As if my Corrigan appeal, which I’ve blogged about in the past, weren’t interesting enough already, it’s gotten even more fun (insert dork jokes here). ;).
This is the appeal where I’m arguing the face-to-face counseling requirement of 24 C.F.R. 203.604 is a condition precedent (as opposed to an affirmative defense) to foreclosure in an FHA mortgage, an issue for which there are no published appellate decisions in Florida.
At first, the Bank’s only argument in its Answer Brief was that the burden of proof was on my clients at trial. After I filed a Reply Brief destroying that argument, the Bank backtracked and confessed error. Yes, the Bank acknowledged I should win the appeal on the issue of standing.
Just a few days later, though, the Second District issued its May 8, 2015 decision in AS Lily. That prompted the Bank to backtrack yet again, withdraw its confession of error, and, and file an Amended Answer Brief (over my objection, sigh), arguing it had standing at the time of the Amended Complaint – based solely on that one case (AS Lily) – so that was good enough.
One case that’s so different than all the others on the issue of standing … what do we make of AS Lily, exactly? It’s literally the only case (out of hundreds) which authorizes standing in a foreclosure case as of the time of the Amended Complaint, not the original complaint.
I had to ask the Court for permission to file this brief since it’s so long, but that issue aside, I basically assert AS Lily is wrongly decided, an aberration in the law, and that other decisions, both before that case and after, are controlling. I even try to explain how AS Lily came about (see footnote six), a dicey proposition, perhaps, but lack of guts has never been my problem. 😉
And there it is. An issue of first impression in Florida and an assertion of intradistrict conflict … in the same brief.
And with that, the good guys keep forging ahead, fighting like hell for consumers throughout Florida. 🙂
It was 2008. Stopa Law Firm was little more than me, Mark Stopa, sitting in my house, starting to work on foreclosure cases. At that point, the concept of “foreclosure defense” barely existed. Almost everyone thought homeowners who hadn’t paid their mortgage couldn’t possibly have a defense.
Well … a mortgage is a contract, though, right? That’s what I thought back then, sitting in my house. So I read the contract – the standard, Fannie Mae mortgage, to see what I could find. That’s when I first encountered paragraph 22. Even then, I can remember thinking “Oooh, that’s a condition precedent … this is going to be good.”
In the ensuing seven years, I’ve pushed this issue as hard as I could before anyone who would listen. From advancing the arguments on the ground level – literally, judge by judge – to changing the Holt decision on rehearing as an amicus, the ride has been a blast. We’ve created law. We’ve, literally, changed foreclosures in Florida. Lenders now routinely have to submit the “paragraph 22” letter into evidence at trial. And if the letter does not say what paragraph 22 requires it to say, then dismissal can ensue.
With so many hearings over the years – literally, thousands of hearings – it might seem strange to say my work all came to a head at any one particular hearing, but that’s how I felt on June 9, 2015, when I had an oral argument before the Second District.
Part of what made this argument so interesting was knowing that Judge Altenbernd (one of the most renowned scholars in the history of Florida appellate law) would be on my panel, and Judge Altenbernd (he of the concurring opinion in Focht) is not exactly known for writing consumer-friendly opinions in the foreclosure context.
So I started my argument by addressing the elephant in the room, earning a chuckle from the Court, then got down to the legal merits.
I see Judge Altenbernd authoring a written decision in this case. I could be wrong, of course, but after this oral argument, I feel it coming.
I think we are right here, and I think we’ll win. Hence, I can’t wait for Judge Altenbernd’s decision. 🙂 But win or lose, I know I’ve given everything I have to this issue over and over again, doing my absolute best. Sometimes, all I can do is hope my everything is enough. 🙂
I’ve often discussed the importance of parties preserving the errors about which they complain. In layman’s terms, that means, if you want to bring an appeal (in a foreclosure case or any other type of proceeding), you better be able to show the appellate court you made the specific objection/argument you’re making to it in the trial court below. If you cannot show you preserved the error with a contemporaneous, specific objection, then, generally speaking, you cannot win an appeal – regardless of whether your position would have otherwise been meritorious.
If you don’t frequent appellate circles, you’re likely to underestimate the extent to which this matters. But here, don’t take my word for it – check out this video from my recent oral argument before the Second District.
I haven’t received a ruling yet, but I’m confident a PCA is coming (affirming the lower court’s order dismissing the case without explanation). Just look at the judges. They’re not saying the lower court got it wrong when the Bank can’t even show what it argued to the lower court.
I recently decided to testify as an expert for a bank in a foreclosure case. It was a hard decision, and while the concept certainly disgusts me in some ways, I guess I was more disgusted at the fees being charged by the foreclosure defense lawyer on that file. Anyway, this has stirred up an old debate among colleagues about the reasonableness of fees in foreclosure cases. Some colleagues, frankly, are irate I’m testifying that the fees of any defense lawyer in a foreclosure case are unreasonable. How could you help the banks, Stopa?
They don’t get it. I’m not helping the banks. I’m helping consumers. Fighting to ensure reasonable fees for everyone. You might recall, this is not the first time this debate has arisen. In fact, I wrote blogs about this years ago – here and here, for example – and my stance on this issue has not changed. If anything, years of experience has me more entrenched in these opinions than ever before.
I want to change the industry. I want to win as many cases as possible. I want to help as many consumers as possible. Creating an industry where reasonable fees are charged is a significant step in achieving those ends. And trust me – judges agree. Some colleagues might not understand that, but I’m exceedingly confident judges agree. And since judges are the ones who decide whether to dismiss these cases, I want judges agreeing with me as frequently as possible (particularly when it comes to my motivations behind the work I do). 🙂
This week, I filed briefs in two more appeals. Both included arguments on Fla. Stat. 559.715, and I’ve now officially lost count of how many appeals I have pending with this issue. 🙂
Between all the appeals, all the briefs, and all the opposing law firms, it now feels like STOPA in one corner and THE REST OF THE WORLD in the other! But that’s OK. Everyone likes an underdog. 🙂
Anyway, here’s the Initial Brief I just filed in Florida’s First District Court of Appeal. While this is similar to others I’ve filed on 559.715, there are significant nuances with each case. For example, notice how, on this one, I’m also challenging the bank’s compliance with paragraph 22 based on an evidentiary argument made at trial? (Consider that a word of warning if you’re trying to be your own lawyer by copying these briefs – it’s not possible; the nuances are endless.)
Meanwhile, I have another Oral Argument in the Second District, this one scheduled for Wednesday, June 17, 2015 at 9:30. In this one, I got the case dismissed on summary judgment, and the bank is appealing. I’m defending on three grounds: (1) the bank did not preserve its arguments; (2) paragraph 22; and (3) 559.715. Here are the briefs:
As June, 2015 winds down, we start a time of transition in Florida foreclosure courts. Effective July 1, 2015, the Florida legislature is no longer appropriating special funding towards foreclosure cases in Florida courtrooms. This means, in many counties, the end of senior judges adjudicating foreclosure cases. Procedures will vary from county to county, but elected circuit judges will now adjudicate foreclosure cases in many, if not most, instances.
Though many consumer advocates have lamented the senior judge system, associating senior judges with pejorative terms like “rocket docket,” I’ve had many good experiences with senior judges over the years. In fact, many if not most of the 926 dismissals (and counting!) that I’ve obtained in foreclosure cases have been from senior judges. So, before many of these senior judges retire from foreclosure cases, never to return to the bench, I wanted to take a moment to thank a few of them whose paths I crossed over this time.
This is not an exhaustive list (I’m sure I inadvertently omitted a few), and yes, every one of these judges ruled against me at various times, some of them many times. But my note of appreciation isn’t about winning or losing any particular case, it’s about the feeling I had with each such judge that he/she was trying to rule fairly in my cases and follow the law, not just push me through the system because I was representing homeowners who hadn’t paid their mortgage.
Perhaps most of all, these judges all tolerated ME. As some will tell you, that’s sometimes no simple task. 😉
Without further ado …
Hon. Donald Evans, Tampa: Thorough. Patient. Attentive. The first to ever go with me on Fla. Stat. 559.715 – and the snowball began! Yet even when I lost, I never once felt like it was a result of bias. Happy Retirement, judge. I’ll miss seeing you on the bench.
Hon. Perry Little, Tampa: With his calm, patient demeanor, it’s hard not to leave his courtroom a nicer guy. (Gasp, yes, even me, judge.)
Hon. Sandra Taylor, Tampa: So kind, and a great poker face. One day, judge, after this is all over, you’ll have to tell me how much that Correa decision impacted your rulings on my cases.
Hon. Judy Biebel, Tampa: Covered hearings in Palm Beach, too, and laughed at how the banks were scared of her because she was from Tampa.
Hon. Raul Palomino, Tampa: Any judge I can move to disqualify one day, then argue four hearings the next day like nothing happened … my kind of judge.
Hon. Christine Vogel, Tampa: Never once felt like I got treated unfairly, whether I lost (most Par. 22s) or won (many 559.715s).
Hon. Frank Gomez, Tampa: Openly admitted he doesn’t like my defensive MSJs but still granted them where he thought the law required it. What I’ll always remember, though, was how, whenever a morning docket started, we’d make eye contact and, without a word exchanged, both of us would just start laughing. The fun was about to begin!
Hon. J. Rogers Padgett, Tampa: I loved hearing his stories of how, years ago, nobody would dare defend foreclosure cases – there were no defenses (at least, that’s what everyone thought) … and admitted, as things got started in 2009, that’s what he still thought … but as the arguments evolved, so did his rulings. Loved that. Loved the consistency, too. If I had 6 hearings in a row, it didn’t matter if I won all 6 or lost all 6 – he was going to follow his interpretation of the law.
Hon. David Demers, St. Petersburg: In an age of robo-testimony at trial (yes, I said it, robo-testimony), this judge’s perspective on what it takes to lay a predicate was SO refreshing. Keep teaching law students what a “predicate” means, judge. And yes, I agree, the evidence code isn’t different for foreclosure cases.
Hon. W. Douglas Baird, St. Petersburg: If I can say in open court that I liked you better when you went with me on 559.715, then I guess I can say it here, too. 😉
Hon. Ray E. Ulmer, St. Petersburg: I got pretty good, over the years, at predicting how a judge would rule on a particular hearing. Judge Ulmer, though … his poker face was second to none.
Hon. Marion Fleming, St. Petersburg: I lost a few I thought I should have won, but when you let my trial go until 6:30 pm and then ask about my Dad (who had been hospitalized), you’re OK in my book!
Hon. Carven Angel, Ocala: A connoisseur of the paragraph 22 defect where the letter required additional, unspecified payments after the date of the letter to cure the subject default. I’ll always believe we were right on this one, judge, and nobody has yet to tell us otherwise. 🙂
Hon. Daniel B, Merritt, Sr., Brooksville: Willing to rule contrary to how some of his colleagues in Hernando rule (which might seem common, but an element of “groupthink” definitely permeated the rulings in these cases to some degree). I’ll always respect that.
Hon. Hugh Starnes, Fort Myers: I didn’t get to Fort Myers too often, but it was often enough to feel like I got a fair shake – no matter what others may be saying on the internet.
Hon. James Thompson, Fort Myers: A tough nut to crack on some of my pet arguments, but when you go with me on FHA and find “right to bring a court action” language is insufficient in the Par. 22 context, I know you’re trying to follow the law. That’s all we ask.
Hon. Cecilia Wilhite, Bartow: You respect me enough to refer a lawyer to me for a job … the feeling was mutual, judge.
Hon. John Adams, Orlando: A scholar of the law, I enjoyed the banter we had about defense issues like 559.715. Your encouragement was not unnoticed, judge.
Hon. Emerson Thompson, Orlando: You have case law to support that argument? You better! Love, love, love! Oh, and forcing the bank rep to actually have some legitimate training to lay the predicate for the business records exception to the hearsay rule … such a breath of fresh air.
Hon. Theotis Bronson, Orlando. Interesting take on 559.715. Enjoyed the debates.
Hon. Charles M. Holcomb, Viera: Wish I could have gotten over there more. We’d have had some fun, for sure!
Hon. Nancy Donnellon, Sarasota: No explanation needed. Without saying a word, I’m glad we understand each other now.
If you’re reading this and disagree with my assessment of any particular judge, please bear in mind … it’s not about one ruling in one case. After all, every case has a winner and a loser. It’s about an overall impression developed over a long period of time, many cases, and many hearings. Plus, working to earn the respect of these judges has been a long (and ongoing) process. Trust me, that matters.