Posted on May 23rd, 2013 by Mark Stopa
This is a real motion that actually exists in a pending case. It’s not my file – my staff just happened across it today.
Read the motion and tell me – who wins? You be the judge. Should a party who was ordered to pay sanctions to his opponent in court be permitted to pay … in pennies? Should the party receiving the pennies be able to force the sanctions to be paid in some other denomination? That’s what the motion is seeking to accomplish.
Check out the photos attached to the motion – yes, it’s piles and piles of pennies.
I realize this isn’t foreclosure related, but we all need a laugh every so often. I doubt the judge is laughing, though.
Mark Stopa
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Posted on May 22nd, 2013 by Mark Stopa
I had a fascinating hearing recently, one that left me asking “What is a judge’s job?” First, a little background …
I was not counsel for this homeowner at trial, but she had a great defense. She argued the bank lacked standing when it filed the lawsuit, as it did not have possession of the original Note at the inception of the case. See McLean v. J.P. Morgan Chase Bank, N.A., 79 So. 3d 170 (Fla. 4th DCA 2012). Lots of homeowners make that argument, but the facts here were particularly good. After all, the argument in this case did not turn on whether the bank’s witness was credible or what the business records may have shown. Rather, it was undisputed that the original note was sitting in a court file in a totally different case filed by a totally different plaintiff for six months after this bank filed its lawsuit.
Follow the timeline. Bank A filed suit in 2008, the case was dismissed, and the original Note was returned to that plaintiff on August 31, 2010. Bank B filed suit in March of 2010. Do you think Bank B had possession of the original Note in March of 2010 when the Note was sitting in the court file? I sure don’t. It’s necessarily impossible to be the “holder” when you lack possession of the original Note. See Fla. Stat. 671.201(21) (defining “holder” as one in possession of an original, endorsed note).
In my opinion, this argument should have prompted a dismissal of the case, but the judge entered a Final Judgment for the bank. I entered the case and asked for a stay pending appeal. I thought that motion was well-taken. After all, the judge herself had said (at trial) that my client’s position was a good argument, so why should a foreclosure sale take place before she could pursue an appeal?
Unfortunately, the judge denied the stay and set the first available sale date.
I was surprised, so I pushed the judge to explain her ruling. The explanation surprised me. Here’s what the transcript reflects (starting on page 16):
Mr. Stopa: Judge, you acknowledged yourself, on multiple occasions, on the record, that, you know — Initially, you had multiple times where you said you were ruling for the defendant, and then you said if you didn’t, it would be reversed. I’m not arguing with you, but my point is that I think there are legitimate grounds to go to the Appellate Court, and before my client is divested of the property and a third party purchaser tries to buy it and, potentially, take possession, ultimately to potentially be removed, then a stay should be entered so that we can pursue our right on an appeal. We’d be happy to have a condition in the stay being that my client will continue to maintain the property, as she has. There won’t be any harm to the bank, if we were to lose the appeal. It simply will have the foreclosure sale rescheduled, once the appeal is over. The collateral is not going anywhere. So I think a stay is a fair result here, under the circumstances, so that we can pursue an appeal on these issues.
The Court: You’re welcome to do that.
Mr. Stopa: Can I submit you an Order that grants a stay?
The Court: No. Your stay is denied. …
Mr. Stopa: On the issue of stay, can I ask for an explanation, or what have you, because, you know –
The Court: My job is to move cases.
Mr. Stopa: I’m sorry?
The Court: My job is to move cases and that’s what I’m doing.
Mr. Stopa: Okay, and you moved the case by entering a judgment. A stay doesn’t stop you from moving the case, because the judgment will have been entered. It won’t appear as a pending case on the docket, but it allows us to pursue an appeal.
The Court: May 29.
Mr. Stopa: Why are we having a sale date scheduled so quickly? Can’t we get –
The Court: Because if you practiced in front of me in this division, you will have known that 35 days is the most I give, unless there’s extenuating circumstances.
Mr. Stopa: I think the extenuating circumstances here are that we have the issue of the note in the other file, which I know you didn’t agree with, ultimately, and the amount issue. I mean, Judge, those are two very legitimate things to be appealing about. So I think — Think about it from a third party perspective. Do we really want a third party purchaser to buy this house, when we have an appeal pending, then they would be divested, when they have done nothing wrong? That’s the point of a stay, is it prevents harm to third parties, as well as these parties.
The Court: Okay. I’ve ruled. …
I realize the judge wears the robe, and it’s not my place to criticize. That said, I’m bothered by the judge’s statement that her “job is to move cases.” Listening to that really made me ponder …
What is a judge’s job?
Here’s how Wikipedia defines a judge. And with respect to this judge, I note the definition does not include “moving cases.”
A judge is an official who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open court. The judge hears all the witnesses and any other evidence presented by the parties of the case, assesses the credibility and arguments of the parties, and then issues a ruling on the matter at hand based on his or her interpretation of the law and his or her own personal judgment.
These are tough times for our judiciary. There’s a backlog of cases, and all judges face pressure from many angles to eliminate the backlog. I sincerely hope, however, that all judges don’t allow these pressures to distort their perspective on what a judge’s “job” is.
Mark Stopa
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Posted on May 22nd, 2013 by Mark Stopa
On March 13, 2013, I posted this blog, where I voiced my concern about portions of the Second District’s ruling in Deutsche Bank v. Prevratil, a case in which I was not counsel that the Second District ruled upon a few days earlier. That was the case, you may recall, where the Second District ruled that an entity other than the Plaintiff could verify a mortgage foreclosure complaint under Rule 1.110(b) in some circumstances. My concerns with the opinion were twofold: (1) the court’s statement that a foreclosure plaintiff was “likely” to prevail merely by filing suit, and (2) the lack of discussion about Fla. Stat. 709.2105, which requires a power of attorney to be a natural person or a financial institution with trust powers.
This is the opinion the Second District issued at the time, and this was the Motion for Leave to File Amicus and Motion for Rehearing that I filed in the Second District in response, explaining my two concerns.
Today, the Second District quashed its initial decision in Prevratil and issued this revised opinion. Wow. We won! On a case I wasn’t even counsel!
Although the opinion makes no mention of me or my amicus, the Second District addressed both of the issues I raised in my motion, changing its initial ruling!
The first change is a fantastic one. Now, instead of saying a foreclosure plaintiff is “likely” to prevail merely by filing suit, the Prevratil decision says a foreclosure plaintiff “could” prevail. Beautiful. That’s exactly right. Foreclosure plaintiffs aren’t “likely” to prevail by filing suit – they “could” prevail. Major kudos to the Second District for clarifying that point on rehearing. For reasons I will explain in a future blog, that distinction might make an enormous difference in how foreclosure cases are litigated throughout Florida. Yes, that was a ground-breaking change, even if nobody realizes why just yet.
The second change is more subtle. In its revised opinion, the Second District provides four footnotes which explain why the court relied upon versions of the statutes in effect at the time. This was my second concern in the motion, to wonder why the court did not mention Fla. Stat. 709.2105, which requires a power of attorney to be a natural person or a financial institution with trust powers, and to invite the Second District to explain why the statute did not apply. These footnotes answer that question. The POA statutes were revised in October of 2011. The Prevratil complaint was filed before those statutes came into effect, so the court relied on the prior version of the statutes. However, for any lawsuits filed after October of 2011, the requirements of Fla. Stat. 709.2015 would be in effect. That means, to be a valid power of attorney and sign a verification under Rule 1.110(b) on any complaints filed after October of 2011, the person/company verifying must be a natural person or a financial institution with trust powers.
This was a fight that, candidly, I wasn’t sure I could win. Suffice it to say I’m elated to help change the law on these two issues, even if my motion wasn’t mentioned in the opinion.
Mark Stopa
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Posted on May 20th, 2013 by Mark Stopa
We use the term “homeless” a lot in the foreclosure industry but that has a whole new meaning after today’s events in Oklahoma. Heart-wrenching.
Stopa Law Firm will donate $100 to that relief effort for every client who signs up with my firm between now and the end of May.
Lets help that relief effort. Spread the word.
Mark Stopa
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Posted on May 17th, 2013 by Mark Stopa
I’m sad as I write this. Today, Florida’s Fifth District Court of Appeal issued a written opinion in a foreclosure case that affirmed a Final Judgment of Foreclosure. I’m sad because it didn’t have to be this way. It shouldn’t have been this way.
Here are the unfortunate facts …
A bank filed suit for mortgage foreclosure against a homeowner, who retained KEL Attorneys as counsel. The bank set a hearing on its motion for summary judgment, as often happens in these cases. When KEL Attorneys did not attend the hearing, the court entered a Final Judgment of Foreclosure without opposition. KEL moved to vacate that judgment, asserting it acted with “excusable neglect” by not attending the hearing, having inadvertently failed to calendar it. The court denied that motion, so KEL appealed.
At that point, KEL had a pretty good chance of winning on appeal in the Fifth District. After all, there are many cases which hold it is excusable neglect to not attend a hearing where the hearing was inadvertently not calendared. To the surprise and dismay of the Fifth District, however, KEL did not frame the issue on appeal in this manner in its Initial Brief. Instead, KEL asserted that it received no notice of the hearing. In its Answer Brief, the bank showed that was plainly not true. By its own admission, KEL had received notice of the hearing – it just failed to calendar it and failed to attend. KEL tried to fix the problem, and set forth the issue correctly in its Reply Brief, but by that point it was too late. When an issue is not raised in the Initial Brief in an appeal, it is waived.
On these facts, the Fifth District issued this opinion, which included an Order to Show Cause why KEL Attorneys should not be sanctioned.
The saddest part, meanwhile, is the innocent homeowner who lost this appeal – the foreclosure judgment on her home being affirmed – to no fault of her own.
I’m not going to disparage KEL Attorneys. That’s not ethical, and it’s not my place. That said, this opinion is a great illustration of how a homeowner’s choice of counsel can make a huge difference. Choose wisely, folks.
Mark Stopa
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Posted on May 14th, 2013 by Mark Stopa
First, the usual caveat. Representing yourself in a foreclosure case is probably not a good idea. After all, pro se homeowners often don’t know the correct procedural ways to bring their arguments. And if you don’t bring your arguments in the correct fashion, you may waive them forever.
Ok, I know. You’ve heard that before. Yada, yada, yada. Let’s get to the story.
In Hillsborough County Case No. 10-CA-20354, Bank of America declared a homeowner in default, then sued for foreclosure. The homeowner represented himself in court, arguing, essentially, that he was not in default and that BOA had applied payments to his account improperly. The issue? In 2005, the homeowner made a lump-sum payment of $22,000, intending that this sum be applied against future recurring monthly payments. But Bank of America didn’t apply the payments that way. Instead, BOA applied the $22,000 payment towards principal, then later asserted the homeowner was in default for not making normal monthly payments.
The issue before Hillsborough Judge William Levens was a narrow one. Was the homeowner in default, or did Bank of America apply the payments incorrectly and wrongly declare him in default? Judge Levens ruled in favor of the homeowner, dismissing the foreclosure lawsuit. Also, remember my recent blog on bank-induced default, where I explained that when a bank wrongly declares a homeowner in default, the remedy is to reinstate the loan, eliminating all default interest, late charges, and interest since the bank improperly declared the default? That’s the same thing Judge Levens did here, directing the “debt be recalculated” and the “resulting/remaining loan balance [be returned] to the contracted-for monthly payment amount.”
Bank of America didn’t like this result, so it appealed to Florida’s Second District Court of Appeal. In March, the Second District issued a PCA, affirming Judge Levens ruling. You might not have noticed that ruling, but that’s only because the Second District did not see the need to explain itself. Yes, the pro se homeowner wins and Bank of America loses.
Please remember the concept of bank-induced default. It might not apply in every case, but the remedy when it does – dismissing the foreclosure case and reinstating the loan to the point in time before the default – is a good one.
Mark Stopa
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Posted on May 9th, 2013 by Mark Stopa
The Florida Supreme Court just issued this opinion, which amended Fla.R.Civ.P. 1.490 to authorize the use of magistrates (i.e. lawyers who are not judges) to preside over foreclosure hearings. This sounds like a big change in foreclosure-world, and in some ways I suppose it is. The prospect of a non-judge deciding a mortgage foreclosure case is certainly a big change for many consumers.
However, if anyone does not like the prospect of their foreclosure case being decided by a non-judge, all they have to do is interpose an objection. Under the new version of Fla.R.Civ.P. 1.490, if an objection is filed within 10 days after the Order of Referral to Magistrate is entered, then the case is heard like the judge, like normal. The “objection” need not have legal grounds, either. The homeowner can simply say “I prefer the case to be heard by a judge,” and that’s what will happen. Conversely, the homeowner can not object, choosing to let the case be heard by the magistrate, and if the plaintiff does not object, either, then a magistrate may adjudicate the case.
Essentially, the purpose of the Rule is to allow non-judges to adjudicate those cases where homeowners don’t care enough to defend the case (or, hence, to object to the magistrate). It’s a way to help the courts through a backlog of cases.
The Court issued this opinion rather suddenly. As a result, it welcomed the opportunity for anyone to submit a comment in response to the new Rule. I see a problem with the Rule, as drafted, so I took the opportunity to draft a written comment, interposing my concern and suggested change. Yes, I filed a Comment in the Florida Supreme Court, suggesting a change to the Rules. Pretty cool. Here it is: Stopa Comment to Rule 1.490.
Mark Stopa
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Posted on May 7th, 2013 by Mark Stopa
I had a foreclosure trial today. Ho, hum, right? Just another foreclosure trial? Well, this case was filed in 2010, and I was just retained in the case a few days ago. As a result, there wasn’t time for me to do anything except file a Notice of Appearance and attend the trial. You might wonder …
Can a foreclosure defense lawyer really help when retained right before trial?
Without filing any paperwork?
Why yes! Yes I can!
This is far from ideal, don’t get me wrong. If I’m retained at the outset of a foreclosure case, I can file the homeowner’s pleadings and ensure all defenses are preserved. By waiting to retain counsel, many homeowners waive defenses by not asserting them soon enough. That said, it’s certainly possible to defend a case at trial, even when retained at the last minute. How can that be? Simple. Bank incompetence is pervasive in foreclosure cases.
We all know banks and their lawyers often fail to file the required paperwork. There’s more to it than that. You see, if you haven’t been putting up a big fight in your foreclosure case, and the case gets set for trial, then the plaintiff will probably treat the trial as an “uncontested” case. That means they’ve prepared for trial (I use the term “prepared” very loosely here) as if nobody is going to attend trial in opposition. When somebody shows up, it throws a big wrench in their plans. It’s like going to a sporting event expecting the opposing team was going to forfeit because they didn’t have enough players, then realizing not only is the opposing team at the game, but they’ve recruited a handful of athletes who are bigger, faster, and stronger than anyone on your team.
I’m going to save the specific argument that I made as trial began. (Some things have to stay a secret from the evil banksters and their lawyers (who, yes, read this blog)). Suffice it to say that just a few minutes into trial, the issue was no longer whether a foreclosure judgment would be entered, but whether the case would be dismissed or the trial continued. Yes, I appeared in the case just a few days ago and filed nothing, yet it was the plaintiff who was begging for a continuance to prevent the case from being dismissed.
After about 30 minutes of argument, the judge decided to continue the trial. While I certainly would have preferred a dismissal, this homeowner went from getting a judgment entered against him (in all probability) to getting the trial continued. Also, the judge agreed the bank’s case was such a mess that a new trial date wasn’t even scheduled, and the homeowner can continue living in the house in the meantime.
Foreclosure trials won’t always happen this way, of course. Sometimes, if you wait to hire a foreclosure defense attorney until right before trial, you’re going to lose. Sometimes, the failure to plead the necessary defenses makes it impossible for a homeowner to win, no matter how unprepared/sloppy the banks are. Many times, however, hiring counsel, even at the last minute, can prevent foreclosure.
Mark Stopa
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Posted on May 6th, 2013 by Mark Stopa
Back in 2011, I posted this blog, encouraging homeowners to stay current on their association dues. That’s even more important now.
You see, under the new legislation just passed in Florida, an association can request an expedited foreclosure hearing to try to accelerate the bank’s foreclosure case. If you’re current on your association dues, the association probably won’t feel a reason to make this request. If you’re behind on those payments, however, you run the risk that the association will cause that hearing to be set. Just think about it from the association’s perspective. If you’re paying your dues and taking care of the house, they probably don’t care if the house is in foreclosure. If you’re not paying your dues, however, then the association likely prefers that you get foreclosed so a new owner – who pays his dues – will get put in the house.
Don’t let a rather nominal association payment cause you problems on your mortgage foreclosure case. Pay those dues!
Mark Stopa
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Posted on May 6th, 2013 by Mark Stopa
You probably know by now that HB87 passed in the House and the Senate and will become law unless Governor Rick Scott vetoes it, which is not expected. This legislation changes the landscape of foreclosure defense in some significant ways. Let’s summarize (bearing in mind that this is purely a summary and there’s no substitute for knowing the precise language of the new bill or, better yet, hiring an experienced lawyer who does):
1. Finality of Judgment: Once a final judgment is entered in a mortgage foreclosure case, the property is sold to a third-party, and the appeal time has run, the mortgagor is precluded from getting title to the property back, even if the foreclosure was wrongful. Instead of being able to ask for the judgment to be vacated under Fla.R.Civ.P. 1.540 up to a year after the judgment was entered – or, in some circumstances, many years post-judgment - the homeowner’s remedy is now limited to claims for money damages.
For obvious reasons, the title insurance industry was the driving force behind this aspect of the bill. After all, if homeowners can’t make claims to get their foreclosed properties back, that’s a green light for title insurance companies to issue title insurance policies without fear of paying out claims.
2. Order to Show Cause: Expedited Foreclosure: Any lienholder (to include condo associations and homeowners’ associations) can ask the Court to issue an Order to show cause, forcing the homeowner to come to court and convince the Court not to enter an expedited foreclosure judgment. If the homeowner doesn’t file the appropriate paperwork/defenses, a foreclosure judgment is entered at that hearing. This sounds bad, but it’s similar to the existing version of Fla. Stat. 702.10, except it now enables any lienholder (as opposed to just the bank) to request the show cause hearing.
The condo and homeowners’ associations were the driving force behind this aspect of the bill. They believe this will give them leverage to accelerate the mortgage foreclosure lawsuit when the bank is slow to prosecute the case. Are they right? My thoughts are below.
3. Order to Show Cause: Monthly Mortgage Payments: If a residential property is not owner-occupied, the plaintiff can ask the court to require the mortgagor to make normal monthly mortgage payments to the plaintiff during the foreclosure case. If those payments are not made, then the mortgagor is removed from possession of the property even before the case is over. If this happens, the homeowner can still defend the lawsuit, but will be removed from possession before the case is over.
4. Statute of Limitations: On claims for deficiency, reduced to one year.
5. Pleading requirements: The new bill imposed a few new pleading requirements for plaintiffs.
(a) The foreclosure plaintiff must plead it is the “holder” or its specific factual basis to foreclose in its Complaint. This codifies what defense attorneys have been arguing in motions to dismiss for many months – it’s not enough to say you’re entitled to foreclose, you have to plead ultimate facts.
(b) If the plaintiff is suing on behalf of another entity, it must identify the document which sets forth that authority.
(c) The plaintiff must file a certification under oath, upon filing suit, that it possesses the original Note. If the note is lost, it must file an affidavit detailing the chain of assignments/transfers and must attach documents showing how ownership was acquired.
My thoughts:
I’ll spare you my rants here – of which there are many – about the process in which this bill was enacted and the small handful of people who drove the train. Instead, I’ll share my views on how these issues will play out in everyday practice.
1. Finality of Judgment. I hate this provision, and I think it’s unconstitutional. After all, the Florida Supreme Court has the exclusive authority to create rules of practice and procedure in our courts, and it did so via Fla.R.Civ.P. 1.540. If that rule allows/requires a Final Judgment to be vacated even after the appeal time has lapsed, I don’t think the legislature is authorized to eliminate that Rule. That said, this provision won’t impact very many homeowners. Defend your case from the outset, file an appeal if you lose, and you won’t ever be in the position of having to worry about whether Rule 1.540 applies. Let’s move on.
2. Order to Show Cause: Expedited Foreclosures: On paper, little has changed here. Fla. Stat. 702.10 has been in place for some time now, yet the banks rarely utilize it. On the rare instances they have, I’ve had a lot of success preventing the expedited foreclosure from being granted. Frankly, it’s not too hard, if you know what you’re doing. As a result, I don’t think much will change by allowing lienholders to invoke this procedure.
What irks me is that the backers of this bill have no clue how this change will play out in everyday practice. It may sound great to some to allow a lienholder/association to request an expedited foreclosure hearing. However, suppose that happens, yet the bank doesn’t file the required paperwork for a judgment to be entered. Then what? Bear in mind, this type of thing happens all the time – an association wants a foreclosure case to go faster, but the bank refuses to prosecute the case … so it’s not hard to envision a lienholder/association pushing for an expedited hearing but the bank not filing the necessary paperwork at that hearing. Unfortunately, the statute poses no solution to this problem. The lienholder/association can cause the hearing to be set, and the court will be required to set the hearing, but how can a judgment be entered if the bank doesn’t provide the required paperwork? It can’t. That begs the question – why allow the expedited hearing, forcing the judges and court personnel to do more work and requiring homeowners to defend the expedited procedure, if there is no mechanism for making sure the required paperwork is filed?
I tried to address these concerns with the legislature. In fact, I drafted a proposed amendment to the bill which would have allowed the foreclosure case to be dismissed without prejudice if the show cause hearing was set and the bank didn’t file the required paperwork. Was that included in the final version? Of course not. As a result, I fear we are looking at many hearings where the association wants a case to go forward, but it cannot because the bank doesn’t file what it needs to file … a sad irony when the purpose of the bill was to make things easier for the courts.
3. Order to Show Cause: Monthly Mortgage Payments: Substantively, this is the biggest change. If you don’t live in your property, and you’re the mortgagor, the bank can force you to make monthly mortgage payments during the pendency of the case, failing which you lose possession of the property.
A couple of things are infuriating about this aspect of the bill. First, do you notice how the homeowner is required to make monthly mortgage payments to the plaintiff even before the case is over, yet there is nothing in the statute which requires those payments to be given back to the homeowner in the event the homeowner prevails at the end of the case? Suppose, for example, a homeowner makes 12 monthly payments of $2,000 per month, then, at trial, proves the bank lacked standing to foreclose. Shouldn’t the homeowner get his $24,000 back? Of course! Incredibly, however, this brilliant piece of legislation is silent on this issue. Seriously, Legislature? The wrong plaintiff can sue, collect monthly payments, and not be obligated to return those payments upon losing the case?
The sheer idiocacy of this aspect of the bill is obvious by comparing it to the tenant eviction statutes. If a tenant makes monthly rent payments into the court registry, then ultimately prevails against the landlord, the court orders that the money in the registry be returned to the tenant. Here, conversely, there is no mechanism in the statute for the homeowner to get his/her money back, even upon prevailing. The money isn’t held in the registry – it’s paid directly to the plaintiff, and there’s nothing which says the plaintiff has to pay the money back. I guess the legislature was too arrogant, shortsighted, or ignorant to realize a homeowner could win a foreclosure case at trial. Sigh.
Second, it’s an awful irony that the associations were supposedly the impetus behind this aspect of the bill, yet they don’t realize they were shooting themselves in the foot by creating it. Just think about the dynamics at play here. If the homeowner doesn’t live in the house but is paying association dues, the dues are likely being paid with rent monies. That’s how it works – homeowners rent out the property and pay HOAs with that rent. If that rental stream gets taken away from the homeowner, do you think there’s a chance in hell he/she is going to keep paying the association? I don’t. And the banks sure aren’t going to pay those associations, as their obligations to the associations are limited by statute. So what will result here? Unpaid associations and more vacant/dilapidated houses. Brilliant! Just brilliant.
My plea:
There are a variety of reasons why this new legislation is probably unconstitutional. I touched on one or two of them above. However, I strongly urge all pro se homeowners to avoid making such arguments. Please. Don’t do it.
Look … I’ve shared a lot of information on this website. I hope it goes without saying that I want to help everyone involved in this fight. This issue, however, is too big for any one homeowner to take on themselves. The problem, of course, is that if the wrong person is making this argument without knowing all of the legal arguments to make and/or how to make them, it can result in an appellate decision that is damaging for everyone. Please, folks – don’t ruin this for everyone. Let the handful of foreclosure defense lawyers who know what they’re doing work with some lawyers with experience arguing constitutional issues. We know what arguments to make and how to make them try to get this legislation declared unconstitutional. You don’t. This is a big fight, and we can win, but we have to go about the fight the right way.
Mark Stopa
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