Over the course of the past few years, I’ve litigated cases in a way that most lawyers rarely get to do. You see, in most areas of law (personal injury, criminal law, etc.), the law is so well-established that when lawyers cite case law, they do so by referencing published appellate decisions that have existed for many years. That’s how legal arguments are made in most areas of law – by citing published decisions from appellate courts.
In foreclosure-world, though, issues like application of Fla. Stat. 559.715, face-to-face counseling in an FHA Mortgage, and paragraph 22 in a Fannie Mae mortgage are novel. Often, there are no published, appellate decisions. So what does a lawyer do in that circumstance? Well, that’s when the fun begins. 🙂
When there is no “law” on an issue, i.e. no published appellate decisions, I try to convince trial judges on what the law is/should be. How? Well, having done this many hundreds of times over the past few years, I’ve learned the rulings of other trial judges can be persuasive. Yes, such rulings are not binding, and, frankly, judges can differ significantly on the extent to which they consider rulings of other trial judges. That said, rulings of other trial judges can be persuasive – particularly when you stack them up, and especially when there are no published, appellate decisions.
(And talk about fun – trying to convince a judge to rule on an issue for which there are no published appellate cases? OK, I admit, I’m a dork.)
By way of example, how’s this sound? “Judge, there are no Florida appellate decisions saying Fla. Stat. 559.715 is a condition precedent to mortgage foreclosure, but 44 different trial judges have agreed with me on this issue – that’s hundreds of dismissals on this basis without one reversal on appeal.”
44 judges. Hundreds of wins. There may be no published case law from appellate courts, but that’s pretty persuasive, no?
The banksters, as you can imagine, hate this. Over the years, I’ve seen all sorts of tactics to try to stop me from implementing this approach. The banksters’ latest argument is that I’m not allowed to cite trial court rulings and that I should be sanctioned for doing so.
Oh, and get this. The banksters contend I make this argument not to serve my client’s interests, but to brag. The bankster’s actual motion, filed in an appellate court, reads: “”[Mr. Stopa] took it upon himself to compile a couple of dozen random orders … they are meaningless, except to afford him the opportunity to boast and draw attention to himself, rather than to his client’s cause, by tacitly proclaiming ‘look at me, look at how many times I have prevailed on this issue.'”
These banksters just don’t get it. This isn’t about me. This isn’t “look at me, look at how many times I’ve won.” This is “look at these orders, look at how many different judges have agreed with this argument.”
This issue doesn’t come up every day, so instead of getting bogged down in all the nuances, just bear in mind: service of process upon the Secretary of State in lieu of personal service is possible, but there are many, technical requirements such that plaintiffs rarely do it correctly. But like any service defense, you only get one chance to do it right – so don’t sleep on your rights!
Everyone in foreclosure-world knows a foreclosing lender must prove it had standing when it filed suit. Similarly, most agree that failure to comply with the face-to-face counseling requirement in an FHA mortgage requires dismissal. But who bears the burden of proving standing at trial? And who bears the burden of proving the lender gave the counseling required by 24 C.F.R. 203.604 in an FHA Mortgage?
Here’s my Initial Brief in a recent appeal, arguing the bank failed to prove standing and the requisite pre-foreclosure counseling at trial.
The bank’s Answer Brief did not assert it had standing or conducted the counseling, but that the burden of proof was on my clients and that they failed to prove these issues.
Hence, this entire appeal turns on who bears the burden of proof on these issues.
My Reply? The burden of proof was clearly on the bank, so we should win.
On the issue of standing, note the 14 cases I cited, all decided within the last year, all of which require dismissal where the bank did not prove standing as part of its case at trial.
Months ago, I explained in detail the basis of my belief that lenders must comply with HUD Regulations before foreclosing on an FHA Mortgage. I even posted this appellate brief, setting forth a ton of case cites supporting my view. I really liked the argument for homeowners at that point, and from what I can tell, the banksters seem to agree. After all, they’ve been flooding my office with phone calls and emails trying to settle any and all appeals where I raise the lender’s failure to provide face-to-face counseling in an FHA Mortgage, as required by paragraph 6 of the Note, paragraph 9 of the Mortgage, and 24 C.F.R. 203.604. From where I’m sitting, the banksters are deathly afraid of an adverse appellate decision on this issue.
After filing that brief, above, a new wrinkle developed in the argument. Is the lender’s failure to give the counseling in an FHA mortgage an affirmative defense (such that the homeowner bears the burden of proof at trial)? Or a condition precedent, such that the lender bears the burden of proof? I think it’s the latter, and I explain why, in great detail, in my most recent appellate brief on this issue. Here, check it out.
What’s my favorite argument in this new brief? What’s the fool-proof, slam-dunk winner? Well, there’s no such thing as a slam-dunk winner in this context, but I really LOVE this argument …
At this point, all Florida courts agree that paragraph 22 of the standard, Fannie Mae mortgage creates a condition precedent to foreclosure (not an affirmative defense, a condition precedent), and that dismissal is required where the notice isn’t given. (Remember my Holt argument There’s a reason I fought so hard for that). Anyway, since Florida courts construe paragraph 22 as a condition precedent, and the requirements in an FHA mortgage are worded so similarly to those in the Fannie Mae mortgage, the counseling required by an FHA Mortgage has to be a condition precedent, just like paragraph 22 is. It just has to be.
I’m extremely confident we’re right about this one, and that’s why the banksters keep barraging me with settlement offers on these files.
So keep fighting your foreclosure suits on FHA Mortgages, folks. The lenders’ failure to conduct the face-to-face counseling required by 24 C.F.R. 203.604 is a great way to defend foreclosure of an FHA Mortgage, and I’m confident the law will continue to evolve in our favor on this issue. 🙂
FWIW, I was comfortable enough with my position that I asked the judges to write a written opinion in my favor (as opposed to simply issuing a PCA, the typical result when the appellate court affirms the lower court).
I recently described a unique fact pattern where I eliminated a first mortgage. I started that blog with a disclaimer, and the same disclaimer applies here. To wit, this was a highly unusual situation, and my posting about it here does not mean it can be replicated. So, please – don’t try; you’re likely to create bad law for all the rest of us.
That said, my last blog didn’t really explain why the bank’s mortgage was eliminated (a result that, in my humble opinion, is unlikely to change by its filing this appeal). Plus, I really enjoyed the finished product that is this Answer Brief.
So … here you go. Notice the unique compilation of facts? Mootness doctrine. Collateral estoppel. Void vs. voidable (and the extent to which title transferring to a third party matters). Successive 1.540 motions. You think you can try that at home? Ha!
My point isn’t to brag. Rather, I want to remind everyone how exceedingly rare this is (as we await the Florida Supreme Court’s ruling on the statute of limitations, of course), while making clear that, when the right set of facts emerges, I’ll pounce on those banksters and eliminate a mortgage any chance I get. 🙂