Archive for February, 2016

“Equity” in Foreclosure Cases

On February 5, 2016, Florida’s Second District issued a written decision in Corrigan v. Bank of America.  The decision can safely be described as one of the highlights of my legal career.  🙂  So why on Earth am I moving for rehearing?  Well, read on …

First off, what is most notable about the Corrigan decision is how the Second District ruled en banc.  You see, most appeals are adjudicated by a three-judge panel. Here, by contrast, all 16 judges on the Second District joined in the decision, and all 16 judges agreed with my argument that the trial court erred by entering a foreclosure judgment where the lender failed to prove standing at the inception of its lawsuit.  Where all 16 judges agreed, Corrigan is a wonderful illustration of the law on this issue, at least in Florida, and I’ll be using it to my advantage in many future cases.

So … With a win like this in hand, why have I been spending much of the past two weeks drafting a Motion for Rehearing?  Well, I’m a bit troubled by the content of the second concurring opinion.  In it, 3 of the 16 judges explain, in essence, how they ruled in my favor because the law required that they do so, but if it were up to them, they would not have done so because they did not believe this result to be “equitable.”  In assessing the “equities” of the case, these judges note how Corrigans hadn’t paid their mortgage, but don’t set forth any “equities” favoring Corrigans.  The concurring opinion goes on to assert that the law should be changed, based on these judges’ perception of what is “equitable,” such that foreclosing lenders need not prove standing at the inception of a lawsuit.

After much thought and deliberation, I saw this as a unique opportunity to file this Motion for Rehearing.  This one is a doozy, folks.  It’s much of what I have always wanted to say in foreclosure-world but hadn’t had the forum to do so.  With this decision being made en banc, I now have that chance.

My motion for rehearing squarely addresses the concept of “equity” in foreclosure cases.  I talk about clients who are elderly or handicapped.  I discuss securitization, dual-tracking, and bank-induced default.  I explore the extent to which fairness should be part of the decision-making process in foreclosure cases (it shouldn’t be) and question the extent to which subjective notions of equity have become justification to change the law in favor of lenders in a variety of contexts.

The next time a bankster lawyer or a judge asserts foreclosure is an action in “equity,” as if that allows the judge to decide the case partly based on some nebulous, subjective notion of fairness, remember my Motion for Rehearing in Corrigan.  Remember how the Florida Supreme Court has explained that foreclosure cases cannot based on a judge’s subjective perception of equity.  Remind the court that foreclosure may be an action in “equity,” but that means only that the plaintiff did not sue for money relief so there is no attendant right to trial by jury – not that the judge can subjectively decide what he/she thinks is fair.  The judge wouldn’t inject fairness into the proceeding where the homeowner is sick, elderly, or handicapped, so it should not be a basis to rule for lenders merely because the homeowner hadn’t paid his/her mortgage.

Years from now, after the foreclosure crisis has long since ended, this Motion for Rehearing is how I’d like to be remembered.  This is my legacy.  I didn’t always win, but I did everything possible to convince judges to leave their biases by the wayside and follow the law.


Mark Stopa

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