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Archive for May, 2012

Where Wall Street and Politics Intertwine

Whenever I see anything that Wall Street wants, my knee-jerk reaction is to want the opposite.  And I’m not just talking about politics – I mean anything.  If Wall Street wants white, I want black.  If Wall Street wants up, I want down.  If Wall Street says never, I say always.  That may sound petty, but I’d bet many homeowners reading this feel the same way.  At this point, the corruption and evil that has emerged Wall Street is so well-documented that nobody even needs to explain/justify their dislike of Wall Street – we all know why.

With all of that said, I find this article thoroughly fascinating.  Apparently, Wall Street has withdrawn its support of President Obama and has begun flocking to Mitt Romney, giving him many millions in financial support.  This is fascinating stuff.

First off, if you don’t think Wall Street’s desires matter, think again.  We’ve all seen, over the last several years, that what Wall Street wants, Wall Street gets, be it the never-ending bailouts, the absence of meaningful financial regulations, or the lack of any prosecutions for the repeated misconduct.  Let’s put it this way … I had always thought Wall Street supported Obama – and, as the article reflects, Wall Street did support Obama over John McCain in 2008.  (Again, Wall Street got what it wanted.)  So when I saw that Wall Street was supporting Romney, that was the first time I thought Romney had a legitimate chance to win the 2012 election.  Before reading this article , I always thought Obama would emerge with tens of millions in the campaign trail and, much like Romney did to his Republican challengers, that Obama would out-spend Romney to victory.  Now?  That dynamic is, apparently, different than I thought.

Anyway … sticking with my theme of wanting the opposite of what Wall Street wants … if Wall Street wants Romney, then does that mean I want Obama?  More importantly, since my own views aren’t what matters here … if you’re a homeowner who is sick and tired of suffering through a crappy economy and no financial help, even as Wall Street gets bailed out time and time again, does Wall Street’s desire to have Romney as the next President mean you should do the opposite and support Obama?

I can’t help but think that many of my clients will so conclude.

Look … I don’t like Obama.  I think he’s had many chances to stand up to Wall Street and to help homeowners (and the economy as a whole), yet he’s failed to do so.  But when Wall Street is supporting Romney, it is absolutely impossible for me to like Romney, either.  Hence, at this point, I feel like I’m being forced to go into a time machine and get into a boxing match, and I have to choose whether to fight Mike Tyson in his prime or Muhammad Ali in his prime … no matter my choice, I’m going to emerge bloodied, battered, and defeated.

The point here isn’t what I think or what I want.  The point is that it is really fascinating to know that Wall Street supports Romney over Obama, even though it supported Obama over McCain in 2008.  No matter your political views, this is certainly something that homeowners will think about as we get closer to the 2012 nomination.

Here is the article …

Wall Street Ditches Obama, Backs Romney

Hell hath no fury like a woman scorned — but what about a Wall Street titan?

Deep-pocketed financiers have abandoned President Obama and are flocking to Mitt Romney in droves, providing more donations to his campaign than any other industry except retired workers. (And that’s not really an industry.)

Individuals who work in the securities and investment industry have given the Romney campaign $8.5 million through the end of April, according to data from the Center for Responsive Politics.  Over the same time period, Obama has brought in only $3 million from securities and investment workers, and the industry is only the campaign’s fifth largest source of funds.

“They have basically ditched Obama,” said John Dunbar, the managing editor for politics at the Center for Public Integrity. “Romney is just a much friendlier candidate if you are a banker.”

The absence of Wall Street love is a departure from the norm for the Obama campaign. In 2008, then-Senator Obama raised almost $16 million from Wall Street. John McCain, the Republican nominee, received donations totaling only $9 million.

The shift is evident even within specific firms. The employees of Goldman Sachs (GS, Fortune 500), who have traditionally given more money to Democratic candidates, have donated more to Romney’s campaign than any other firm.  Meanwhile, individuals associated with Goldman have given far less to Obama this cycle, even after he milked the bank for $1 million in 2008 — or four times McCain’s haul.

Goldman isn’t an isolated case. The top six spots on Romney’s donor list are all financial firms, with Bank of America (BAC, Fortune 500), JPMorgan Chase (JPM, Fortune 500), Morgan Stanley (MS, Fortune 500), Credit Suisse (CS) and Citigroup (C, Fortune 500) following Goldman.

Of the top 20 organizations and businesses with donors who contributed to the Obama campaign, not one is a bank or investment firm, according to Center for Responsive Politics data.

The dwindling donations underscore intense feelings of dissatisfaction that some on Wall Street feel toward the White House, both in terms of the rhetoric used and the policies pursued by the president.

“Wall Street has taken some of the blame for the financial crisis,” said Viveca Novak of the Center for Responsive Politics. “The result of that has been increased oversight and regulation — two things that are never popular.”

Early in his presidency, Obama chastised “fat cat” bankers who took large bonuses during the financial crisis. He then worked to pass a financial reform law that included restrictions on banks that some in the industry find onerous, especially the so-called Volcker Rule that would limit some types of trading activity.

After a period when it looked like the relationship between big business and the White House was on the mend, new fissures appeared as the president embraced the rhetoric of income inequality. Obama discussed the growing wealth gap in a series of high-profile speeches, including his most recent State of the Union address.

With the general election campaign now fully underway, Obama has been more specific in his attacks on Romney, and much emphasis has been put on the former governor’s career at Bain Capital.  The president’s words and the campaign’s advertisements have not cast private equity in a flattering light. Vice President Joe Biden said last week that a career in private equity “no more qualifies you to be president than being a plumber.”

Dunbar said the escalating rhetoric is a sign that the White House has “made a calculated decision” to “go to war” with Romney over Bain. “They’ve decided to burn the bridge and go after Wall Street. They have decided to rely on populism.”

The industry, by all accounts, is not enjoying its thrashing from the president.

On the same day that the Obama launched its campaign against Mitt Romney and Bain Capital, the president attended a fundraiser at the Manhattan home of Tony James, the president of private equity firm Blackstone (BX).

Fortune reported that the president didn’t specifically mention private equity, and the attendees, who had paid $35,800 per plate, didn’t ask.

Two power players who are even closer to the White House, ex-auto czar Steven Rattner and Newark Mayor Cory Booker, have come to the industry’s defense, complicating matters for the president.

Asked last week about his campaign’s attacks on Bain Capital, Obama walked a fine line, saying that there “are folks who do good work in that area” but “their priority is to maximize profits.”

“When you’re president, as opposed to the head of a private equity firm, then your job is not simply to maximize profits,” Obama said. “Your job is to figure out how everybody in the country has a fair shot.”

The breakdown of decorum between Wall Street and the White House sharply reduces the odds that Obama will be able to match Romney’s fundraising totals from industry players.  But given the substantial investments the White House has made in its so-called ground game, dwindling funds from Wall Street won’t necessarily leave the campaign cash-strapped. Many observers still expect Obama to raise a cool $1 billion by November.  Still, the attacks could push a wealthy donor to make a substantial contribution to a pro-Romney super PAC — groups that can accept and spend unlimited money.

One pro-Romney super PAC, Restore Our Future, has already raised more than $20 million from individuals and organizations associated with the securities and investment industry.  Obama’s super PAC, Priorities USA Action, has received only $218,500 from the same group.

Mark Stopa

www.stayinmyhome.com

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Lesson Learned

In July, 2011, I wrote a letter to Judge Martha Cook (which I posted on this blog) and was quoted in the Tampa Tribune expressing my concerns about her presiding as a judge in foreclosure cases.  My concerns were sincere and remain such.  In the ensuing months, however, I came to realize that the way in which I expressed these concerns was unfair and inappropriate, so I sent Judge Cook this letter of apology and am posting it here.

I view this as a lesson learned (and, hopefully, an opportunity for the public to see the right way to handle such matters).  If you have a concern about the impartiality of a judge, don’t make the mistake I did – Fla.R.Jud.Admin. 2.330 is the appropriate vehicle to address those concerns.

Mark Stopa

www.stayinmyhome.com

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Stripping a Second Mortgage in Chapter 7 – New, Cutting-Edge Bankruptcy Law

Most of my blogs discuss foreclosure issues, but make no mistake – bankruptcy is a huge part of helping homeowners facing foreclosure.  Though I didn’t start out as a bankruptcy lawyer, I’ve learned through my experience defending mortgage foreclosure cases in state court that bankruptcy is an important tool for a foreclosure defense lawyer to have in his/her arsenal.  To ilustrate, I just encountered a recent decision that can and will help Florida homeowners file bankruptcy and still keep their home. 

First, let’s be clear.  Bankruptcy is a common way for homeowners to walk away from their debts and move on with their lives.  Many homeowners file bankruptcy and walk away, and there’s nothing wrong with that.  However, it doesn’t have to be that way.  It’s entirely possible to file bankrtupcy and still keep your home.  Let’s repeat that:

It is possible to file Chapter 7 bankruptcy and still keep your home. 

To illustrate, take a look at the May 11, 2012, decision of the Eleventh Circuit Court of Appeals (the appellate court for all of Florida’s bankruptcy courts), which ruled that a homeowner can strip a second mortgage in a Chapter 7 bankruptcy.  You may not understand what that means, so let’s give an example.

Suppose your house is worth $200,000 but you owe $250,000 on a first mortgage and $100,000 on a second mortgage.  In other words, the amount you owe on your first mortgage is greater than the current value of your home.  Under now-existing law (at least in Florida, anyway), you can file a Chapter 7 bankruptcy, keep your home in that bankruptcy (not surrender it, but keep it), and eliminate that second mortgage.  Poof, the second mortgage is gone – just like all of your other debts once you get a discharge.  Of course, the first mortgage still remains, and you’re still responsible for paying that, i.e. the $250,000.  But the second mortgage, i.e. the $100,000, is eliminated.

There are, of course, some clear limitations on how this strategy can be used.

First, you have to qualify for Chapter 7.  If you’re making six figures per year or own a bunch of assets, this isn’t for you.

Second, though you don’t have to be current on payments on your first mortgage – you can be two months behind or even two years behind – you have to get current shortly after you file the bankruptcy.  If you just stopped paying your first mortgage a few months ago, this may not be too difficult – just cure your arrearages.  If you stopped paying many months or even years ago, that may be easier said than done.  After all, anyone who qualifies for Chapter 7 necessarily does not have a lot of money lying around, much less the tens of thousands of dollars it would take to cure all arrearages on a first mortgage that you haven’t paid in two years.  That said, there’s nothing stopping you from convincing a friend or family member to cure these arrearages for you so as to get current on the first mortgage, file Chapter 7, eliminate the second mortgage, and keep your home.  (To clarify, you don’t technically “have” to pay the arrearages, but if you don’t pay all the arrearages on your first mortgage, you’re at the mercy of the first mortgage company, as if it refuses to modify your loan then you can’t keep your home.  That’s why I emphasize paying the arrearages, as it’s the only way to ensure you can strip the second mortgage and keep your home.)

Third, the current value of the home must be less than the amount owed on your first mortgage.  To illustrate, suppose you owe $250,000 on a first mortgage and $100,000 on a second (the same as in my example, above), but instead of your house being worth $200,000, it’s worth $260,000.  In that scenario, the law does not allow you to “strip” the second mortgage, because a portion of that second mortage is secured by the property.  For this strategy to work, the amount owed on the first mortgage must exceed the current value of the home.  So long as that’s the case, whether it exceeds the value by $1.00, $300,000, or anything in between, the entire second mortgage gets eliminated through the Chapter 7.  Notably, the amount of the second mortgage is irrelevant – so long as the value of the home is less than the amount owed on the first mortgage, the entire second mortgage is eliminated.

As a practical matter, what does all of this mean?  In my view, it means that certain Florida homeowners should assess their situation carefully.  To try to simplify this, I suggest that once you answer “no” to any of the following questions, then this strategy does not apply for you, but if you answer “yes” to all of them, you should seriously look into this.  Here are the questions:

Are you adamant about keeping your home?

Do you have a second mortgage?

Are you eligible for Chapter 7 bankruptcy (largely a function of your yearly income and assets you own)?

Is the amount you owe on your first mortgage greater than the current value of the house?

Could you afford to make monthly mortgage payments on your first mortgage, as it presently exists, indefinitely into the future?

Can you cure existing the existing arrearages on your first mortgage, or find someone who can help you do so (failing which you’ll have to somehow convince the bank to enter a modification)?

If you answered “yes” to all of these questions, then this ruling may be a terrific way for you to keep your home while eliminating your second mortgage and your other debts through a Chapter 7 bankruptcy.

As always, call us for a consult.  888-450-1549.

Mark Stopa

www.stayinmyhome.com

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Thankful for Loan Modifications?

I’ve had many clients come into my office recently, having paid tens of thousands of dollars pursuant to loan modification agreements with banks.  This Memorial Day, I’m so thankful for the honest bankers who cared enough to work out agreements with these homeowners so as to avoid foreclosure, enabling these allow hard-working homeowners to make monthly mortgage payments and remain in their homes.  OH, WAIT.

These hard-working homeowners paid tens of thousands of dollars, diligently made all monthly mortgage payments, and did everything the banks asked them to do to stay in their homes and avoid foreclosures.  But the bankers weren’t honest and, and these loan modifications were nothing to be thankful for.  It was all a fraud.  A farce.  You see, these homeowners entered a loan modification agreement and made all of the monthly payments required thereunder, but they got sued for foreclosure anyway, often waiving all defenses to that foreclosure as part of the loan modification!

Please, please don’t make this mistake.  Please, please don’t fall into this trap.   Please, please, please read these articles:

Tempoary loan modifications are the ultimate scam!

Loan Modifications can CAUSE foreclosure!

Banks Offer Loan Modifications to Dupe Homeowners!

I’m not trying to say homeowners should never do a loan modification.  My point, simply, is this … banks know how desperate many homeowners are for a loan modification, and bankers prey on that desperation, resulting in agreements that are terribly one-sided and, yes, even fraudulent.  If you’re going to enter an agreement like this, you have to do so with both eyes open.

I could write pages and pages of terms that I think a loan modification should include.  I could give horror story after horror story of homeowners who made tens of thousands of dollars in payments yet got sued for foreclosure anyway.  Instead, I’ll put it like this … if you’re adamant about entering a mortgage modification, and you have a bank willing to do so, I’d make sure, at worst, of the following:

1.  The loan modification is in writing, signed by you and the bank.  A bankster telling you over the phone that you have a deal is about as trustworthy as an email from Nigeria telling you that you’ve won $10,000,000  and that you need to mail them a $10,000 check to claim your prize.

2.  The loan modification specifically says, in writing, that the bank will not sue you if you make the monthly payments, or, if a suit is already pending, that the suit will be dismissed (upon your entry into that agreement).  That might sound obvious, but what good is a loan modification – and what purpose does it serve to mke monthly payments – if the bank can still sue you for foreclosure anyway?

3.  The loan modification has some type of written representation from the bank that it is the owner/holder of the Note and Mortgage.  Incredibly, I often see loan modifications where the bank asks the homeowner to represent that it is the owner/holder of the Note and Mortgage.  This is bass ackwards.  The typical homeowner has no idea whatsoever which bank owns that Note/Mortgage – that’s something the bank should have to represent, to the homeowner, so the homeowner has some recourse if it turns out to be false.

4.  The mortgage modification is recorded in the Official Records of the county where the property is located.  If it’s not recorded (or not in a format that it can be recorded), chances are pretty good that it’s not real.

5.  The loan modification agreement does not require you to waive all defenses to foreclosure.  If I’ve seen this once, I’ve seen it 100 times.  A homeowner is desperate for a modification, so he/she will sign anything, even something that says all defenses to foreclosure are waived upon any default in the modified agreement.  This might be kosher for homeowners who know they won’t re-default, but few are in that boat.  Even if you really want a loan modification, do you really want to be in a position of not being able to defend a foreclosure because you’ve waived all defenses?

If we all stand up, and insist on these basic terms, then perhaps we can collectively force banks to enter loan modifications that aren’t so one-sided.

Mark Stopa

www.stayinmyhome.com

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My Suggestions on Possible A.O. in Hillsborough County

When my hearing before Judge Foster in Tampa ended today, he advised me and the handful of other attorneys in the courtroom that the Tampa judges were considering a new administrative order regarding scheduling issues in foreclosure cases.  Apparently, the judges have seen recent cases from Florida’s appellate courts requiring discovery be complete before summary judgment can be entered, and they’re considering an administrative order regarding the issue.

There were several plaintiffs’ attorneys present, but I was the only foreclosure defense lawyer (the only one who spoke, anyway).  That sounds bad, but it felt like Judge Foster wanted to hear my views, even going so far as to say I was a “leader” on these issues for homeowners, so that was humbling and, frankly, pretty cool.  Anyway, the conversation dovetailed into the plaintiffs’ lawyers trying to convince the judge that the court should implement the approach being used by one Tampa judge, i.e. setting cases for trial and summary judgment sua sponte.

Not surprisingly, I wound up disagreeing with the plaintiffs’ attorneys about this issue.  When I offered to submit a memo of law to the judge, and he invited everyone to share their thoughts with him directly, via email.  Here are my thoughts, ranging from case law to fears about a judge acting as a “second prosecutor” to the procedurally correct way to set a case for trial.

No matter how this unfolds, I commend the court for allowing both sides to give input on this issue as it evaluates how to proceed.  This is one thing I’ve always liked about how the Sixth Judicial Circuit has handled administrative issues in the foreclosure context, and it’s certainly a good sign that the Thirteenth Judicial Circuit is doing the same thing.

Mark Stopa

www.stayinmyhome.com

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Blame the Banks? Or the Government? Or Both?

It is thoroughly appalling to me how nobody – and I mean NOBODY – has blamed the U.S. government for the housing crisis, if not the entire Great Recession.  Sure, the banks are dirtbags, but we all know that.  Why is nobody placing appropriate blame on our government?

If you don’t know what I mean, take a look at this Final Judgment, where a homeowner prevailed over BB&T at trial.  Yes, the bank was sleazier than the skuz on the bottom of my shoes, declaring this homeowner in default when there was no default.  But take a close look at WHY the bank did so.  As the Final Judgment reflects, the bank was financially motivated to declare a default because it knew the government was going to pay the mortgage in the event of default.

As if that’s not disgusting enough, what makes it even worse was that BB&T did not even loan the money – a prior bank did.  Yet as a result of a deal with the FDIC, BB&T was in the position of pocketing millions of dollars from our government merely by declaring this homeowner in default.  This should piss off everybody in America – a bank that didn’t loan money wrongly declares a default so it can collect millions from our government. Where is the outrage?

These perverse financial incentives permeate foreclosure-world to a degree that is impossible for the typical person to fathom.  Personally, I’m convinced the government’s involvement (coupled, of course, with the lack of ethics on Wall Street) is the reason for the housing crisis.

If that doesn’t make sense, think about it like this.  Suppose you were a bank.  Suppose you could make a loan and either get paid monthly, with interest (if the homeowner paid) or get the entire mortgage paid in full by the government (if the homeowner stopped paying).  What would you do?  You’d loan as much money as possible, right?  You’d loan to every Tom, Dick, and Harry, regardless of his/her creditworthiness.  You’d loan more and more money on each loan because there’d be no downside – either the homeowner paid according to the terms of the loan, with interest, or, if the homeowner didn’t pay, the government would pay in full.

This is the dynamic that has existed over the past several years throughout our country.  Many, many mortgages are fully guaranteed by the U.S. government.  This is why home prices were inflated during the boom.  Banks jacked up appraised values because there was no downside – they wanted to loan more, knowing the loans were guaranteed by the U.S. government.  And this is why banks won’t settle cases now – why settle with homeowners when they can get a judgment and get paid in full by the government?

Don’t believe me?  Don’t take my word for it – read the findings of Judge Levens in this Final Judgment.

Mark Stopa

www.stayinmyhome.com

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Appeal of an Order Denying a Motion to Quash Service

Here is my Initial Brief in a foreclosure case where I’m appealing an Order denying my client’s Motion to Quash Service.  The fact-pattern was pretty straightforward, and so was the brief.  The Return of Service (the document the process server filed to establish service of process was effectuated) did not reflect that the process server informed my client of the contents of the Summons and Complaint, as required by Fla. Stat. 48.031(1)(a), and my client’s Verified Motion established that she was not so informed.  On these undisputed facts, I submit that service should have been quashed, and I think Florida’s First District Court of Appeal will agree.

This is not the first time I’ve posted a brief like this.  In the past, I’ve found that when I do so, I will get calls from prospective clients who want me to raise a similar issue in their case.  That’s great, and I’m happy to shed a spotlight on viable defenses available to homeowners in foreclosure cases.  That said, anyone in this situation needs to realize that the right to bring this sort of appeal is predicated on the homeowner’s compliance with some extremely technical rules of procedure, including: (i) you have to challenge service with the first paper filed in the foreclosure case; and (ii) you have to file a Notice of Appeal within 30 days of the Order denying that motion.

All too often, I find that homeowners could have asserted a defense or brought an appeal like I’ve done here, but they tried to handle the situation on their own and blew the procedural requirements.  If you’re a homeowner facing foreclosure, don’t make this mistake!  Don’t miss out on viable defenses because you tried to handle your lawsuit yourself!  After all, if you broke your arm, you wouldn’t try to perform surgery on yourself.

Mark Stopa

www.stayinmyhome.com

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Why I’m Worried About America

Am I the only one who finds it absolutely insane that I have to read Rolling Stone – a rock and roll magazine – to understand just how badly Wall Street Killed Financial Reform.  Why is nobody else, particularly in the mainstream media, talking about this?  Why do I have to read a friggin’ rock magazine to get this sort of analysis … in an election year, no less?

The answer to these questions, in my eyes, is a telling indication of how our country is circling the drain.  When nobody wants to even discuss the problems, we sure as heck aren’t likely to get a solution any time soon.  That’s okay, I suppose … so long as you’re fine with the too big to fail banks continuing to lose billions of dollars and future generations paying off the trillions in debt incurred from the incessant bailouts of the financial industry.

Mark Stopa

www.stayinmyhome.com

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“Findings” Without Evidence – An Appellate Brief

I had a Case Management Conference in a foreclosure case back in April.  The Court scheduled the CMC and warned the Plaintiff, in its Order, that its failure to attend “will” result in dismissal of the pending foreclosure lawsuit.  The CMC proceeded as scheduled (along with many others that same time) and despite the court’s warning, and despite the hearing lasting for an hour, nobody attended for the Plaintiff.  As such, the court entered an Order dismissing the case.  All is good, right?

Well, four days later, a different judge signed an Order vacating that Order of Dismissal, sua sponte, without notice, without hearing, and without evidence, making a “finding” that “local counsel was tied up in a different courtroom,” as if to justify the plaintiff’s failure to appear.  I respectfully but firmly disagree with this ruling, so I’ve filed an appeal of this Order vacating the dismissal.  Here is the Initial Brief.

I think it’s clear that a court cannot make a factual “finding” that “local counsel was tied up in a different courtroom” without evidence and without affording me notice and an opportunity to be heard.  For instance, who was this “local counsel”?  How could he/she have been “tied up” for over an hour without anyone knowing it?  Why did he/she not advice court personnel of his/her alleged conflict?  If there was an attorney who was truly “tied up,” why didn’t the Order identify this attorney and the nature of the conflict?  These are all questions that I could and should have been afforded the opportunity to ask before the court sua sponte vacated its Order of dismissal.  In other words, how could the court have concluded this “local counsel” was “tied up” without a hearing and without any evidence?  In my view, it could not.

I also believe the Order setting aside the dismissal was improper because it was entered by a different judge than the one who dismissed the case and because, even if “local counsel” was “tied up,” the actions of any attorney who is not counsel of record are a nullity.  The Initial Brief spells out these arguments, with case law.

Perhaps the biggest thing to take from this situation is to remember that, regardless of the type of case, judges can’t make findings without evidence.  For example, if you’re at trial in a personal injury case, the defendant can’t argue in closing argument that the traffic light was red if there was not some testimony/evidence establishing such.  In the foreclosure context, judges can’t find a homeowner defaulted on payments without proof in that regard.

Regardless of the type of case, the need for evidence also necessitates notice and an opportunity to be heard – a basic notion of due process.  Without it, I’ll keep filing appeals like this one.

Mark Stopa

www.stayinmyhome.com

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Stay Pending Appeal, Cancellation of a Foreclosure Sale

I blogged previously about this transcript, where a pro se homeowner defended herself at trial but was smart enough to bring a court reporter.  Well, I took her case for purposes of an appeal, and I loved her position so much that I’ve already drafted the Initial Brief for the Second District.  The brief is not yet complete (as I can’t include the record cites – the parts where there are random “R”s in the brief – until the clerk finishes the record), but I found the argument so compelling that I decided to ask the trial court (the very court which entered the Final Judgment) to cancel the foreclosure sale and stay the foreclosure pending my prosecution of the appeal.

That may sound confusing, so let’s simplify.  When a court grants a Final Judgment of Foreclosure, a foreclosure sale is set along with it – often as soon as 30 days later.  As a result, the homeowner may think he/she has a meritorious appeal, but there is virtually no chance of an appeal being finished before the scheduled sale, no matter how meritorious the appeal might be.  The briefing process alone takes months, sometimes more.  Hence, unless something is done to stop the sale, the home will get sold – and the homeowner forced to move – before the appeal can be completed.

This is where Fla.R.App.Pro. 9.310 comes into play.  Under that Rule, the trial court judge has the discretion to basically say “I know I granted a Final Judgment of Foreclosure against you, and I know I scheduled a foreclosure sale, but I think your chances of winning on appeal are strong enough that I’m going to cancel the foreclosure sale to allow you to bring the appeal.”  Then, if the trial court judge denies that motion, the Second District can entertain such a motion as well.

As you could imagine, this creates a pretty awkward dynamic.  Essentially, it’s like saying “Judge, I know you just ruled against me, but I think you were wrong, and I want you to admit you may have been wrong and allow me to appeal your ruling.”  For obvious reasons, stays pending appeal are often denied, putting homeowners in the unenviable position of trying to prosecute an appeal even after a foreclosure sale is over.

I’m thrilled to say, though, that when I gave the lower court judge this Emergency Motion for Stay Pending Appeal, he granted it, cancelling the scheduled foreclosure sale and allowing me to finish the appeal without risk of my client being dispossessed in the meantime.  The motion was pretty straightforward – I basically said the appeal was meritorious and attached the Initial Brief so the judge could see for himself.

If you can bear a bit of legal jargon, I think the Initial Brief is worth the read.  It discusses what’s necessary to re-establish a lost note under Fla. Stat. 673.3091 and the procedure for setting trial under Rule 1.440.  There’s also a lengthy discussion about why this plaintiff should suffer an adverse judgment, as opposed to getting a new trial, given the unconscionable fact-pattern with which we have all become far too accustomed in foreclosure-world (nearly five years of delays in prosecution by the plaintiff despite going against a pro se homeowner, numerous continuances given for the bank despite its apathetic prosecution of its own case, and the judge sua sponte prosecuting the case and helping the plaintiff along, etc.).

Two other things to keep in mind here – if you’re thinking about an appeal, make sure you keep Rule 9.310 in mind.  A meritorious appeal may not mean a lot if you’re forced to move in the meantime.  And if your case isn’t over and you think you might want to appeal, make sure you get a transcript of the trial – none of this is possible without a trial transcript.

Mark Stopa

www.stayinmyhome.com

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