Archive for December, 2013
I watched the movie “Elf,” starring Will Ferrell, last night. In the movie, one of the rules for being an elf is to “Treat Every Day Like Christmas.”
It’s a bit corny, yes. But can you imagine this in the foreclosure context?
Treat every day like Christmas.
Think about it. At Christmas, everyone realizes how wrong it would be to foreclose on homeowners. In years past, foreclosure sales during the holidays were cancelled, ensuring no homeowners were thrown out during the holiday season. This year, Florida courts planned in advance, making sure no sales were even scheduled for the end of December. No foreclosures, no sales – everyone stays in their homes.
Before the holidays pass and we all return to our normal routines, we should all take a minute and think about why this is. Why is it that our courts don’t foreclose on homeowners during the holidays?
The answer is obvious. Foreclosing in December is cold. It shows a lack of compassion. An absence of humanity. We all have too much respect for our fellow man to do this.
Once you channel those thoughts and really understand why foreclosing over the holidays is wrong, let me ask … what makes any other time of year so much different? Is foreclosing on January 5 really that much better than December 25?
Sure, I suppose there are instances where foreclosure is unavoidable. However, before we all go back to our daily routines, particularly those of us in the foreclosure industry, we should all remember how we feel right now. Just like Elf says, we should all Treat Every Day Like Christmas.
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Here is a Petition for Writ of Prohibition that I filed in the Second District.
Today, the bank conceded this Petition should be granted. Trial cancelled, case dismissed.
Jurisdictional arguments like this are an important part of foreclosure defense. Make sure you’re utilizing them where appropriate.
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When I started doing foreclosure defense back in 2008, not many lawyers were practicing in that area of law. Today, there are hundreds. Just as with any field of work, there are some lawyers who know what they’re doing and others who, well … not so much.
Deciding who to retain as counsel in your foreclosure may seem like a daunting task. If you received dozens of advertisements in the mail, it may seem impossible to choose one.
Here are some things I recommend you think about as you figure out who you want to act as your foreclosure defense attorney.
1. Duration of experience. Has this lawyer been representing homeowners in foreclosure for years? Or months? How many cases has he/she handled?
2. Depth of experience. Is this lawyer fighting through trial and appeal? Or is the lawyer going to withdraw as trial approaches, as his/her lack of experience causes him to shy away from a trial? How many trials has that lawyer attended?
3. Results. Has this lawyer ever won a trial? Ever had a case dismissed? Ever won a summary judgment for a homeowner? How many?
4. Which lawyer will handle the case? I’ve seen some foreclosure defense firms which advertise/market like crazy, but I know darn well the guy you see on TV isn’t the guy who will handle your case.
5. Fees. Does the lawyer bill by the hour? Monthly? yearly? Are there extra fees charged based on results?
Since I posed the questions, here’s how I’d answer them with respect to myself:
1. I’ve represented many thousands of homeowners in foreclosure since 2008.
2. I’ve litigated foreclosure lawsuits from inception through trial and appeal. I’ve attended dozens of trials for Florida homeowners and I’ve been counsel in a few published appellate decisions. The Second District’s decision in Correa not only dismissed a foreclosure case, it created new law for homeowners to use in future cases.
3. I’m approaching 500 cases that I’ve had dismissed. I don’t typically talk about this publicly, as I don’t want anyone to be misled into believing their foreclosure case is likely to be dismissed simply because I’ve had a lot of cases dismissed in the past. Dismissal is almost always possible, but almost never certain. There are a number of factors that impact whether dismissal will happen in a given case, and often those factors are outside of my control.
Colleagues in the industry see my number of dismissals as an impossibly high figure, but it’s true. This is my life’s passion, to help as many homeowners as possible by getting as many of their lawsuits dismissed as possible.
The reasons for these dismissals run the gamut, from insufficient evidence presented at trial, to defensive summary judgments granted, to pleading defects, plaintiffs’ failure to comply with orders, etc.
I firmly believe, in my heart of hearts, that I’m the best there is at defending these cases and getting them dismissed. I’d like to think that’s why I’ve obtained referrals from existing clients, other lawyers, judges, plaintiffs’ lawyers, secretaries at plaintiffs’ firms, process servers, bailiffs, court reporters, and others in the industry.
4. I can’t handle every hearing myself. However, my staff and I work diligently to ensure I handle the most important hearings/trials myself. If I’m not able to attend, I ensure another, capable attorney is able to do so.
Often, the firms that advertise for foreclosure defense the most are the ones who care the least about the work they perform in court.
That’s why I encourage everyone to go to court and watch.
You want to decide who to retain as counsel? Go sit in your local foreclosure courtroom some day. Watch the hearings. Watch the lawyers. I’m regularly asked for a business card from bystanders in court. Remember, these are public courtrooms, so you’re perfectly entitled to go watch.
5. My firm generally charges by the year. There are exceptions, and the fees can vary, but I’m confident our fees are the lowest in the industry among those who are capable defenders.
On many occasions, my colleagues have pushed me to charge more, arguing I don’t charge enough for the services I provide. That approach just isn’t for me. I want to charge as little as possible to help as many people as possible, particularly those who otherwise could not afford it.
Hopefully this gives you some insight on the things to be looking for and the questions to ask in your search for a foreclosure defense attorney.
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On Friday, December 6, 2013, Stopa Law Firm had its annual Christmas party. I took the staff to Busch Gardens for the day. The event was planned months in advance, with the calendar blocked off for all attorneys and staff.
Unfortunately, in foreclosure-world, judges sometimes sua sponte set hearings and CMCs over which we have no input. Hence, even though we blocked off the calendar for that day, two hearings were set for December 6, 2013. One of those was set by a Tampa judge who, when I alerted him to the previously-scheduled Christmas party, graciously reset the CMC for a different date. That courtesy was much appreciated, and it speaks to the professionalism exhibited by the judiciary in the Tampa area.
A second CMC was set by a judge in Volusia County. In that case, I filed a similar motion to reschedule, alerting the Court to the previously-scheduled Christmas party. Without a hearing, the court’s staff advised my office that the motion had been denied and our in-person appearance was required on December 6.
Convinced the court did not realize the facts, I took a few minutes and drafted this, more comprehensive, Emergency Motion to Continue Hearing or Appear Telephonically. I explained how the party had been planned months previously, that the Court gave no input on the CMC hearing date (set with just a few weeks notice), and that it would be unfair to require an attorney from my firm to miss the Christmas party on such facts. Alternatively, I argued that we should be allowed to appear by phone because the Florida Rules of Judicial Administration require phone appearance for hearings of 15 minutes or less absent “good cause.”
This is the Order I received in response.
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Over the past few years, I’ve been able to get many hundreds of foreclosure cases dismissed. I’d like to think I’ve had a successful foreclosure defense practice, and I feel like I’ve made a difference for homeowners. It hasn’t always been easy, but it’s been a rewarding, enjoyable career path. For many homeowners, though, it’s not enough. A dismissal without prejudice means the bank can re-file, and they want more. “Quiet title.” “Eliminate my mortgage.”
Part of it is an unfortunate offshoot of the robo-signing fiasco and securitization debacle. “The banks committed fraud.” “The loan wasn’t securitized properly.” Many people mislead themselves into thinking this entitles them to a free house.
Part of this is natural. After all, who wouldn’t want a free house? I would, and I’ve heard judges admit they would in open court. I can’t even call this “greed,” really. Everyone likes free stuff.
What’s frustrating when I encounter these homeowners is their inability to be pragmatic. They’re not in court every day like I am. They don’t understand the climate of the judiciary. They don’t know how the law works. They don’t know how loathe judges are to ever rule this way.
Take a look at the Third District’s November 20, 2013 ruling in BAC Home Loans Servicing, Inc. v. Gamarra. In that case, the trial court entered an Order granting the homeowners a quiet title judgment. Free house … right? Wrong. The Third District did not mince words when it overruled the lower court’s decision. As if to give a warning shot to any attorney seeking such a result for homeowners, the court began the opinion with the following:
A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer”; or “(4) offer evidence that the lawyer knows to be false. . . .” R. Regulating Fla. Bar 4-3.3(a)(1), (4). Despite the clear and unambiguous directive of Rule 4-3.3(a), counsel representing the defendants, Mary Gamarra de Headley and Todd Headley (“the Headleys”) in this foreclosure action, made material misrepresentations in the Headleys’ motion for final judgment, resulting in the issuance of a final judgment that granted relief which was not pled.
Read on. It only gets worse from there.
This is why I don’t talk about quieting title. I don’t blog about it, and I’m loathe to ever discuss such relief with homeowners, much less seek it. No, I’m not afraid of getting my hand slapped. Quite simply, it’s almost always a complete waste of time and money, and it creates false hope/expectations for homeowners.
Let’s put it this way … don’t you think if there were a realistic way to quiet title for Florida homeowners that I’d be doing it regularly?
Quieting title is not impossible, but it’s close. So everyone reading this who perceives that as his/her goal needs to re-assess. “Quieting title” isn’t a goal in foreclosure defense. As for any lawyers trying this, you better be prepared. When the appellate court starts an opinion about quieting title and eliminating a mortgage by citing a Bar rule, this is a path upon which you must tread carefully.
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