Archive for October, 2013
A Florida judge has recommended the disbarment of David Stern. This is a good thing, I suppose, and a long time coming. But if this is how the Stern story ends, then color me disappointed.
David Stern made hundreds of millions of dollars representing banks in foreclosure lawsuits throughout Florida. Not a decent living. Not hundreds of thousands of dollars. Hundreds of MILLIONS of dollars.
As business got good (for him – awful for everyone else), he systematically thumbed his nose at the courts, as the Report explains. Basically, it was too inconvenient for Stern to do things like notarize documents correctly, return phone calls of homeowners trying to save their homes, or be honest with our courts. Now, The Florida Bar has spoken, and it seems clear Stern will never practice law again.
This might sound like justice for some – and many of my colleagues in the foreclosure defense arena are characterizing it as such. For me, though, this rings hollow.
Take a look at the Report. For all of these misgivings, Stern is looking at paying less than $60,000. For you or me, that’s a lot of money, but when you’ve just made hundreds of millions of dollars, as Stern did, it’s pocket change. Where’s the justice in that?
Think about it this way …
How many lawyers do you think, right now, would gladly give up their license to practice law for $100 million? $50 million? Perhaps a better question – how many lawyers would turn that down? If this is all that happens to Stern – disbarment, and a $60,000 fee, then who’s the winner here? Call me crazy, but I say it’s David Stern.
It doesn’t have to be this way. The report reflects Stern committed crimes, not just Bar violations. And the Bar proved it by clear and convincing evidence. Here’s hoping this Report gets the attention of law enforcement officials and that Stern faces stiffer punishment than losing a law license that he didn’t need any more anyway.
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Here’s an email I received from a prospective client last night, which I’m re-posting here with that person’s consent (editing slightly to preserve confidentiality). No need to elaborate, really – just read it.
(Sadly, this is the type of stuff I see every day.)
Dear Mr. Stopa,
I just came home from Active Duty 3 months ago. Here are the events – minus administrative details – according to the docket:
1. Chase Bank filed Lis Pendens in 2008
2. Chase Bank received Final Judgment of Foreclosure in 2010 (I was away on Active Duty and not present during any of the process since 3/2009)
3. Chase Bank CANCELLED the scheduled sale shortly before the sale date
4. Chase Bank Voluntarily Dismissed the Foreclosure / Dissolved Lis Pendens and Vacated Final Judgment 2012 (again – I was never notified / serviced on any of this – but evidently I still own the house??) – there has been absolutely NO further action on the docket for this house by Chase since 2012.
5. I came home to a house that has been abandoned, ruined, stripped of everything including wiring and all personal items, and has a $30k code enforcement lien on it (welcome home). I filed a detailed police report with photos, etc.
6. Chase Bank filed an affidavit of Non-Military while I was on active duty overseas.
My questions are:
1. The house is insured – can I file a claim?
2. Is the house still mine? I haven’t had possession in over 5 years??
3. Can I prevent further foreclosure proceedings?
4. Wasn’t the first final foreclosure a violation of the SSCRA? After they foreclosed, then abandoned the property, it has been absolutely destroyed and is uninhabitable. What type of recourse do I have, if any?
I have more questions….but it this seems like a good place to start.
Thank you for your time.
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On September 25, 2013, Florida’s Second District Court of Appeal issued a written opinion in Focht v. Wells Fargo Bank, N.A., where it reversed a Final Judgment of Foreclosure based on the plaintiff’s failure to introduce any evidence that it had standing when it filed the lawsuit.
The bank’s obligation to prove its standing to foreclose at the time it filed suit (as opposed to at the time of trial or the summary judgment hearing) is well-established in Florida law. It’s a concept I’ve discussed many times on this blog, including here, here, here and here. As such, the Focht decision might seem uneventful, as it merely upheld established precedent – one of many cases to do so.
However, the Second District didn’t stop there. Instead of simply following the prior case law and ruling the homeowner prevailed in the appeal, the Second District went on to rule, in layman’s terms, that it didn’t think the homeowner should prevail on that type of fact pattern any more and that the Florida Supreme Court should change the law regarding “standing at inception.” In legal terms, the Second District certified the following question of “great public importance” to the Florida Supreme Court:
Can a plaintiff in a foreclosure action cure the inability to prove standing at the inception of suit by proof that the plaintiff has since acquired standing?
The concurring opinion is particularly alarming. I’ll let you read it for yourself, but one judge essentially explains why he believes the law should be changed on this issue.
My reaction? Wow.
I’m very surprised to see the Second District – which has always, in my view, been fair and even-handed in the foreclosure context – propose to change established law for the sake of expediency. I’m particularly surprised to see it do so without mentioning stare decisis, any case law about the circumstances in which the law is changed for expediency’s sake, Fla. Stat. 702.015, or Rule 1.110(b). As a result, though I was not counsel up until this point, I’m pleased to file this Motion for Rehearing in the Second District.
I’m optimistic the Second District will reconsider the certification of this question to the Florida Supreme Court and will retract that portion of its ruling from the written opinion. Otherwise, I look forward to fighting this issue, on behalf of Ms. Focht and, frankly, all Florida homeowners, in the Florida Supreme Court.
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