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Archive for July, 2013

Separation of Powers; Three Branches of Government

If I’ve heard it once, I’ve heard it 1,000 times.  “We have to move these foreclosure cases along because the legislature has told us to do so.”  I understand the sentiment, I suppose.  I get that judges are being pressured to get foreclosure cases off their dockets.  I understand, but I don’t agree.

For me, it all goes back to a term called “separation of powers.”  You remember the term.  You learned it in elementary school.  That’s when we all learned about the three branches of government in America – the executive branch, the legislative branch, and the judicial branch.  It’s probably been a while, so check out this website, appropriately called Congress for Kids, which explains the roles of each branch of government.  Now take a look at the “checks and balances” page on that website.  My favorite part?  This quote:

“By creating three branches of government, the delegates built a “checks and balance” system into the Constitution.  This system was built so that no one branch of government could become too powerful.”

When you read that quote, and remind yourself about what you learned in elementary school, I can’t help but think you’ll agree:

the legislature can’t tell the judiciary what to do.

The legislature isn’t the boss of the judiciary.  The legislature is an equal – a separate but equal branch of government.

This is why I cringe when someone from the judiciary, be it a judge, judicial assistant, or case manager tells me “the legislature told us we have to move these cases.”  I’m sorry, but that goes against the most basic form of government in America.  It’s against everything we learned in elementary school.  It’s contrary to what we teach our children today.  The legislature doesn’t get to boss the judiciary around – it just doesn’t.

So what’s my point?  Am I just another foreclosure defense lawyer advocating for delay?  Hardly.  I’m advocating for implementation of the very system of government upon which our country was founded.  I’m suggesting the judiciary should respond to the legislature’s pressures by saying:

“No.  We will not move cases faster just because you want us to.  We will operate the judiciary in the manner we see fit.  If you want the foreclosure cases to go faster, then give us the funding we need to hire more judges, more judicial assistants, more case managers, and more clerks.  We will not sacrifice the integrity of our judicial system because you refuse to give us the funds we need.”

Is that message isn’t being conveyed, and the judiciary keeps telling me they’re doing what the legislature is telling them to do, then I can’t help but wonder … is this foreclosure crisis really so big that we’re willing to ignore the principles of government upon which this nation was founded?  Is the stuff we learned in elementary school about “separation of powers” just a fallacy?

Mark Stopa

www.stayinmyhome.com

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“Best Day of My Life!!!”

“Thanks, Mark!  Best day of my life!!!”  That was the email I received from a homeowner today.  No, it wasn’t because I got her foreclosure lawsuit dismissed, and no, it wasn’t because I somehow got her a free house.  That was the email I received after I settled that client’s case by allowing the bank to foreclose in exchange for the bank agreeing not to pursue a deficiency.

What would anyone be so excited about such a settlement?  Think about it.  If your house is worth $175,000, but you owe $400,000, then even after the bank forecloses, you still owe the extra $215,000.  That’s called the deficiency.  Many homeowners are willing to get foreclosed, but they want to avoid liability for a deficiency.  Essentially, they just want to get that liability off their shoulders and move on with life.  That’s an especially attractive resolution for homeowners who have other assets.

But there’s more to it than that.  As I’ve explained previously, it’s entirely possible to buy a house with cash saved while a foreclosure case was pending.  That’s what made this homeowner so excited – not only that she was able to avoid a deficiency, but was able to buy a house with cash from the money she saved while the foreclosure lawsuit was pending against her.

In foreclosure defense, the victories don’t always come from court rulings.  Sometimes, the mere pendency of the lawsuit is all a homeowner needs to get back on his/her feet and get a fresh start.  So if you think your judge is not “defense-friendly,” or you’re in a part of Florida where banks usually win, try to remember this.  Sometimes, it’s not just the result that matters, it’s what you’re able to make of your situation in the meantime.

Mark Stopa

www.stayinmyhome.com

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Bank Confesses Error on Appeal

Do you know the requirements for service of process?  And why a bank would admit to an appellate court that a lower court’s ruling was wrong?

Fla. Stat. § 48.031(1)(a) sets forth a plaintiff’s obligations with respect to service of process.  It provides:

Service of original process is made by delivering a copy of it to the person to be served with a copy of the complaint, petition, or other initial pleading or paper or by leaving the copies at his or her usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents.

Under the plain language of the statute, the process server’s failure to “inform the person of the contents” of the Summons/Complaint being served requires that service of process be quashed.  See Bache, Halsey, Stuart, Shields, Inc. v. Mendoza, 400 So. 2d 558 (Fla. 3d DCA 1981).  That means, in layman’s terms, that it’s not enough for the process server to hand a defendant the Summons and Complaint – he/she must also explain to the defendant what the papers are.

Several months back, I represented a homeowner in a foreclosure lawsuit and believed the bank’s attempts at service were insufficient.  So I moved to quash service and vacate the default that was entered when the homeowner did not respond to the lawsuit.  The lower court denied my motion without explanation.  As I was confident the motion should have been granted, I filed an appeal.  In response to my Initial Brief, the bank filed this Confession of Error.  What does that mean?  Simple.  Instead of the bank arguing that the lower court’s ruling was correct, as typically happens in an appeal of this type, the bank conceded the ruling was erroneous and needed to be reversed by the appellate court.

Why would a bank just give up so easily?  No, it’s not a sudden onset of morality.  Rather, the banks often realize they’re better off admitting a lower court ruled incorrectly and losing that one case to prevent an appellate court from issuing a written decision that can impact thousands of other cases.  Think about it.  Since the bank conceded error, Florida’s First District Court of Appeal probably won’t issue a written opinion explaining how the motion to quash should have been granted because the process server did not inform my client of the contents of the Summons and Complaint.  The bank admitted the error, so the appellate court can issue a simple order reversing the lower court without a lengthy explanation.  By proceeding in this manner, the bank loses this appeal, but it prevents others from catching on to this argument.

That’s where I come in.  Banks may not want homeowners to know about this argument, but I do.  So read my Initial Brief.  And remember – a homeowner facing foreclosure can challenge service of process where the process server did not inform the homeowner of the contents of the Summons and Complaint.  See Fla. Stat. 48.031(1)(a).  Just bear in mind, like most defenses in foreclosure, this defense can be waived if not timely asserted, so don’t sit on your rights!

Mark Stopa

www.stayinmyhome.com

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Bank Confesses Error on Appeal

Do you know the requirements for service of process?  And why would a bank ever admit to an appellate court that a lower court’s ruling was wrong?

Fla. Stat. § 48.031(1)(a) sets forth a plaintiff’s obligations with respect to service of process.  It provides:

Service of original process is made by delivering a copy of it to the person to be served with a copy of the complaint, petition, or other initial pleading or paper or by leaving the copies at his or her usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents.

Under the plain language of the statute, the process server’s failure to “inform the person of the contents” of the Summons/Complaint being served requires that service of process be quashed.  See Bache, Halsey, Stuart, Shields, Inc. v. Mendoza, 400 So. 2d 558 (Fla. 3d DCA 1981).  That means, in layman’s terms, that it’s not enough for the process server to hand a defendant the Summons and Complaint – he/she must also explain to the defendant what the papers are.

Several months back, I represented a homeowner in a foreclosure lawsuit and believed the bank’s attempts at service were insufficient.  So I moved to quash service and vacate the default that was entered when the homeowner did not respond to the lawsuit.  The lower court denied my motion without explanation, but gave me a stay pending appeal.  As I was confident the motion should have been granted, I filed an appeal.  In response to my Initial Brief, which explained the law on this issue, the bank filed this Confession of Error.  What does that mean, you ask?  Simple.  Instead of the bank arguing that the lower court’s ruling was correct, as typically happens in an appeal of this type, the bank conceded the ruling was erroneous and needed to be reversed by the appellate court.

Why would a bank just give up like that?  No, it’s not a sudden onset of morality.  Rather, the banks often realize they’re better off admitting a lower court ruled incorrectly and losing that one case to avoid an appellate court issuing a written decision that can impact thousands of other cases.  Think about it.  Since the bank conceded error, Florida’s First District Court of Appeal probably won’t issue a written opinion explaining how the motion to quash should have been granted because the process server did not inform my client of the contents of the Summons and Complaint.  The bank admitted the error, so the appellate court can issue a simple order reversing the lower court without a lot of explanation.  By proceeding in this manner, the bank loses this appeal, but it prevents others from catching on to this argument.

That’s where I come in.  Banks may not want homeowners to know about this argument, but I do.  So read my Initial Brief.  And remember – a homeowner facing foreclosure can challenge service of process where the process server did not inform the homeowner of the contents of the Summons and Complaint.  See Fla. Stat. 48.031(1)(a).  Just bear in mind, like most defenses in foreclosure, this defense can be waived if not timely asserted, so don’t sit on your rights!

 

Mark Stopa

www.stayinmyhome.com

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The Big Picture: What I’m Fighting For

As I write blogs for this website, I often discuss legal concepts and theories, defenses to foreclosure, and various ideas on how to successfully defend foreclosure lawsuits in Florida.  These posts are important, as I want everyone to see foreclosure court the way I see it – to understand what works and what doesn’t.

Sometimes I worry, though, in the midst of these technical, legal arguments, that some will lose sight of the big picture.  Well, I’d like to think I never lose sight of the big picture, but I want to make sure everyone reading this doesn’t, either.

So what’s the big picture in foreclosure-world?  It’s this.  One short, simple post.  (Read the links inside that post, too.)

Quite simply, a small fragment of our society is hell-bent on redistributing wealth from middle class America to society’s socio-economically elite and uber-wealthy.  That’s what foreclosure is, really – a process whereby houses are taken from lower and middle income families, sold, and ultimately transferred to a hedge fund, big bank, or an individual with an eight or nine figure net worth.  Someone like, yes, Bill Clinton.

My mission, as a foreclosure defense lawyer, is to stop it.  I want to stop the systematic redistribution of wealth that happens every day in our society, the stealing from the middle class for the benefit of society’s elite.

No matter how much time I spend talking about the specific defenses that exist in foreclosure cases – and I know I do it frequently – please never lose sight of the big picture!  And if you agree with me, share what’s going on with a friend or family member.  Significant change won’t happen until more people get involved and join the fight!

Mark Stopa

www.stayinmyhome.com

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Who’s Laughing Now, Banksters?

I had a trial on June 10, 2013 in Sarasota.  I was one of 118 cases set for trial that morning, all at the same time, all before the same judge.  I lost.  I was very frustrated, not only at the result, but because I felt like I was not treated in a respectful manner.  Not reading my case law?  Asking me “You like to hear yourself?”  Then, when I moved for a stay pending appeal, it was denied – without a hearing.

The banksters thought it was just hilarious.  Remember, there were 118 cases set all at once, so the courtroom was full of plaintiffs’ attorneys against whom I often litigate these cases.  They’ve been chatting about it, amongst themselves, ever since.

With all due respect to the lower court judge, I was confident the ruling was wrong.  So I filed this Emergency Motion for Review of Order Denying Stay Pending Appeal in Florida’s Second District Court of Appeal.  Today, I received this Order Granting Stay Pending Appeal from the Second District.  Foreclosure sale cancelled.  Stay pending appeal granted.  Where the lower court did not even give me a hearing on my motion for a stay, the Second District took just one day after the plaintiff filed its Response to grant the stay.

It goes without saying, of course, that the Second District must think my appeal has some merit, as the “likelihood of prevailing” is one of the requirements for a stay.

So who’s laughing now, banksters?

Laughing aside, it didn’t have to be this way.  Hopefully, the banksters learn a lesson here.  I won’t win every case, of course.  But as this transcript shows, I’m going to fight for my clients.  And if I lose, and I don’t think I should have, you might find yourself facing something like this and this.  Something to think about the next time you laugh, or the next time you turn down one of my clients’ reasonable settlement proposals.

 

Mark Stopa

www.stayinmyhome.com

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