'S NO CUTOFF UNDER THE
STATUTE, BUT IF THERE WERE, IF
WE HAD A LITIGATION PRIVILEGE,
IT WOULDN'T APPLY TO A
REINSTATEMENT LETTER, WHICH DOES
NOT RELATE TO THE LIT!!!!!!!! LITIGATION.
IT DOES NOT RELATE TO THE
LITIGATION, NOR DOES IT ADVANCE
THE PROSECUTION OF THE CASE,
BOTH OF WHICH ARE THE FOUNDATION
OF THE PRIVILEGE.
>> BUT UNDER JUSTICE WELLS'
QUESTION, ONCE THERE'S A
COMPLAINT FILED, THEN A
REINSTATEMENT LETTER CERTAINLY
WOULD RELATE TO THAT LITIGATION.
>> I DISAGREE.
HAS NO RELATION TO THELET GAGES.
IT MAY STOP THE LITIGATION, IT
MAY MOOT THE ALL RIGHT!!!!!!!!!!!!!!!!!!!! LITIGATION, BUT
THAT'S NOT A CONSEQUENCE OF THE
LETTER, JUST AS A MAYOFF OF THAT
LOAN IN A CLOSING BY SEPARATE
SALE WOULD MOVE THE LITIGATION,
BUT IT HAS NOTHING TO DO WITH
ADVANCING THE LITIGATION AND IT
DOESN'T ARISE FROM THE
LITIGATION.
>> LET'S GO BACK IF YOU COULD,
YOU'RE NOT SAYING --
>> I'M GETTING EXCITING.
>>
>> IT'S A VERY EXCITING CASE.
>> I'M TRYING TO MAKE IT UP FOR
YOU.
>> YOU'RE NOT SAYING THAT IN THE
COURSE OF THIS LITIGATION, IF
YOU, STEVEN TURNER, IN A
DEPOSITION, STARTS TO SAY
SOMETHING ABOUT ANOTHER ATTORNEY
OR WHATEVER, IN THE COURSE OF
LITIGATION OR BEFORE A JUDGE,
THAT BECAUSE OF OF THE STATUTORY
CAUSE OF ACTION THAT SOMEHOW
EVERYTHING THEN IS OUTSIDE THE
LITIGATION PRIVILEGE?
>> I'M NOT TRYING TO SAY THAT.
WHAT I'M TRYING TO SAY IS THIS
STATUTE, IN THIS CASE, IF YOU
MISREPRESENT THE DEBT IN
LITIGATION, YOU WOULD BE SUBJECT
TO THIS STATUTE.
BECAUSE THE DEBTORS HAVE NO
PROTECTION.
THEY DON'T --
>> WHAT IF THERE'S ANSWERS TO
INTERROGATORIES, ARE YOU SAYING
THAT ANSWERS TO INTERROGATORIES
ALSO, IF THEY HE COULD BE THE
BASIS --
>> YES, MA'AM, UNDER THIS
STATUTE.
>> I GUESS THE QUESTION I HAVE
FOR YOU IS YOU DON'T NEED TO GO
THAT BROAD AND WE DON'T NEED TO
GO THAT BROAD IN THIS CASE.
>> EXACTLY.
THAT IS EXACTLY RIGHT.
>> BECAUSE NOW -- WOULD YOU TAKE
THE POSITION THAT A DEMAND
LETTER IN A PERSONAL INJURY CASE
BEFORE THE LAWSUIT WAS FILED IS
SUBJECT TO THE JUDICIAL IMMUNITY
LITIGATION PRIVILEGE OR NOT?
>> IF IT -- IN OTHER WORDS, NOT
CONSIDERING THIS STATUTE, JUST
THE GENERAL QUESTION.
>> I'M TRYING TO UNDERSTAND
WHERE THE STATUTE FITS IN AND
ALSO THE PARAMETERS OF THE
PRIVILEGE.
>> I DON'T KNOW WHETHER THE
DEMAND LETTER, I DON'T KNOW IF
YOU'RE TALKING ABOUT TO AN
INSURANCE COMPANY TYPE THING.
I MEAN, I DON'T GET THE ANALOGY
HERE.
THIS REINSTATEMENT LETTER --
>> TRYING TO SETTLE A DISPUTE,
THAT'S THE ANALOGY.
>> I DON'T THINK -- I DON'T
BELIEVE THEE RELATED --
>> I THINK WHAT YOU'RE SAYING
HERE, THIS IS A UNIQUE CONTEXT
IN WHICH THE LEGISLATURE
ATTEMPTED TO ADDRESS ABUSIVE
COLLECTION PRACTICES, DEBT
COLLECTION PRACTICES, SO THEY
PUT PARAMETERS UPON WHAT
ACTIVITY DEBTORS -- OR EXCUSE
ME, PREDATORS AND THEIR
COLLECTORS CAN USE TO TRY TO
ENFORCE THE DEBT OR COLLECT THE
DEBT.
>> WITH JUST CAUSE AND WITH JUST
REASON, DEBTORS ARE NOT LIKE
CORPORATE -- I MEAN, IF THIS WAS
OUR FIGHT, YOU CAN PROTECT
YOURSELF, BUT IT'S A BIG DEAL
FOR A HOMEOWNER, AND HAS NOT
BEEN ABLE TO FIGHT LITIGATION.
>> MR. TURNER, LET ME ASK THIS
QUESTION.
WE HAVE EVEN -- WE HAVE EVEN
DISCIPLINED A LAWYER FOR
ASSERTING THE PROTECTIONS OF A
STATUTE ON A DEBT COLLECTION,
STATUTORY PROVISION, WHEN HE
ATTEMPTED TO HEY CERTIFICATE
THOSE IN LIT -- ASSERT THOSE IN
LITIGATION, SO YOU SEEM TO BE
SAYING THAT IF YOU HAVE
STATUTORY RIGHTS AND PROTECTED
RIGHT IN THE DEBT COLLECTION
CONTEXT, THAT YOU CAN ASSERT
THOSE WITHIN THE LITIGATION,
BECAUSE EVEN THE REPET!!!!!!!!!!!! REPETITIVE
DEPOSITIONS FOR EXAMPLE, VIOLATE
THE STATUTE TECHNICALLY.
>> I'M NOT SURE OF THAT.
>> YOU SEEM TO BE ARGUING THOUGH
FOR A VERY BROAD PRINCIPLE.
>> I'M FOCUSING ON WHAT THE DENT
COLLECTOR HERE DID AND I KNOW
THIS IS A VIOLATION OF THE
STATUTE.
WHEN YOU HAVE A DEBT AN YOU
INFLATE THAT DEBT OR YOU
MISSTATE THAT DEBT AN YOU KNOW
THAT THAT'S WRONG, AND THAT IS A
VIOLATION, AND THE WHOLE POINT
IS, -- OF THE STATUTE AND THE
WHOLE POINT HERE IS TO PROTECT
PEOPLE, TO NOT MAKE THEM HAVE TO
LITIGATION.
>> THE ACT HAS OTHER PRO VTIONS,
CORRECT?
IT HAS OTHER PROTECTIONS AS
WELL.
>> IT DOES.
>> SO WHY DOES THIS ONE SEPARATE
OUT TO BE FREETED DIFFERENTLY
THAN -- TREATED DIFFERENTLY THAN
OTHER PROTECTIONS THAT MAY BE
WITHIN THE STATUTE?
>> I GUESS I DON'T KNOW WHAT
PROTECTION WE'RE TALKING ABOUT.
>> IT HAS CERTAIN THINGS WITH
REGARD TO CONTACT WITH THE
DEBTOR, THOSE KINDS OF THINGS.
DOES IT HAVE THAT KIND OF
PROTECTION?
>> IT PROBABLY DOES, I'M NOT AN
EXPERT ON THAT.
>> AND WE HAVE SANCTIONED, WE
HAVE DISCIPLINED A LAWYER FOR
ASSERTING THOSE PROTECTIONS,
SAYING IT'S FRIVOLOUS, TO ASSERT
THOSE IN LITIGATION.
NOW YOU'RE STANDING HERE BEFORE
US SAYING YES IT APPLIES, NOT
ONLY TO THE PRELITIGATION, BUT
APPLIES DURING THE LITIGATION,
TO INTERROGATORIES AND OTHER
THINGS.
I'M TROUBLED WITH THAT.
>> YOUR HONOR THE SUPREME COURT
OF THE YOU NATES IN A UNANIMOUS
OPINION HELD THE FEDERAL ACT
WHICH ACCOMPLISHES THE SAME
WORDING, NOT QUITE AS BROAD BY
THE WAY, IT WAS APPLIED, SO IT'S
NOT MR. TURNER HERE SAYING THAT.
IT'S THE NINE JUSTICES OF THE
UNITED STATES SUPREME COURT
SAYING THERE'S NOTHING WRONG IN
THAT PARTICULAR CASE, IT WAS A
SETTLEMENT LETTER, DURING THE
LITIGATION.
YOU'RE NOT SUPPOSED TO MISLEAD
DEBTORS, PERIOD.
NOW, IF YOU DO IT BY GOOD FAITH
ERROR, THAT'S FINE, THAT'S A
DEFENSE UNDER THE STATUTE.
THERE'S NO ISSUE HERE OF GOOD
FAITH ERROR.
>> LET ME GET BACK TO WHERE I
WAS CONCERNED.
WITH THE FIRST DISTRICT OPINION.
I'M CONCERNED THAT SOMEONE
READING THIS OPINION IS GOING TO
THINK THAT PRESUIT LETTERS,
DEMAND LETTERS, ARE COVERED BY
THE LITIGATION PRIVILEGE WHEN I
DON'T SEE ANY CASE THAT HAS HELD
THAT, AND SO WE'VE CREATED THIS
DISTINCTION.
YOU WANT US TO TALK ABOUT THE
STATUTORY CAUSE OF ACTION.
BUT I'M GOING BACK AND SAYING
THAT I DON'T SEE ANYTHING IN THE
POLICY OF THE LITIGATION
PRIVILEGE OR JUDICIAL IMMUNITY,
WHATEVER YOU CALL IT, THAT WOULD
PROTECT LETTERS WRITTEN BEFORE
LITIGATION BEGINS.
NOW THAT MAY NOT HELP YOU IN
ANOTHER CASE, BUT THAT IS CLEAN
HAND THAT HELPS YOU FOR THIS
CASE, BECAUSE IT DOESN'T
DISTINGUISH THEN IF ULTIMATELY
THE MORTGAGE IS FORECLOSED OR
NOT.
IT'S THAT THAT IS NOT PROTECTED
UNDER ANY -- FOR ANY POLICY
REASON, LAWYERS ARE NOT
PROTECTED IN THOSE INDICATIONS.
>> I'M FOCUSING ON THIS STATUTE
AND THIS LETTER, AND THIS LETTER
IS A REINSTATEMENT LETTER AND AS
I SAID, IT DOES NOT RELATE, IT
DOES NOT ARISE OUT OF A
LITIGATION, IT IS A RIGHT GIVEN
BY THE MORTGAGE TO ANY DEBTOR,
JUST AS A PAYOFF RIGHT WOULD BE.
SO I KNOW I SHOULD BE PROTECTED
AND NOT HAVING A KNOWING CHARGE
MISREPRESENTED AGAINST ME.
>> WE'VE THROWN AROUND THE TERM
HERE DEBT COLLECTING AND I
BELIEVE THAT CASE, THE HEINZ
CASE FROM THE UNITED STATES
SUPREME COURT MAY HAVE USED THAT
CASE TOO BUT MR. BERANEK SEEMS
TO SAY THIS WAS NOT A PART OF
ANY DEBT COLLECTION.
THESE ATTORNEYS WERE HIRED TO
FORECLOSE ON MORTGAGES, AND
THEREFORE IT'S DIFFERENT FROM
BEING IN A DEBT COLLECTING
SITUATION.
>> THE DEBT COLLECTORS IS A TERM
UNDER THE FEDERAL ACT AND THAT'S
WHY THAT TERM IS USED.
WE HAVE THE TERM ANY PERSON IN
HOUR STATUTE.
IN FACT, THE STATUTE CLEARLY
SHOWS IT'S APPLICABLE TO
LAWYERS, BECAUSE LAWYERS ARE NOT
UNDER HOUR STATUTE, DEBT
COLLECTORS THAT HAVE TO GET LIE
ACCEPTED, BUT ANY PERSON IS
SUBJECT TO VIOLATION THIS TACK
AND IT'S CLEAR THAT LAWYERS ARE
NOT EXEMPT FROM THE DEFINITION
OF ANY PERSON.
SO IT'S NOT JUST A SITUATION,
AND BY THE WAVE, WE DON'T HAVE
HERE, AN ACTION, A CHARGE WITH A
LAWYER REPRESENTING HIS CLIENT.
WHAT WE HAVE IS A LAWYER MAKING
A STATEMENT ABOUT THE DEBT TO
EVER ADVISE HIS OWN PERSON.
THE DEBTOR CANNOT -- IS NOT
ENOUGH, THAT YOU DISCIPLINE HIM.
THAT YOU CALL HIM OF BEFORE THE
BOARD.
THIS PARTICULAR DEBTOR IF YOU
LOOK IN YOUR ANNALS WAS
REPRIMANDED BY THE BOARD.
THAT'S NOT ENOUGH.
WHEN THE STATUTE SAYS YOU HAVE A
PENALTY, A STATUTORY PENALTY SET
BY LAW WHEN YOU MAKE THESE
MISREPRESENTATIONS, THE WHOLE
POINT OF THIS IS TO DISCOURAGE
PEOPLE FROM TELLING DEBTORS WHAT
THE DEBT IS, KEEPING THEM FROM
MAKING PAYOFFS THAT THEY SHOULD
BE ABLE TO PAY OFOFF OR WHEN
THEY DO PAY OFF, HAVING TO GO
BACK AND FIGURE OUT WHAT IT IS
AND HIRE LAWYERS THAT THEY CAN'T
AFFORD.
THAT'S THE WHOLE PURPOSE OF THIS
STATUTE.
MAKE THESE PEOPLE WHO MAKE --
DEAL WITH THESE PEOPLE, DEAL
WITH DEBTORS --
>> I COULD AGREE WITH YOU ON
THAT PRESUIT, BUT I'M HAVING A
REAL STRUGGLE WITH HOW WE,
WITHOUT RECEIPTING FROM --
RECEDE FRG WHAT THIS COURT SAID,
IN THE 11 CASE, THAT WHERE WE
SAID ANY ACT DURING THE COURSE
OF LITIGATION, WE DIDN'T SAY ANY
ACT DURING THE COURSE OF A
PARTICULAR TYPE OF LITIGATION.
WE SAID ANY ACT DURING THE
COURSE OF LIT GAGE.
AND -- LITIGATION AND IF WE
DON'T ADHERE, MY CONCERN IS THE
CHILLING EFFECT THAT IT HAS ON
THE -- WHAT IS DONE DURING THE
COURSE OF TRYING A LAWSUIT.
>> WELL, CERTAIN, CAN I ANSWER
YOUR QUESTION FRANKLY?
YOU'RE NOT THE LEGISLATURE AND
YOU CAN CREATE A JEW DCIAL
PRIVILEGE FOR COMMON LAW,
BECAUSE THAT'S UNDER YOUR
CONTROL, BUT CASE AFTER CASE
AFTER CASE HAS SAID, INCLUDING
THE UNITED STATES SUPREME COURT
AND THIS BODY, DEALING WITH
JUDICIALLY CREATED RULES --
>> BUT THE LEGISLATURE HAS NOT
COME ALONG AND SAID THAT THE 11
CASE IS NOT THE LAW OF FLORIDA.
>> BUT THEY HAVE PASSED A
STATUTE AND THE STATUTE
OVERRIDES COMMON LAW PRIVILEGES
UNLESS FOR SOME REASON --
>> MR. TURNER, NOW YOU SEEM TO
BE ARGUING FOR A MUCH BROADER
APPLICATION THAN AT THE
BEGINNING.
AT THE BEGINNING YOU SAID IT'S
JUST THIS STATUTE AND NOW YOU'RE
SAYING WHENEVER IT'S A STATUTORY
CAUSE OF ACTION THE LITIGATION
PRIVILEGE DOESN'T APPLY.
>> I APOLOGIZE IF I GAVE YOU
THAT IMPRESSION.
>> IT'S ALWAYS THE LEGISLATURE.
IF IT'S A STATUTORY CAUSE OF
ACTION, WE'RE NOT THE
LEGISLATURE, THE LEGISLATURE
DEVELOPED IT.
>> BUT SIR, YOU HAVE TO
INTERPRET THE STATUTE TO SEE IF
THE LEGISLATURE WAS TRYING TO BE
BROAD ENOUGH TO INCLUDE LAWYERS
AND TO INCLUDE THIS SITUATION
AND THIS CLEAR IS ONE OF THOSE
INSTANCES WHERE THEY ARE.
>> MR. TURNER, WITH OUR
ASSISTANCE, YOU HAVE EXTENDED
WAY BEYOND YOUR TIME.
>> I'M SORRY.
I RECEIVE THE RED LIGHT SHOWS
I'M OVER.
>> IF YOU WANT TO BRING YOUR
ARGUMENT TO A CONCLUSION, PLEASE
DO SO.
>> YOU POINTED OUT THAT WE DON'T
HAVE TO REACH THE QUESTION HERE
BECAUSE WE'RE DEALING WITH A
REINSTATEMENT LETTER HE, A
PAYOFF TYPE SITUATION, DOES NOT
RELATE TO LITIGATION, IT DOES
NOT ADVANCE THE LITIGATION, BUT
EVEN IF YOU DO, YOU HAVE A
STATUTE THAT CLEARLY INTENDS TO
ENCOMPASS ANY MISREPRESENTATION.
>> THANK YOU.
MR. BERANEK.
>> I HAVE --
>> YOU HAVE FOUR MINUTES, A
LITTLE BIT MORE.
>> THE QUESTION, THE LAWYERS
REALLY HAVE A SPECIAL
PROTECTION.
NO, THEY DON'T.
THE JUDICIAL IMMUNITY DOCTRINE
WHICH CAME STARTED IN THE 1500'S
IN ENGLISH COMMON LAW, AND WAS
ADOPTED BY THE STATE OF FLORIDA
AS STATUTE, WE ADOPTED THE
COMMON LAW, ALL THAT COMMON LAW,
SO IT'S REALLY A STATUTE HERE.
IT PROTECTS, IT GIVES A
PRIVILEGE, OR AN IMMUNITY TO
JUDGES, LAWYERS, LITIGANTS AND
WITNESSES.
IF THIS CASE STANDS, THEN THE
JUDGE IN THIS CASE -- I MEAN,
THE CIRCUIT JUDGE IN THIS CASE
HAS NO IMMUNITY.
>> WELL, WE RECEDED FROM ANGE
WHICH SAID THE PRIVILEGE
INCLUDES STATEMENTS NECESSARILY
PRELIMINARY TO LITIGATION, AND
APPARENTLY IN THE CASE, WE WENT
TO MORE OF A CASE BY CASE
APPROACH.
BEFORE LITIGATION COMMENCES,
THERE IS NO JUDGE.
SO UNDER WHAT CIRCUMSTANCES
SHOULD A PRIVILEGE APPLY TO
PRELITIGATION STATEMENTS, IF
ANY?
>> WELL, I WANT TO ADDRESS THE
CASE, BUT HERE WE'RE TALKING
ABOUT THE JUDGE IN THE
UNDERLYING LITIGATION.
IN OTHER WORDS, THAT'S WHO IS
PROTECTED BY THIS PRIVILEGE.
THAT WOULD BE BUBBA SMITH, THE
JUDGE IN THE UNDERLYING HIT
GAGES.
-- LITIGATION.
NOT THE JUDGES OUT OF THE FIRST
DISTRICT.
>> I'M TALKING ABOUT WAY BEFORE
JUDGE SMITH BECAME INVOLVED.
WHEN THE LETTER WAS WRITTEN,
THERE WAS NO JUDGE INVOLVED.
>> NO, OF COURSE NOT.
OF COURSE NOT.
>> AND THAT'S WHY I'M HAVING
PROBLEMS SEEING HOW THE JUDGE
SMITH DECIDED THAT IF THE END
RESULT WASN'T A MORTGAGE
FORECLOSURE, I MEAN, IT JUST
SEEMS TO ME THAT HE MADE IT --
THAT DISTINCTION IS NOT A
MEANINGFUL DISCONTINUING FOR THE
APPLICATION OF THE LITIGATION
PRIVILEGE, JUDICIAL IMMUNITY
RULE.
YOU AGREE WITH THAT.
>> JUSTICE PARIENTE, I AGREE
WITH THAT.
IN OTHER WORDS, I THINK JUDGE
SMITH WAS WRONG ON THAT, BUT HE
MADE THAT RULING IN THE SUMMARY
JUDGMENT AND I HAVEN'T BEEN ABLE
TO HEY PEEL THE SUMMARY JUDGMENT
YET.
I FILED CERTIORARI ON IT, THE
JUDGE SAID NO, WE DON'T HAVE
JURISDICTION, WE WON'T HEAR IT.
I WOULD LOVE TO BE ABLE TO MAKE
THOSE HARING IEWMENTS TO YOU.
>> I THOUGHT HE MADE IT IN THE
ORDER CERTIFYING THE CLASS.
>> HE PULLED THAT RULING INTO
HIS CLASS CERTIFICATION ORDER,
YES, HE DID.
>> SO YOU COULD APPEAL THAT
DETERMINATION ON HEY PEEL FROM
THE CHAS CERTIFICATION.
>> I TRIED.
THE FIRST CHOSE NOT TO HEAR IT
AND WOULDN'T LET ME.
IN ANY EVENT, YOU HAD A NUMBER
OF QUESTIONS.
SOMEONE ASKED ARE WE BOPPED BY
ERIE HERE, AND THEY MOST
CERTAINLY ARE.
JACKSON V. BELL SOUTH ABSOLUTELY
SAYS YES WE'RE BOUND BY ERIE AND
WE HAVE TO APPLY FLORIDA LAW ON
THIS SUBJECT.
CASE LAW IN PRESUIT LETTERS,
THAT'S MENTIONED IN BOCCA
INVESTORS, WHICH IS THE CONFLICT
CASE, AND YOU HAVE TO GET
DOWN -- THEY DIDN'T PUT IT IN
THE MAJORITY OPINION, BUTS IT
MOST CERTAINLY IN THIS
CONCURRING OPINIONS, WHICH SAYS
THAT -- AND THIS IS THE TAILEND
OF THE CONCURRING OPINION, THE
PRESUIT COMMUNICATION WERE
COMMUNITY CATIONS BETWEEN THE
PLAINTIFF CONDOMINIUM OWNERS,
POTENTIAL PLAINTIFFS, AND
COUNSEL.
I CONCUR WITH THE MAJORITY
OPINION THAT THOSE
COMMUNICATIONS ARE PROTECTED BY
THE LITIGATION --LY!!!! BY THE 11
LITIGATION PRIVILEGE.
THAT'S AT THE VIV BOTTOM OF THE
CONCURRING OPINION IN POT ASH.
>> THAT'S ANOTHER CONFLICT ISSUE
WITH BOTH HOW BROAD IT IS.
>> YES.
>> WELL BEING THAT'S NOT A
CONFLICT ISSUE BECAUSE THAT WAS
JUST IN THE CONCURRING OPINION,
CORRECT?
>> THAT WAS NOT THE CONFLICT
ISSUE THAT I ASSERTED, THAT'S
TRUE, BUT IN THE OPINION OF --
>> IT MAY BE AN ISSUE WE NEED TO
DEAL WITH.
>> THAT'S WHAT I MEANT.
IT SOUNDS LIKE THE COURTS ARE
SOMEWHAT CONFUSED ON THE
PARAMETERS HERE.
>> AND IF -- SO THERE IS AT
LEAST A TINY BIT OF LAW ON
PRESUIT COMMUNICATION AND THERE
IS ALSO THE BARTON CASE, TALKING
ABOUT PRELIMINARY MATTERS AND IF
IT'S PRELIMINARY, THAT MEANS
IT'S BEFORE YOU FILE THE COMAINT
AND THIS -- THIS -- THERE WOULD
HAVE NEVER BEEN THIS LETTER IF
THE MORTGAGOR HADN'T DEMANDED
IT, AND WHAT THEY DO IS THEY --
IF THE MORTGAGOR DEMANDS A
REINSTATEMENT LETTER, THEY SEND
THEM A REINSTATEMENT LETTER AND
IF THEY THEN DON'T RESPOND TO
THE COMPLAINT, THE MORTGAGE
COMPLAINT, THEY TAKE A DEFAULT
AND TAKE THAT SAME LETTER, PUT
IT -- MAKE IT AN AFFIDAVIT AND
FILE IT.
>> MR. BERANEK WITH OUR HELP AND
ASSISTANCE, HUGH EXHAUSTED YOUR
TIME AS WELL SO WE THANK BOTH OF
YOU FOR ADDRESSING THIS PROBLEM
FOR US.
WE'LL TAKE THIS CASE UNDER
ADVISEMENT