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Archive for November, 2014

Fighting Foreclosure & Helping Others, Buffalo Bills style

Long before I became a foreclosure fighter and consumer advocate, I was a sports freak, with no team holding my heart like the Buffalo Bills.  I’ll always remember watching Darryl Talley return two INTs for TDs in the 1990 AFC Championship Game, leading Buffalo to the first of four straight Super Bowls.  25 years later, Darryl Talley is in the news for different reasons.  Talley lost his business, lost his home to foreclosure, and was on the verge of suicide when the public – Bills fans, mostly – raised $100,000 for him.  $100K!  In two days!

Here’s the story:  http://espn.go.com/nfl/story/_/id/11952955/buffalo-bills-fans-raise-100000-darryl-talley-former-linebacker

I just *love* this story.  It’s awesome to see the public reach out to help someone in this situation. This doesn’t happen nearly enough.

I find it a fun irony that this happened to a former Bills player (as opposed to someone from a different team).  You see, the Bills have been my favorite team my whole life, and, in a way, epitomize who I am in foreclosure-world, too.

Back in 1990, I was a short, skinny high school freshman in Wall, New Jersey, a small town about 90 minutes south of New York City.  In a sea of New York Giants fans, I was a vocal and proud Bills fan. Talley’s 2-TD day in January, 1990 set up the Bills against the Giants in Super Bowl XXV, a game Buffalo lost when a last-play field goal sailed wide right.

The following Monday morning in that high school was brutal.  Hundreds of classmates were waiting for me to walk in so they could rib me.  “Bills suck.”  “Wide right.”  I’ll always remember how the crowd didn’t dissipate until the homeroom bell rang, finally enabling me to open my locker!  LOL.  25 years later, though, I still haven’t given up.

The ensuing three years, in fact, Buffalo went back to the Super Bowl, only to lose each time.  Yet I won’t give up.

Buffalo’s last playoff game was so long ago it was last century, and the ending was so brutal it has a widely-known nickname – the Music City Miracle.  Yet I won’t give up.

I carry that perseverance and “never say die” attitude with me every day to foreclosure court, too.  When the system kicks me in the face, I get back up and come again.  Never give up.  Maybe it sounds silly, but you might have to be a Bills fan to truly understand.

Anyway, I’m not surprised see Bills fans raise $100,000 for Darryl Talley in two days.  After all, Bills fans don’t give up.  Foreclosure fighters never give up.

I just wish the public at large showed this much care, concern, and compassion for everyone in foreclosure, not just a former athlete.  After all, you shouldn’t have to be a former sports icon to enjoy the compassion of fellow Americans.  At the end of the day, it’s not about being a Bills fan – it’s a matter of human decency.

Mark Stopa

www.stayinmyhome.com

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Appellate Court Fun

Several months ago, I lost a trial in Sarasota that I shouldn’t have lost, so I appealed.  Here’s my Initial Brief.  I felt like I killed the argument.

So what did the bank say in its Answer Brief?  Not much.  Basically, they kept arguing that I failed to interpose contemporaneous objections, among other untrue factual assertions.  I tell you what … I’m not going to say anything they represented is untrue.  Instead, you read the trial transcript and you tell me – do you think I failed to object to anything I’m complaining about in my Initial Brief?

Yeah, I didn’t think so.  This Reply Brief should drive that point home pretty well.

I’d anticipate a written opinion reversing the Final Judgment from Florida’s Second District Court of Appeal in about 9-12 months.

 

Meanwhile, just today, Florida’s Fifth District Court of Appeal issued this decision, reversing an Order denying a Motion to Quash Service because the lower court denied the motion without having conducted an evidentiary hearing.

I think my favorite part about that decision is how three appellate judges followed the law even though many would say it was terribly inequitable to do so (my client was an investor, not the borrower, and was alleged to have evaded service of process).

Appeals are hard, especially in foreclosure-world.  Slowly but surely, though, I feel like we’re making headway in the appellate courts.  🙂

 

 

Mark Stopa

www.stayinmyhome.com

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Your Move, Fourth DCA

Earlier this week, I posted my Motion for Rehearing as Amicus in Holt v. Calchas, LLC, Case No. 4D13-2101 (Fla. 4th DCA 2014).

Kristy Holt (via her counsel) has now moved for rehearing, and the first thing she did upon doing so was to adopt and incorporate my motion into her Motion for Re-HearingSee paragraph 1 (“Appellant adopts and incorporates the Motion for Rehearing as Amicus filed by Mark P. Stopa, Esquire and Stopa Law Firm, P.A. (“the Stopa Brief”) in her motion.”).

I love when colleagues can collaborate on big issues like this, particularly since Holt’s counsel, Philippe Symonovicz, and I have never met.  We’ve got an industry to protect, and we’re going to protect it!  🙂

Anyway, I’m supremely confident I’m right about this one.  It’s your move, Fourth DCA.

Let’s hope we see a revised opinion here, but even if we don’t, I’m confident the other DCAs (and the circuit court judges within them) will continue to correctly apply paragraph 22 and will not follow HoltSee Samaroo v. Wells Fargo Bank, 137 So. 3d 1127 (Fla. 5th DCA 2014); Dominko v. Wells Fargo Bank, 102 So. 3d 696 (Fla. 4th DCA 2012); Zervas v. Wells Fargo Bank, 93 So. 3d 453 (Fla. 2d DCA 2012); Laurencio v. Deutsche Bank Nat’l Trust Co., 65 So. 3d 1190 (Fla. 2d DCA 2011); Konsulian v. Busey Bank, N.A., 61 So. 3d 1283 (Fla. 2d DCA 2011) (repeatedly characterizing the paragraph 22 notice as a “condition precedent to foreclosure”); Frost v. Regions Bank, 15 So. 3d 905 (Fla. 4th DCA 2009).

Mark Stopa

www.stayinmyhome.com

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Trial Fun, David Stern Karma

David Stern was a notorious foreclosure lawyer.  For years, he ran a fraud factory for banks, foreclosing on homeowners by the thousands (often through nefarious means), ultimately resulting in his disbarment.

Today, though, one fortunate homeowner is thanking David Stern for his shenanigans.  Let’s call it some overdue karma.

Here’s the fun fact pattern.

I had a trial in Tampa.  I had virtually no basis upon which to defend the case.  The bank was the original lender, so there were no standing defenses.  The paragraph 22 letter was pretty well drafted, and this judge had already deemed it sufficient.  And this bank was a credit union, so the witnesses it brought to trial were personally involved in the transactions in question.

This combination of facts – original lender, good paragraph 22 letter, and competent bank witnesses at trial – is rare in foreclosure-world.  That’s why I lost every evidentiary objection during trial – another rarity.  But when it came time for the bank to prove its lost note count, there were problems.  You see, even though the bank was the original lender, when it filed suit in 2010, it mailed the original Note to David Stern.  The bank’s own documents, introduced into evidence, reflected that the Note had been mailed to Stern, and the bank didn’t have the original Note at trial.

On cross, I got the bank’s witness to concede that it never asked for the Note back from David Stern, never sued him to recover the Note, never tried to serve him with process, etc.  Essentially, the Note wasn’t “lost” – it was in the possession of the bank’s own lawyer.

(Do you and I know Stern was disbarred?  Sure.  But this is a trial, and that’s the type of thing which requires evidence.)

 

Anyway, take a look at Fla. Stat. 673.3091, the statute which sets forth the elements to re-establish a lost note:

673.3091 Enforcement of lost, destroyed, or stolen instrument.

(1) A person not in possession of an instrument is entitled to enforce the instrument if:

(a) The person seeking to enforce the instrument was entitled to enforce the instrument when loss of possession occurred, or has directly or indirectly acquired ownership of the instrument from a person who was entitled to enforce the instrument when loss of possession occurred;
(b) The loss of possession was not the result of a transfer by the person or a lawful seizure; and
(c) The person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process.
(2) A person seeking enforcement of an instrument under subsection (1) must prove the terms of the instrument and the person’s right to enforce the instrument. If that proof is made, s. 673.3081 applies to the case as if the person seeking enforcement had produced the instrument. The court may not enter judgment in favor of the person seeking enforcement unless it finds that the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument. Adequate protection may be provided by any reasonable means.

 

In particular, look at (1)(c).  The statute requires the Note be “destroyed,” its whereabouts “cannot be determined,” or it is in the wrongful possession of an “unknown person” or a person that “cannot be found” or is “not amenable to service of process.”

At the conclusion of trial, I argued the bank did not meet this requirement.  Essentially, the Note wasn’t “lost” – it was in the possession of the bank’s own attorney, and the bank never even bothered to ask for the Note back.  The Court agreed.  Defense motion granted, case dismissed.

It probably didn’t hurt that I got to cite Correa v. U.S. Bank, Nat’l Assn., 118 So. 3d 952 (Fla. 2d DCA 2013), a published decision in which I was counsel where the trial court was reversed because insufficient evidence was presented to prove a lost note count.

Anyway, I left the courthouse today smiling/laughing.  For all the garbage that David Stern pulled, and all the homeowners he harmed, it’s about time some consumer got a good result because of his shenanigans.  🙂

 

Mark Stopa

www.stayinmyhome.com

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New Paragraph 22 Issue: Rehearing as an Amicus

Last week, Florida’s Fourth DCA issued a decision on paragraph 22 that came completely out of left field.  In Holt v. Calchas, LLC, Case No. 4D13-2101 (Fla. 4th DCA 2014), the court ruled that a defective paragraph 22 letter does not give rise to dismissal, as the letter is a condition precedent to acceleration but not foreclosure.  As a result, per the Fourth District, even if a paragraph 22 letter is defective, the bank can still foreclose on unpaid installment payments.  Oddly, the Fourth District made this ruling sua sponte, without briefing from the parties, and without a single legal citation.  Here’s the paragraph of the decision that everyone in the industry (plaintiffs’ lawyers, the defense bar, and a few judges with whom I’ve spoken) finds so odd:

We do not agree with Holt that insufficient evidence of compliance with paragraph twenty-two justifies dismissal of the entire case.  Paragraph twenty-two requires notice to allow the bank to accelerate the balance due on the notice.  Failure to comply with paragraph twenty-two does not affect the bank’s entitlement to foreclose on past due installments.  If the trial court had ruled properly, it should have entered a judgment of foreclosure only for the amount past due on the note at the time of trial, and not the full accelerated balance of principal.

I’ve argued the paragraph 22 issue probably 1,000 times at this point.  Never once has a bank lawyer even tried to assert this position.  Never once has a judge so ruled.  Perhaps more tellingly, several published decisions characterize paragraph 22 not just as a condition precedent to acceleration, but a condition precedent to foreclosure – including two decisions from the Fourth DCA.  See Samaroo v. Wells Fargo Bank, 137 So. 3d 1127 (Fla. 5th DCA 2014); Dominko v. Wells Fargo Bank, 102 So. 3d 696 (Fla. 4th DCA 2012); Zervas v. Wells Fargo Bank, 93 So. 3d 453 (Fla. 2d DCA 2012); Laurencio v. Deutsche Bank Nat’l Trust Co., 65 So. 3d 1190 (Fla. 2d DCA 2011); Konsulian v. Busey Bank, N.A., 61 So. 3d 1283 (Fla. 2d DCA 2011) (repeatedly characterizing the paragraph 22 notice as a “condition precedent to foreclosure”); Frost v. Regions Bank, 15 So. 3d 905 (Fla. 4th DCA 2009).

Under the circumstances, and even though I was not involved in the Holt case in any way, I felt compelled to file this Motion for Rehearing as Amicus.

Predicting what an appellate court will do is always tough, particularly in a case I’m not involved in.  That said, I’m hopeful this opinion will be revised on rehearing.  Paragraph 22 is a condition precedent to foreclosure, and the anomaly that is Holt should be fixed.

Mark Stopa

www.stayinmyhome.com

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Giving Thanks, Giving Back; Free House Giveaway

As the title of this post probably reflects, I was going to save this post for Thanksgiving. 

Upon reflection, though, I wanted to get it out there now, so homeowners who want to apply for my free house giveaway have more time to do so. 

Yes, I said free house giveaway.

Where to begin? …

This holiday season – and, well, always – I am so thankful for everything I have.  I am so fortunate and so incredibly blessed.

While my clients often tell me what a difference I’ve made in foreclosure-world, and how I’ve changed their lives, representing homeowners has changed my life, too.

Back in 2008, I was a one-man show, working mainly out of my house.

Now, Stopa Law Firm has 3 offices, several lawyers, and 20-some staff.  Thousands of cases, many hundreds of settlements, and 733 dismissals later, I can hardly walk into a courtroom anywhere in the state without everyone knowing who I am.

I’m thankful for each and every client who trusted my firm with their home.  I’m so humbled at every one of you who trusted the advice I’ve given, and so sincerely sorry to those who did not get a better result.  With every loss, I cried with you.

I’m thankful for all of the friends and colleagues who have been there for me along the way, both on the defense side (Matt Weidner, Mike Wasylik and Evan Rosen come to mind, though, frankly, there are too many to name – you know who you are), and the plaintiff’s side (yes, there are plenty of smart, compassionate bank lawyers, too – you also know who you are).

I’m thankful for the many fair-minded judges throughout Florida (again, too many to name, though I named many of you on a recent blog) who listened to my sometimes half-baked, cockamamie defense arguments for which there was no appellate case law – at the time, anyway.  😉  The entire industry and homeowners throughout Florida laud you, as you helped preserve the integrity of a system that so desperately needed it.

I’m grateful for the staff who have worked years of their lives with my firm, particularly Angela (who started with me at the very beginning), David (likewise), Rachel, Cathy, Alice, and Ashley.

It has been my incredible pleasure to have created and developed the law in the area of foreclosure defense, be it on paragraph 22, Fla. Stat. 559.715, face-to-face counseling in an FHA mortgage, or any of the other issues I so regularly argue.  Specific legal arguments aside, I’m thankful that homeowners facing foreclosure have a voice in the court system, and the system now recognizes that many valid defenses to foreclosure do exist.

Despite all of this, though, I often feel like I’m not doing enough.

So many homeowners have lost their homes.  There’s still so much sadness … so many tears.

I’m not satisfied with the current state of the law, either.  For example, Florida is the only state in the country, to the best of my knowledge and after hours of research, that applies (or, I should say, does not apply) the statute of limitations in a way Florida’s Fifth DCA says it should in U.S. Bank, N.A. v. Bartram, 140 So. 3d 1007 (Fla. 5th DCA 2014).  I explained this concept in detail in this blog, citing dozens of cases from Florida and other jurisdictions showing how the statute of limitations is supposed to work, and contrasting that with the ruling in Bartram.

As I suggested in the blog, I fear there are political undertones at play here.  After all, barring foreclosure based on the statute of limitations would really stick it to the banking industry, and some of the powers that be are always going to be ultra-hesitant to do anything that could be construed as sticking it to the banks.  Particularly now that the Bartram case is on appeal in the Florida Supreme Court, I can’t help but wonder:  “What harm there could possibly be in giving away the occasional free house to Florida consumers?”  If the banks screwed up and let the statute of limitations lapse, and that’s how the law is supposed to work, then why not rule that said homeowner gets a free house?  Is our universe going to spontaneously combust if we give away a few houses along the way?  I think not.  In fact, I’ve already done it (before Bartram), and the world has gone along just fine.  :

My inspiration for a free house giveaway also comes partly from my son Markus, age 8, who simply asked me one day:  “Why can’t you give away a house, Daddy?”

Well, Markus, I can.

And I will.  With this blog post.

Why?

Maybe it’s my not-so-subtle message (my friends in the industry know subtlety was never my forte) that the world will go on just fine if we give away a few free houses.

Maybe it’s my way of giving back to a community that has given so much to me.

Maybe I just have to feel like I’m doing everything I can here.

So, yes, I’m giving away a free house.

Here’s how it’s going to work …

Between now and December 20, 2014, postmark a typed letter, 200 words or less, to:

Stopa Law Firm

Attn:  Free House Giveaway

2202 N. West Shore Blvd

Tampa, FL 33607

 

In the letter, explain why I should choose you (or, to be more accurate, my children and I should choose you – we will decide together) for a free house.

Yes, this is not a gimmick.  Stopa Law Firm is going to buy someone a house.

I’m not promising a mansion on the water, but it will be a free and clear house that the winner will own.

The Rules:  (Not intended to be harsh, but some rules are necessary):

200 words or less.  If your letter is a novel, it will be ineligible.

If a photo helps explain your letter/situation, one photo attached to the letter is permitted.  Any letters with multiple photos will be ineligible.

Your letter must include: 1) the number of people in your family who would live in the home, with the ages of each; and 2) the county/town where you’d want the house to be located, bearing in mind this must be a house you will live in.

With that word/photo limitation in mind, you can say whatever you want.  That said, you have to realize – we can only choose one, and I’m sure the winner is going to be an incredible tear-jerker.  I’m thinking cancer, significant hardship, something of that ilk.  If you’re not in that boat, please spare yourself the disappointment and me and my kids the read.  😉

Anyone is eligible, but you can’t be an existing client.  (Sorry, I can’t run afoul of the Bar rule that prevents me from giving financial assistance to existing clients.)

But you are eligible if you were a client of the firm but you’ve already been foreclosed or your case was dismissed (as, in those instances, you’re a former client, not an existing one).

One letter per person.  If you send multiple letters, all such letters will be ineligible.

No calling my office about this!  No requests for special treatment!  No calling to ask if your letter was received.  If you do this and annoy us, your letter will be ineligible.

Sorry if that sounds harsh, but my staff are working on pending cases, and I don’t want them distracted with this.  🙂

Your letter must be received by December 21, 2014.  We will not acknowledge receipt and will not respond to each letter.  Some time between Christmas and New Years Day, I will announce the winner.

By sending the letter, you consent to my using it (or discarding it) how I see fit.  Frankly, I will probably just throw the non-winning letters away, but I’m likely to post the winner on this blog, and I may post others, too.  It’s not such a bad thing if we can put some faces/stories on the homeowners who are being foreclosed in Florida courtrooms on a daily basis.

I am not giving away a home so the winner can sell it and pocket the cash.  No, this home must be a home that you will live in.  I’m working out ways to ensure this, but if you think you’re going to get a house so you can sell it, please don’t bother applying – it’s not going to work that way.

All else equal, I’m likely to lean towards a homeowner in Hillsborough or Pinellas County, as those are the two counties where I have the most cases/clients.  That said, anyone who lives in Florida – and would live in this house – is eligible.

For the winner, I am picking the house!  The winner may get input, but any final decisions about what house is being bought, how much money is being spent, etc., are mine.  Obviously, my intent is to get a house that is nice/large enough for someone to live in and treat as a home.  But I have to reserve all decision-making ability on the details to avoid any problems.

I reserve the right to tweak/amend these rules without notice, as the need may arise.  That said, this is the concept, folks.

As the calendar hits November, enjoy the holiday season.  Give thanks for what you have.  And if you’re facing foreclosure (or faced foreclosure and lost), please know there are people out there who are fighting every day to make the system a better one for homeowners.  I’d like to think I’m one of them, and, if nothing else, hopefully this post shows that.  🙂

Oh, and every new client (not existing client, new client) who signs up between now and December 31 who mentions “Stopa Law Firm Free House Giveaway” upon signing up will get $100 off.

Happy Thanksgiving, Merry Christmas, and Happy New Year from Stopa Law Firm.

Mark Stopa

www.stayinmyhome.com

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