Back in third grade, my friends and I played touch football every day at recess. Part of what I remember about those days, aside from having fun and wanting to win, was always insisting that all my friends play by the rules. My stubborn insistence in this regard got so over-the-top at one point that my teacher had to talk to my parents about it. (“Mark is so rigid. He always insists all the children play by the rules.”) Perhaps not coincidentally, that was also the age I can first remember wanting to be a lawyer.
Anyway, that personality trait – an understanding of the Rules and a deep-seeded insistence that everyone follow them – is a big part of what helps me succeed in foreclosure-world.
The “Rules” I’m talking about are the Florida Rules of Civil Procedure and the Florida Rules of Appellate Procedure. These Rules are long. They’re indescribably nuanced. And these Rules (along with case law construing them) are filled with procedural traps which, if understood, can be utilized to help win cases, while if misunderstood, can cause one to lose.
In my view, not understanding these Rules is the biggest pitfall for pro se homeowners as well as young lawyers. I try not to over-generalize on this blog, but as I see it, there’s one, simple truth here: if you don’t know the Rules of the game you’re playing, you’re overwhelmingly likely to lose.
By way of example, many lawyers know that summary judgment hearings are generally not supposed to take place until discovery is complete. But is that the end of the analysis? Of course not. How long is “too long” to wait to pursue discovery if one wants to avoid a summary judgment hearing? Is there a black and white rule? What type of motion(s) need to be filed? When? Does a hearing need to be set? When? If the lower court proceeds with the summary judgment hearing amidst cries of “outstanding discovery,” then grants judgment, and the losing party appeals, to what extent does the appellate court defer to the lower court’s decision? Does the “standard of review” on appeal matter? How?
Are you confused yet? 😉
The answers to these questions are just some of the reasons why I won a recent foreclosure case and why I’m confident Florida’s Second District is going to rule in my favor on the bank’s appeal. Want to understand more? Here, check out the bank’s arguments on appeal as well as my explanations why the Second District should rule the lower court correctly dismissed the case. My Answer Brief also spells out my latest and greatest arguments on Fla. Stat. 559.715 (an issue that isn’t going away any time soon), but, for me, that appeal is all about procedural nuances.
You think pro se homeowners, young lawyers, and plaintiff’s foreclosure “mills” are the only ones to fall into these procedural traps? Ha! I’ve seen experienced lawyers from some of the best law firms in the state lose cases on these types of issues – often. Heck, the nuances are often so intricate that judges either get the rulings wrong because they don’t know them (hey, it happens) – or, perhaps, don’t like the inequity of having to follow such rules. Yes, six-figure lawsuits can be won or lost entirely on whether the parties followed the requisite procedural rules. As an example, here’s an Initial Brief I recently filed in another lawsuit.
Do you understand the arguments in that Initial Brief? I won’t be presumptuous, so I’ll ask … When is a 1.540 motion appropriate? Is an Order denying such a motion a final order, or non-final? Is it subject to a motion for rehearing? Does it matter if the motion is denied “without prejudice?” Can a second, successive motion be filed if the first was denied on technical grounds? Is evidence necessary to prove excusable neglect and insufficient service of process upon bringing a 1.540 motion? If so, what type of evidence? And what quantum? Confused again? 😉 Don’t know the answers to these questions? Here, read on.
I’m not posting these anecdotes to brag or to cast aspersions on anyone, and I’m not trying to say I know every Rule inside and out. My point, simply, is this … The procedural Rules litigants in foreclosure lawsuits must follow are extremely nuanced. There’s no way that you, as a non-lawyer, know them all. Heck, many (if not most) lawyers don’t know them all. I suspect some judges would concede they don’t know them all, either.
Typically, you get just one chance to defend your foreclosure case (or litigate whatever lawsuit you’re arguing). When you wage that battle, make sure you’re playing by the Rules. Trust me – it’s no fun to lose, but it’s even worse when you lose because you didn’t know the Rules of the game.
For many years now, I’ve been getting foreclosure cases dismissed throughout Florida by arguing the banksters failed to comply with paragraph 22 of the standard, Fannie Mae Mortgage – either because they didn’t give the notice at all, or because the notice lacked the requisite information. Throughout this time – years of arguments and hundreds of dismissals – no published decision in Florida ever actually held that dismissal was the proper remedy where a bank didn’t comply with paragraph 22.
And the way this opinion came about made it one of the best, most fun experiences of my career.
In early November of 2014, Florida’s Fourth District Court of Appeal issued a new decision in Holt v. Calchas, LLC. I about fell out of my chair when I read this portion of the ruling:
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.
In my view, that holding was contrary to law. But what could I do? The published decision had already been issued, and I wasn’t even counsel in the case.
It seemed daunting, but I had to try. So I drafted this Motion for Rehearing as Amicus, explaining in detail why I believed that a bank’s failure to comply with paragraph 22 did not authorize a foreclosure on installment payments, but required dismissal of the case. I talked to the attorney representing the homeowner, and he agreed with my argument, so he incorporated my argument, verbatim, into his Motion for Rehearing. See 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 then wrote this blog, entitled Your Move, Fourth DCA, and began circulating my Motion for Rehearing to every circuit judge who would listen, arguing Holt was not the law in Florida.
Today, the Fourth District ruled on the Motion for Rehearing, and it was a home run. The Court withdrew its original decision and issued an entirely new opinion. Better yet, the Court agreed with my argument, holding that the bank’s failure to prove paragraph 22 compliance required dismissal of the foreclosure lawsuit! Here, check out the new verbiage:
Although, in our previous opinion, which is now withdrawn, we construed paragraph twenty-two as relating to acceleration remedies and not past due amounts, upon consideration of Holt’s motion for rehearing, we are satisfied that failure to prove compliance with paragraph 22 at trial requires dismissal of the case.
This is now, unquestionably, the law in the state of Florida. Where a bank doesn’t comply with paragraph 22, dismissal is required.
People ask me sometimes why I only do foreclosures (as opposed to other areas of law). This experience shows why. I mean, seriously … Does it get any better than this? I get to spend my career not only helping consumers against the big, bad banksters … I get to (help) create law every day. That’s what this whole experience was, really – creating law. Call me a dork, but it just doesn’t get better than this.
Also, it shouldn’t go un-noticed that Florida’s judges are listening to our arguments. Notice, too, though, that it took the correct presentation of that argument to have the opinion come out the right way. Hopefully that word of caution isn’t lost on those trying to engage this fight themselves. But let’s keep up the fight, and perhaps we can keep creating law that’s favorable for consumers in foreclosure-world. 🙂
My “a-ha” moment came in April of 2014. I had never discussed the statute of limitations in foreclosure-world openly (on this blog or otherwise). Behind the scenes, though, I was spending countless hours researching case law from both Florida and other states. That research led to one obvious conclusion:
Every state in the country that had ever ruled on the statute of limitations ruled in our favor (save the Fifth District’s recent decision in Bartram).
So I wrote this blog, setting forth all the case law from all the states. Florida. New York. Arizona. Texas. Connecticut. North Carolina. Michigan. Minnesota. Alabama. Idaho. Colorado.
I laid out all the cases. String-cited them. Basically, I dared the banksters to prove I was wrong. “Here you go, banksters. Show me a case that rules otherwise. Show me one state that goes your way.”
Bartram is currently being briefed in the Florida Supreme Court. Unfortunately, it’s not my case, so I don’t get to write the briefs. But my analysis on how the statute of limitations works in other states very much made it into the Bartram brief.
For me, that’s always been such a powerful part of the analysis. “Look, Florida Supreme Court. If you rule the way the banksters want, you’ll be the only state in the country ruling this way.” While it’s theoretically possible for Florida to be an outlier, that’s really not how the law should work.
Yesterday, the banksters filed their Answer Brief in Bartram. This was their big chance to show the Florida Supreme Court that our analysis is wrong. “See, Florida Supreme Court? You wouldn’t be on an island ruling in our favor … Look at these other states that agree with you.”
So what did the banksters do? Nothing. Nada. Zilch. Zippo. They couldn’t cite one state which ruled the way the banksters want the Florida Supreme Court to rule. Not one.
Sadly, it’s not my Oral Argument to make, but I know what I’d argue: “The Bank is asking you to stand on an island, ruling in a way no other state in America has ruled. What we are asking is that you follow the analysis employed by 14 other states.”
I can’t predict how the Florida Supreme Court will rule. (And, to be clear, these other states’ rulings don’t stop the Florida Supreme Court from ruling against us.) But no matter how it ultimately comes down, I’ll always look back at those nights of research, back in April of 2014, as my “a-ha” moment … the moment I knew this analysis was right … that this federal court memo on the statute of limitations was a winner … that my arguments to local judges that “no state in the country has ever ruled the way Bartram has” is totally correct. After all, the banksters had their chance to prove that analysis wrong, to show ONE STATE that goes their way, and the banksters came up empty.
I deliberated long and hard whether to submit this blog entry. Ultimately, I decided to post it, but with the greatest disclaimer(s) possible. And that’s where I’ll start: the disclaimer(s).
The fact pattern here is exceedingly unique. I’d say “one of a kind” in the entire State of Florida if I didn’t have a couple of others like it, but in terms of anything you’ve ever read, I assure you – this is “one of a kind.” The chances of you (a pro se homeowner) being able to duplicate what I did here – eliminate a first mortgage – are zero. Zero. Please do not try. I mean it. Do. Not. Try. You will get crushed, and you’ll create bad precedent for us all. And please don’t call my office and ask if this means you can get a free house on your case. It doesn’t. (If you’re wondering about the statute of limitations, please re-read my blogs on that topic – here and here.)
So if this fact pattern can’t be duplicated, and I don’t want you to even try, why I am posting this? Simple. I want homeowners to understand that if/when the stars align perfectly – when 20 different procedural quirks all come together at the same time in a perfect way and an argument lends itself to eliminating a mortgage, I will pounce on it. You all know me. This is what I do. I exploit every nuance, drive a wedge through every crack, and pounce on every weakness the banksters may expose (and let’s face it – quite often, they’re rather sloppy) – but I’ll do so in a legitimate way that the law will allow.
I won’t file bogus quiet title suits that will soil my reputation with judges (and yes, there are lawyers out there doing that right now). I will file such suits in the exceedingly unusual circumstance where I think I can win. And if that happens, you won’t have to ask me if your case applies – I’ll be the one initiating that conversation with you.
This case presented one such fact pattern, so I did it. Quiet title suit filed, judgment entered, motion to vacate denied. Bye, bye mortgage.
The banksters have now appealed, and so has the homeowner’s association, but I’m confident they’re both going to lose. To understand why, and follow the exceedingly unique fact pattern that gave rise to this mortgage elimination, take a look at the association’s Initial Brief, and the Answer Brief I just prepared. My brief sets forth the facts, but, again, do not try to duplicate this. You will fail. If you want this type of result, hire an experienced counsel, cross your fingers, and hope you win the lottery. That’s the point here – a mortgage eliminator is possible – I’ve done it a handful of times now – but even with an experienced counsel, it’s still like winning the lottery.
Another reason I’m posting this: the banksters need to realize that when I bring a quiet title suit, I fully expect to win. So if they want to prevent the dissemination of that victory to the public at large (and others from trying to duplicate that work in other cases), then they’d be well-served to settle and enter a confidentiality agreement. That’s not a threat by any means – it’s the simple reality of living in a world where these records are available publicly and many people are trying to reverse-engineer my work by pulling those documents from the public records. (To all those “investors” who think they can reverse-engineer what I do … shake my head … you’re wrong, and if you try, you’ll learn the hard way.)
So it’s your call, banksters. More mortgage eliminators? More appeals? Or you ready to reach some reasonable business decisions and avoid uncertain outcomes in more “one of a kind” fact patterns where I can eliminate your first mortgages? 🙂
Earlier this month, the Fifth District issued a decision in favor of the banks on a paragraph 22 case. The Fifth District’s decision is very short and offers little insight on why the court ruled how it did. Nonetheless, banksters are trying to go behind the content of the decision to apply it in a much broader way than the Court ruled. That entire concept is wrong. Earlier today, I had occasion to explain how appellate case precedent works in this context to a local judge. Then I realized that if this judge (a very bright scholar) was unaware of this line of cases then most lawyers and judges in foreclosure-world probably are, too (making this concept blog-worthy. So here goes).
The entire sum and substance of the Fifth District’s recent decision on paragraph 22 is as follows:
Astoria Federal Savings and Loan Association appeals the summary judgment rendered by the trial court in favor of Danielle Kaufman in this mortgage foreclosure case. The basis for the summary judgment was the trial court’s determination that Astoria did not comply with the notice of default requirement of paragraph 22 of the mortgage, which required that Astoria give Kaufman notice of the default and inform her of the steps she could take to cure the default. Astoria argues that the summary judgment should be reversed because the record reflects that it did send notice in compliance with paragraph 22 of the mortgage. Our review of the record reveals that Astoria is correct and that the notice that it provided to Kaufman was in compliance with paragraph 22. Therefore, we reverse the summary judgment under review and remand to the trial court for further proceedings.
Astoria Fed. Savings and Loan Assn. v. Kaufman, 2015 WL 24109 (Fla. 5th DCA 2015).
Under basic notions of appellate law, Astoria can be used as legal authority for other cases only for what that decision says. For instance, if someone wants to argue Astoria supports the argument that a paragraph 22 letter must “comply” instead of “substantially comply” (since the decision says the letter “complied,”) then that would be fine. After all, the opinion says “complied.” However, litigants cannot go to the public record, pull the paragraph 22 letter, and argue that the 5th DCA found that letter complies, so the letter in another case complies, too. As the First District explained in Shaw v. Jain, 914 So. 2d 458, 461 (Fla. 1st DCA 2005). :
Jain relies on Parkerson v. Nanton, 876 So. 2d 1228 (Fla. 1st DCA 2004), a prior decision of this court which he maintains reaches a contrary result on similar facts. However, the opinion in that case contains no recitation of the testimony. A prior opinion has precedential value only to the extent that it is possible to determine from the opinion that the material facts are sufficiently similar. See Cusick v. City of Neptune Beach, 765 So. 2d 175, 177 (Fla. 1st DCA 2000) (citing Forman v. Fla. Land Holding Corp., 102. So. 2d 596 (Fla. 1958)); Adelman Steel Corp. v. Winter, 610 So. 2d 494 (Fla. 1st DCA 1992). Moreover, ‘it is elementary that the holding in an appellate decision is limited to the actual facts recited in the opinion.’ Adams v. Aetna Cas. & Sur. Co., 574 So. 2d 1142, 1153 (Fla. 1st DCA), review dismissed, 581 So. 2d 1307 (Fla. 1991). We may not look beyond the opinion, itself, in our search for the material facts. See Adelman Steel Corp., 610 So. 2d at 502-503 (stating that it impermissible to look to the record in the prior case for purposes of ascertaining the facts). Accordingly, in the absence of any recitation of the facts considered material to the court in Parkerson, we cannot determine whether the facts were sufficiently similar to those with which we are presented. As a result, Parkerson provides no precedent for our consideration.
Similarly, in Adelman, quoted in Shaw, supra, it was “argued by the employers and servicing agents in the cases before us that the record in Perez reveals the internist had not been authorized by the employer and carrier, and thus the Perez opinion should not be read as prohibiting ex parte discussions by the employer and carrier’s representatives with authorized physicians.” 610 So. 2d at 502. The Fifth District “reject[ed] this interpretation of the Perez opinion because it is contrary to the basic rules governing analysis of an opinion to determine its controlling principles.” Id. As the First District explained:
It is impermissible, therefore, to go behind the facts stated in an opinion to find a basis for distinguishing or limiting its intended holding. As Professor Goodhart has stated in his classic law review article on this subject cited in the above quote, ‘The first and most essential step in the determination of the principle of a case is, therefore, to ascertain the material facts on which the judge has based his conclusion.’ 40 Yale L.J. at 169. Explaining the rules for determining which facts are material, the article observes, ‘If there is an opinion which gives the facts, the first point of notice is that we cannot go behind the opinion to show that the facts appear to be different in the record.’ Id. at 170. The article elaborates on the importance of confining the case analysis to the material facts perceived by the authoring judge as discerned from the judge’s discussion of the facts in the opinion, and concludes that while many facts recited may be immaterial, all unrecited facts are immaterial to the decision
The Second District’s decision in Jaylene, Inc. v. Moots, 995 So. 2d 566 (Fla. 2d DCA 2008), sets forth this same principle of law. In that case, the Second District ruled:
McKibbon does not compel a different result here. The McKibbon case is controlling only to the extent that it is possible to determine from the court’s opinion that the power of attorney at issue in that case was similar to the POA held by Ms. Moots. SeeShaw v. Jain, 914 So. 2d 458, 461 (Fla. 1st DCA 2005). But the opinion in McKibbon does not set forth the language of the power of attorney under review in that case. Thus, McKibbon is not controlling here …
Under this line of cases, banksters in foreclosure cases are prohibited from showing judges what the letter in Astoria may have said. Make sure you call out the banksters when they try to get away with this (which they will). I know I will, and I’m confident the good judges in Florida won’t let them get away with it. 🙂
I’ve blogged about Fla. Stat. 559.715 in the mortgage foreclosure context many times now. I recently had two appeals on the issue, and Florida’s Second District Court of Appeal ruled in my favor on both, but it did so without issuing a written opinion. As a result, even though I’m up to 41 different circuit court judges who have dismissed at least one case based on 559.715 non-compliance, there remains no published case law on the issue. It’s time for that to change.
Here’s my latest appellate brief on Fla. Stat. 559.715 in the mortgage foreclosure context. It’s the best work I’ve ever done on the issue. (Like anything, I suppose, the more I practice it, the better I get.)
The way I present this argument, showing how 41 judges have agreed with me, one could say this brief is a culmination of years of time and work on this issue. Years.
There’s risk here. We could lose. In theory, the appellate court could rule 559.715 is not a defense. But I think I’m right, and it’s time to swing for the fences. Let’s hope we knock this one out of the park, friends. 🙂
Thank you to everyone who helped us get to this point. In particular, I must thank all of my colleagues – from both sides of the table, actually – who shared ideas on this topic over the years (you know who you are) and all the judges who have patiently listened to these arguments.
Remember those three appeals I blogged about last month, the ones where I posted videos of my Oral Arguments before the Second District? All three had significant, cutting-edge arguments, particularly the two that dealt with face-to-face counseling in an FHA mortgage and Fla. Stat. 559.715. Anyway, I won all three appeals. Though the Second District decided not to issue a written opinion in any of the cases, the victory sure doesn’t hurt our chances of a favorable published decision in the near future.
Meanwhile, the banksters filed another appeal on one of my summary judgment wins, this one on paragraph 22 and Fla. Stat. 559.715. Here’s the banksters’ Initial Brief, and here’s the Answer Brief that I filed in opposition.
Silly banksters. Don’t they realize they’re not going to win an appeal on this type of fact pattern?
After reading hundreds of letters for my free house give-away and narrowing them down to these five finalists, I met all five in person. I knew they were worthy candidates going in, but after spending time with all five, amazing families, choosing one winner was one of the hardest decisions of my life. How does one decide who has it worst as between brain cancer, cystic fibrosis, cerebral palsy, and myasthenia gravis, particularly when all five families are so gracious?
Fortunately, the five finalists agreed they’d collaborate to raise $20,000 for Mr. Strong Foundation, a non-profit which pays for therapies not otherwise covered by insurance for qualified, special needs children. That $20,000 will match the $20,000 given by Stopa Law Firm to the four finalists who didn’t win – $5,000 to each. Yes, that wasn’t part of the plan initially, but I just couldn’t bear the thought of any of those families going home empty-handed. 🙂
Here’s NBC’s story announcing the winner. I truly hope the media coverage inspires others to follow this path and help some of the others who wrote me … and, in fact, I’m told that a group of doctors intends to do just that. 🙂
This has been an amazing, life-changing adventure. In fact, I hope to do it again some day. That might sound crazy, but as Steve Jobs would say, “the ones who are crazy enough to think they can change the world are the ones who do.”
Unless and until the next give-away, that’s what I’ll keep trying to do – change the world, one case/family at a time. 🙂