Several months ago, I lost a trial in Sarasota that I shouldn’t have lost, so I appealed. Here’s my Initial Brief. I felt like I killed the argument.
So what did the bank say in its Answer Brief? Not much. Basically, they kept arguing that I failed to interpose contemporaneous objections, among other untrue factual assertions. I tell you what … I’m not going to say anything they represented is untrue. Instead, you read the trial transcript and you tell me – do you think I failed to object to anything I’m complaining about in my Initial Brief?
Yeah, I didn’t think so. This Reply Brief should drive that point home pretty well.
I’d anticipate a written opinion reversing the Final Judgment from Florida’s Second District Court of Appeal in about 9-12 months.
Meanwhile, just today, Florida’s Fifth District Court of Appeal issued this decision, reversing an Order denying a Motion to Quash Service because the lower court denied the motion without having conducted an evidentiary hearing.
I think my favorite part about that decision is how three appellate judges followed the law even though many would say it was terribly inequitable to do so (my client was an investor, not the borrower, and was alleged to have evaded service of process).
Appeals are hard, especially in foreclosure-world. Slowly but surely, though, I feel like we’re making headway in the appellate courts.
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Earlier this week, I posted my Motion for Rehearing as Amicus in Holt v. Calchas, LLC, Case No. 4D13-2101 (Fla. 4th DCA 2014).
Kristy Holt (via her counsel) has now moved for rehearing, and the first thing she did upon doing so was to adopt and incorporate my motion into her Motion for Re-Hearing. 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 love when colleagues can collaborate on big issues like this, particularly since Holt’s counsel, Philippe Symonovicz, and I have never met. We’ve got an industry to protect, and we’re going to protect it!
Anyway, I’m supremely confident I’m right about this one. It’s your move, Fourth DCA.
Let’s hope we see a revised opinion here, but even if we don’t, I’m confident the other DCAs (and the circuit court judges within them) will continue to correctly apply paragraph 22 and will not follow Holt. See Samaroo v. Wells Fargo Bank, 137 So. 3d 1127 (Fla. 5th DCA 2014); Dominko v. Wells Fargo Bank, 102 So. 3d 696 (Fla. 4th DCA 2012); Zervas v. Wells Fargo Bank, 93 So. 3d 453 (Fla. 2d DCA 2012); Laurencio v. Deutsche Bank Nat’l Trust Co., 65 So. 3d 1190 (Fla. 2d DCA 2011); Konsulian v. Busey Bank, N.A., 61 So. 3d 1283 (Fla. 2d DCA 2011) (repeatedly characterizing the paragraph 22 notice as a “condition precedent to foreclosure”); Frost v. Regions Bank, 15 So. 3d 905 (Fla. 4th DCA 2009).
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David Stern was a notorious foreclosure lawyer. For years, he ran a fraud factory for banks, foreclosing on homeowners by the thousands (often through nefarious means), ultimately resulting in his disbarment.
Today, though, one fortunate homeowner is thanking David Stern for his shenanigans. Let’s call it some overdue karma.
Here’s the fun fact pattern.
I had a trial in Tampa. I had virtually no basis upon which to defend the case. The bank was the original lender, so there were no standing defenses. The paragraph 22 letter was pretty well drafted, and this judge had already deemed it sufficient. And this bank was a credit union, so the witnesses it brought to trial were personally involved in the transactions in question.
This combination of facts – original lender, good paragraph 22 letter, and competent bank witnesses at trial – is rare in foreclosure-world. That’s why I lost every evidentiary objection during trial – another rarity. But when it came time for the bank to prove its lost note count, there were problems. You see, even though the bank was the original lender, when it filed suit in 2010, it mailed the original Note to David Stern. The bank’s own documents, introduced into evidence, reflected that the Note had been mailed to Stern, and the bank didn’t have the original Note at trial.
On cross, I got the bank’s witness to concede that it never asked for the Note back from David Stern, never sued him to recover the Note, never tried to serve him with process, etc. Essentially, the Note wasn’t “lost” – it was in the possession of the bank’s own lawyer.
(Do you and I know Stern was disbarred? Sure. But this is a trial, and that’s the type of thing which requires evidence.)
Anyway, take a look at Fla. Stat. 673.3091, the statute which sets forth the elements to re-establish a lost note:
673.3091 Enforcement of lost, destroyed, or stolen instrument.—
(1) A person not in possession of an instrument is entitled to enforce the instrument if:
(a) The person seeking to enforce the instrument was entitled to enforce the instrument when loss of possession occurred, or has directly or indirectly acquired ownership of the instrument from a person who was entitled to enforce the instrument when loss of possession occurred;
(b) The loss of possession was not the result of a transfer by the person or a lawful seizure; and
(c) The person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process.
(2) A person seeking enforcement of an instrument under subsection (1) must prove the terms of the instrument and the person’s right to enforce the instrument. If that proof is made, s. 673.3081 applies to the case as if the person seeking enforcement had produced the instrument. The court may not enter judgment in favor of the person seeking enforcement unless it finds that the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument. Adequate protection may be provided by any reasonable means.
In particular, look at (1)(c). The statute requires the Note be “destroyed,” its whereabouts “cannot be determined,” or it is in the wrongful possession of an “unknown person” or a person that “cannot be found” or is “not amenable to service of process.”
At the conclusion of trial, I argued the bank did not meet this requirement. Essentially, the Note wasn’t “lost” – it was in the possession of the bank’s own attorney, and the bank never even bothered to ask for the Note back. The Court agreed. Defense motion granted, case dismissed.
It probably didn’t hurt that I got to cite Correa v. U.S. Bank, Nat’l Assn., 118 So. 3d 952 (Fla. 2d DCA 2013), a published decision in which I was counsel where the trial court was reversed because insufficient evidence was presented to prove a lost note count.
Anyway, I left the courthouse today smiling/laughing. For all the garbage that David Stern pulled, and all the homeowners he harmed, it’s about time some consumer got a good result because of his shenanigans.
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Last week, Florida’s Fourth DCA issued a decision on paragraph 22 that came completely out of left field. In Holt v. Calchas, LLC, Case No. 4D13-2101 (Fla. 4th DCA 2014), the court ruled that a defective paragraph 22 letter does not give rise to dismissal, as the letter is a condition precedent to acceleration but not foreclosure. As a result, per the Fourth District, even if a paragraph 22 letter is defective, the bank can still foreclose on unpaid installment payments. Oddly, the Fourth District made this ruling sua sponte, without briefing from the parties, and without a single legal citation. Here’s the paragraph of the decision that everyone in the industry (plaintiffs’ lawyers, the defense bar, and a few judges with whom I’ve spoken) finds so odd:
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.
I’ve argued the paragraph 22 issue probably 1,000 times at this point. Never once has a bank lawyer even tried to assert this position. Never once has a judge so ruled. Perhaps more tellingly, several published decisions characterize paragraph 22 not just as a condition precedent to acceleration, but a condition precedent to foreclosure – including two decisions from the Fourth DCA. See Samaroo v. Wells Fargo Bank, 137 So. 3d 1127 (Fla. 5th DCA 2014); Dominko v. Wells Fargo Bank, 102 So. 3d 696 (Fla. 4th DCA 2012); Zervas v. Wells Fargo Bank, 93 So. 3d 453 (Fla. 2d DCA 2012); Laurencio v. Deutsche Bank Nat’l Trust Co., 65 So. 3d 1190 (Fla. 2d DCA 2011); Konsulian v. Busey Bank, N.A., 61 So. 3d 1283 (Fla. 2d DCA 2011) (repeatedly characterizing the paragraph 22 notice as a “condition precedent to foreclosure”); Frost v. Regions Bank, 15 So. 3d 905 (Fla. 4th DCA 2009).
Under the circumstances, and even though I was not involved in the Holt case in any way, I felt compelled to file this Motion for Rehearing as Amicus.
Predicting what an appellate court will do is always tough, particularly in a case I’m not involved in. That said, I’m hopeful this opinion will be revised on rehearing. Paragraph 22 is a condition precedent to foreclosure, and the anomaly that is Holt should be fixed.
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As the title of this post probably reflects, I was going to save this post for Thanksgiving.
Upon reflection, though, I wanted to get it out there now, so homeowners who want to apply for my free house giveaway have more time to do so.
Yes, I said free house giveaway.
Where to begin? …
This holiday season – and, well, always – I am so thankful for everything I have. I am so fortunate and so incredibly blessed.
While my clients often tell me what a difference I’ve made in foreclosure-world, and how I’ve changed their lives, representing homeowners has changed my life, too.
Back in 2008, I was a one-man show, working mainly out of my house.
Now, Stopa Law Firm has 3 offices, several lawyers, and 20-some staff. Thousands of cases, many hundreds of settlements, and 733 dismissals later, I can hardly walk into a courtroom anywhere in the state without everyone knowing who I am.
I’m thankful for each and every client who trusted my firm with their home. I’m so humbled at every one of you who trusted the advice I’ve given, and so sincerely sorry to those who did not get a better result. With every loss, I cried with you.
I’m thankful for all of the friends and colleagues who have been there for me along the way, both on the defense side (Matt Weidner, Mike Wasylik and Evan Rosen come to mind, though, frankly, there are too many to name – you know who you are), and the plaintiff’s side (yes, there are plenty of smart, compassionate bank lawyers, too – you also know who you are).
I’m thankful for the many fair-minded judges throughout Florida (again, too many to name, though I named many of you on a recent blog) who listened to my sometimes half-baked, cockamamie defense arguments for which there was no appellate case law – at the time, anyway. The entire industry and homeowners throughout Florida laud you, as you helped preserve the integrity of a system that so desperately needed it.
I’m grateful for the staff who have worked years of their lives with my firm, particularly Angela (who started with me at the very beginning), David (likewise), Rachel, Cathy, Alice, and Ashley.
It has been my incredible pleasure to have created and developed the law in the area of foreclosure defense, be it on paragraph 22, Fla. Stat. 559.715, face-to-face counseling in an FHA mortgage, or any of the other issues I so regularly argue. Specific legal arguments aside, I’m thankful that homeowners facing foreclosure have a voice in the court system, and the system now recognizes that many valid defenses to foreclosure do exist.
Despite all of this, though, I often feel like I’m not doing enough.
So many homeowners have lost their homes. There’s still so much sadness … so many tears.
I’m not satisfied with the current state of the law, either. For example, Florida is the only state in the country, to the best of my knowledge and after hours of research, that applies (or, I should say, does not apply) the statute of limitations in a way Florida’s Fifth DCA says it should in U.S. Bank, N.A. v. Bartram, 140 So. 3d 1007 (Fla. 5th DCA 2014). I explained this concept in detail in this blog, citing dozens of cases from Florida and other jurisdictions showing how the statute of limitations is supposed to work, and contrasting that with the ruling in Bartram.
As I suggested in the blog, I fear there are political undertones at play here. After all, barring foreclosure based on the statute of limitations would really stick it to the banking industry, and some of the powers that be are always going to be ultra-hesitant to do anything that could be construed as sticking it to the banks. Particularly now that the Bartram case is on appeal in the Florida Supreme Court, I can’t help but wonder: “What harm there could possibly be in giving away the occasional free house to Florida consumers?” If the banks screwed up and let the statute of limitations lapse, and that’s how the law is supposed to work, then why not rule that said homeowner gets a free house? Is our universe going to spontaneously combust if we give away a few houses along the way? I think not. In fact, I’ve already done it (before Bartram), and the world has gone along just fine. :
My inspiration for a free house giveaway also comes partly from my son Markus, age 8, who simply asked me one day: “Why can’t you give away a house, Daddy?”
Well, Markus, I can.
And I will. With this blog post.
Maybe it’s my not-so-subtle message (my friends in the industry know subtlety was never my forte) that the world will go on just fine if we give away a few free houses.
Maybe it’s my way of giving back to a community that has given so much to me.
Maybe I just have to feel like I’m doing everything I can here.
So, yes, I’m giving away a free house.
Here’s how it’s going to work …
Between now and December 20, 2014, postmark a typed letter, 200 words or less, to:
Stopa Law Firm
Attn: Free House Giveaway
2202 N. West Shore Blvd
Tampa, FL 33607
In the letter, explain why I should choose you (or, to be more accurate, my children and I should choose you – we will decide together) for a free house.
Yes, this is not a gimmick. Stopa Law Firm is going to buy someone a house.
I’m not promising a mansion on the water, but it will be a free and clear house that the winner will own.
The Rules: (Not intended to be harsh, but some rules are necessary):
200 words or less. If your letter is a novel, it will be ineligible.
If a photo helps explain your letter/situation, one photo attached to the letter is permitted. Any letters with multiple photos will be ineligible.
Your letter must include: 1) the number of people in your family who would live in the home, with the ages of each; and 2) the county/town where you’d want the house to be located, bearing in mind this must be a house you will live in.
With that word/photo limitation in mind, you can say whatever you want. That said, you have to realize – we can only choose one, and I’m sure the winner is going to be an incredible tear-jerker. I’m thinking cancer, significant hardship, something of that ilk. If you’re not in that boat, please spare yourself the disappointment and me and my kids the read.
Anyone is eligible, but you can’t be an existing client. (Sorry, I can’t run afoul of the Bar rule that prevents me from giving financial assistance to existing clients.)
But you are eligible if you were a client of the firm but you’ve already been foreclosed or your case was dismissed (as, in those instances, you’re a former client, not an existing one).
One letter per person. If you send multiple letters, all such letters will be ineligible.
No calling my office about this! No requests for special treatment! No calling to ask if your letter was received. If you do this and annoy us, your letter will be ineligible.
Sorry if that sounds harsh, but my staff are working on pending cases, and I don’t want them distracted with this.
Your letter must be received by December 21, 2014. We will not acknowledge receipt and will not respond to each letter. Some time between Christmas and New Years Day, I will announce the winner.
By sending the letter, you consent to my using it (or discarding it) how I see fit. Frankly, I will probably just throw the non-winning letters away, but I’m likely to post the winner on this blog, and I may post others, too. It’s not such a bad thing if we can put some faces/stories on the homeowners who are being foreclosed in Florida courtrooms on a daily basis.
I am not giving away a home so the winner can sell it and pocket the cash. No, this home must be a home that you will live in. I’m working out ways to ensure this, but if you think you’re going to get a house so you can sell it, please don’t bother applying – it’s not going to work that way.
All else equal, I’m likely to lean towards a homeowner in Hillsborough or Pinellas County, as those are the two counties where I have the most cases/clients. That said, anyone who lives in Florida – and would live in this house – is eligible.
For the winner, I am picking the house! The winner may get input, but any final decisions about what house is being bought, how much money is being spent, etc., are mine. Obviously, my intent is to get a house that is nice/large enough for someone to live in and treat as a home. But I have to reserve all decision-making ability on the details to avoid any problems.
I reserve the right to tweak/amend these rules without notice, as the need may arise. That said, this is the concept, folks.
As the calendar hits November, enjoy the holiday season. Give thanks for what you have. And if you’re facing foreclosure (or faced foreclosure and lost), please know there are people out there who are fighting every day to make the system a better one for homeowners. I’d like to think I’m one of them, and, if nothing else, hopefully this post shows that.
Oh, and every new client (not existing client, new client) who signs up between now and December 31 who mentions “Stopa Law Firm Free House Giveaway” upon signing up will get $100 off.
Happy Thanksgiving, Merry Christmas, and Happy New Year from Stopa Law Firm.
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I recently had occasion to observe a terribly sad sight in foreclosure court, one that has me urging everyone not to make the same mistake this homeowner did.
As I waited for my case to be called, I watched a pro se homeowner attended a bank’s summary judgment hearing. The homeowner explained to the court how he had retained an attorney from another state and paid that attorney $3,500 to get him a loan modification. However, that lawyer never appeared as counsel in the pending foreclosure lawsuit, never filed any papers on the homeowner’s behalf, and did not attend the hearing. By the time that hearing arrived, of course, the loan modification was nowhere to be found.
Obviously incredulous why a lawyer would collect $3,500 and not do anything, the judge asked this homeowner for more specific information. The homeowner explained that this law firm had been “recommended” on the Florida’s Hardest Hit website.
Everyone in the room, including the judge and yours truly, felt awful. This man tried to be diligent in protecting his interests. But he got screwed. His lawyer filed nothing on his behalf, and the homeowner presented no viable defenses to foreclosure, the judge begrudgingly entered the final judgment of foreclosure.
Folks, don’t make the same mistake this homeowner did. I don’t care how reputable a company looks on-line. I don’t care who recommends that lawyer or law firm. If that lawyer/firm does not practice law in the state where your property is located, they cannot help you!
Always, always, always make sure, if you’re retaining counsel to defend a foreclosure case, that said attorney is licensed to practice law in the state where your property is located. Otherwise, they cannot help you, and any money you’ll have paid them will have been flushed down the drain.
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I’ve blogged about a bank’s obligation to provide face-to-face counseling in an FHA Mortgage a couple of times now, introducing the concept here and providing a detailed appellate brief with many case citations here. Those banksters, though … they’re good. And they won’t go down without a fight. Just take a look at what they did in Real Estate Mortgage Network, Inc. v. Knight, Case No. 4D13-1880 (Fla. 4th DCA 2014).
In that case, the lower court granted summary judgment in the homeowner’s favor based on the bank’s failure to comply with HUD Regulations, essentially adopting the argument I’ve set forth in these blogs. Unfortunately, that ruling was incorrect for procedural reasons. As the Fourth District explained, where the homeowner introduced evidence at the summary judgment hearing that the bank did not comply with HUD Regulations, but the bank introduced evidence it did comply, the court should have denied summary judgment and allowed the case to go to trial. You see, at the summary judgment stage, the court cannot resolve conflict evidence, as that is the purpose of trial. That’s basically what the Fourth District ruled in Knight.
The banksters, though, they didn’t want to win merely on the procedural issue. They wanted the whole shebang. They wrote a brief – a really good brief, actually – and asked the appellate court to rule the HUD Regulations don’t apply at all. If this were a baseball game, the banksters were swinging for the fences – and they picked a good pitch to do it on, too. After all, the opinion doesn’t reflect it, but if you look at the Fourth District’s docket, you’ll see the homeowner’s lawyer did not even write a brief. Yes, the banksters pushed a case to the appellate courts – a significant appeal, challenging an issue for which there is little precedent – in a case where the homeowner’s lawyer did not even file a brief!! What a scary thought, to ponder the possibility that a Florida appellate court could have ruled that HUD Regulations do not apply to banks even in FHA Mortgages based on one appeal where the homeowner’s lawyer didn’t even present an argument!
Anyway, we’re all fortunate the Fourth District did not buy what the banksters were selling – at least not all of it. Yes, the bank won Knight on the procedural issue. But the question of whether the HUD Regulations apply in an FHA Mortgage – that’s the big question, the legal issue that affects the entire industry. On that point, here’s what the Fourth District ruled:
REMN argues on appeal that the court erred in applying the HUD Regulations and finding they were a mandatory condition precedent. We have held that non-compliance with HUD Regulations may be asserted as an equitable defense in mortgage foreclosure proceedings. Cross v. Fed. Nat’l Mortg. Ass’n, 369 So. 2d 464, 465 (Fla. 4th DCA 1978).
As I read that, the Fourth District is clearly saying that HUD Regulations may be used as a defense to foreclosure of an FHA mortgage, i.e., yes, this is a defense. As a result, even though Knight ruled in favor of the bank, I’ll be using it to support my arguments for consumers in FHA cases.
Could the opinion be clearer in that regard? Certainly. It could be better. It could say that the HUD Regulations are a mandatory condition precedent in an FHA Mortgage. But think of it this way … if the banksters couldn’t get what they wanted out of the appellate courts despite a well-written brief in a case where the homeowner did not even present any arguments, they’re certainly not going to get what they want in the future (particularly now that I’ve laid the arguments and case law out there for all to see).
The banks’ failure to comply with HUD compliance with HUD Regulations is a viable defense to foreclosure of an FHA Mortgage, and I’m confident the defense is here to stay.
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Newsweek did a story recently about “Florida’s Foreclosure Nightmare.” I was quoted the story, and it was a national story, but I didn’t even blog about it. You see, the story was so darn depressing. Frankly, I’m tired of talking about how hard it is to defend foreclosure cases in the Florida court system. Yes, it’s hard, and yes, the system is stacked against us. We all know this. Truth be told, though, it is certainly possible to fight foreclosure. Yes, it’s hard, but it’s possible. And yes, like the Newsweek article suggests, there are times I feel like I’m battling the judge/court system rather than the bank or its counsel. But there are plenty of judges in Florida who are fair and who try to follow the law. Today, it’s time to mention some of them, and to unveil a defense I’ve been using regularly to help Florida homeowners but which I have yet to mention on this blog.
Take a look at Florida Statute 559.715. It provides: “…the assignee must give the debtor written notice of such assignment as soon as practical after the assignment is made, but at least 30 days before any action to collect the debt.” This statute is part of Florida’s Consumer Collection Practices Act (“FCCPA”), Florida’s version of the Fair Debt Collection Practices Act (“FDCPA”). While the statute is a Florida statute (and I’m only licensed to practice law in Florida), the FDCPA applies everywhere, and most states have some statutory scheme similar to the FCCPA. Hence, I see no reason the argument I’m raising here can’t work everywhere – at least sometimes.
In layman’s terms, the argument is simple. If the bank filing the foreclosure lawsuit is not the original creditor, that bank has to give the homeowner written notice of the assignment of the debt at least 30 days before filing that suit. Where the notice is not given, the plaintiff has not complied with the statute, so the case should be dismissed. Such a dismissal would not be a judgment on the merits and would not give rise to a free house, but, similar to the result on the paragraph 22 dismissals I’ve spoken of so many times, where a plaintiff fails to comply with this condition precedent, the case should be dismissed without prejudice.
I’ve made this argument hundreds of times (yes, hundreds) over the last couple of years. The argument the banks regularly make against me is that mortgage foreclosure is not an “action to collect the debt,” as it is merely a foreclosure action, not a suit for money. For the reasons set forth in this Answer Brief, I think that argument is wrong. In fact, I believe Florida’s Second District Court of Appeal explicitly held it is wrong in a decision issued on August 15, 2014. See Gann v. BAC Home Loans Servicing, LLP, Case No. 2D12-6271 (Fla. 2d DCA 2014).
Check out the Answer Brief. This is the argument I’ve been making across Florida courts over the last two years. And as I say in the brief (see Issue IV), I’ve prevailed on this 559.715 argument before thirty (yes, 30) different Florida circuit court judges.
At present, there is not a published Florida decision which says a foreclosure lawsuit should be dismissed for failure to give the notice set forth in Fla. Stat. 559.715. But since this issue is now in the appellate courts, I think that decision is coming. In the meantime, I want to take note of the judges who have followed the law (or what they believe the law to be) and dismissed at least one case based on a foreclosure plaintiff’s failure to give the notice required by Fla. Stat. 559.715. If you’re before these judges with this fact pattern, you should at least have a fighting chance. And if your judge isn’t listed here, maybe I just haven’t had a chance to argue this precise before him or her yet (or maybe, candidly, I have so many of these Orders I inadvertently left a few off the list). Regardless, at a time when Newsweek is criticizing Florida judges, I’d like to note a few who try their best to follow the law, despite a system that’s rigged against consumers:
Pinellas: Hon. Mark Shames, Hon, Pamela Campbell, Hon. John Schaefer, Hon. Bruce Boyer, Hon. David Demers, Hon. Jack Day, Hon. Walt Logan, Hon. Thomas Minkoff, Hon. Marion Fleming, Hon. Amy Williams
Hillsborough: Hon. Sandra Taylor, Hon. Perry Little, Hon. Donald Evans, Hon. Christine Vogel, Hon. Raul Palomino, Hon. Judy Biebel, Hon. J. Rodgers Padgett, Hon. Frank Gomez
Pasco: Hon. Ray Ulmer
Orange: Hon. Alice Blackwell, Hon. Donald A. Myers, Jr., Hon. Lisa Munyon, Hon. Emerson Thompson, Hon. John Adams
Marion: Hon. Carven Angel
Brevard: Hon. W. David Dugan, Hon. Lisa Davidson, Hon. Charles Holcomb
Seminole: Hon. Carmine Bravo, Hon. Alan Dickey
Hernando: Hon. Daniel Merritt
You’ll note my Answer Brief also sets forth another defense – the bank’s obligation to give the face-to-face counseling set forth in 24 C.F.R. 203.604 on an FHA mortgage. I’ve blogged about this issue previously, but the write-up and case law citations are much more comprehensive in the brief. Oh, and note all the out-of-state cases? I’m extremely confident this argument should work any and everywhere, so long as you have an FHA mortgage. But while we’re naming judges, let’s mention those who have dismissed at least one of my cases based on failure to give face-to-face counseling (understanding that FHA mortgages are far less common than the mortgages with paragraph 22, so the issue does not come up nearly as frequently):
Pinellas: Hon. Jack Hellinger, Hon. Walt Logan, Hon. Pamela Campbell, Hon. Walter Schafer, Hon. John Schaefer
Hillsborough: Hon. Sandra Taylor, Hon. Perry Little, Hon. Donald Evans, Hon. Christine Vogel, Hon. Judy Biebel, Hon. J. Rodgers Padgett
Orange: Hon. Emerson Thompson
Lee: Hon. James Thompson
Polk: Hon. Randall McDonald, Hon. Cecilia Wilhite
Brevard: Hon. Dean Moxley
So when you’re reading the Newsweek article, know that, yes, the system of fighting foreclosures in Florida is hard, but it is possible, and there are many circuit judges – many of them named herein – who do try their best to follow the law.
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I made the news today. Twice, actually. Two completely different stories, too – one where I was mentioned in a way that most would view as positive, the other in a way that probably makes you think “why on earth is Stopa broadcasting that?” For me, though, the stories are inter-related and merit discussion, as they shine a spotlight on how the foreclosure process is supposed to work.
In 2010 (I think it was 2010 – it was a long time ago), I was working on a foreclosure case – nothing out of the ordinary – when I asked a foreclosure judge to allow me to amend my client’s pro se Answer to the Complaint. Leave to amend is freely granted, yet the judge denied the motion on the basis that delays in the adjudication of the case would not be tolerated. Wow. Having to defend the case with the client’s pro se answer made the case a virtual slam-dunk for the bank; we had no defenses! Yet as the banks are prone to do, they still managed to screw it up, showing up at trial without the original note and without a single witness – none of the proof needed to win.
I believe the judge should have dismissed the case, particularly when the bank had no excuse for its failure to bring a witness. (Years later, the excuse still annoys me – the witness “didn’t feel like coming.” Wow.) But instead of dismissing, the same judge who denied leave to amend (to avoid delay) granted a continuance … creating, yes, a delay. I was quite disappointed. As I saw it, a delay was okay when it was the bank that needed one, but impermissible for the homeowner, even for something as simple as leave to amend. I viewed it as a wrong ruling, and I set up a motion for rehearing saying so.
The intent behind that motion is a huge part of my persona in foreclosure-world. It’s the battle I’ve waged every day … every hour of every day … for the last five-plus years – trying to get a court system adamant about pushing foreclosures through the system to follow the law and be fair. By and large, I think I’ve succeeded. Today I got my 670th foreclosure case dismissed. Not with leave to amend, outright over, homeowner wins. 670! Numbers aside, I now believe most judges before I appear regularly are very fair and strive to follow the law … and I’d like to think my efforts over the last several years have had something to do with that, not just for my clients, but throughout Florida.
This motion, though, was worded in a way that was too over-the-top. It angered the judge, who forwarded it to the Florida Bar. I didn’t even sign the motion, and firmly believe I could have fought the process and avoided punishment. But rather than engaging an expensive, time-consuming battle when I’d rather be defending homeowners, I settled the dispute by accepting a reprimand (basically a warning) and moved on. Today, the Tampa Bay Times wrote an article about it. And while I don’t think I was quoted correctly, the point is basically right – that I’m going to keep striving to help homeowners, but do so in a way that keeps me out of hot water.
Why on earth would I willingly talk about this in an open forum (under no obligation to do so)? Well, that story today came out the very same day as this other story, where I was published in Naked Capitalism. The arguments I raised for one homeowner in a foreclosure case before Palm Beach County before Judge Diana Lewis were used to support the author’s view that said judge was not being fair to homeowners. That’s a big story this week because Judge Lewis will no longer be a judge coming November, as she lost the election to Jessica Ticktin.
Frankly, I haven’t appeared before Judge Lewis too many times. That said, I’ve talked to my colleagues and I’ve read what the Palm Beach Post and other papers in South Florida had to say about her as election day approached. Virtually everywhere I looked, the newspapers were endorsing her competitor, Jessica Ticktin, and not Judge Lewis in the recent judicial election. From what I’m told, Judge Lewis often told homeowners who were foreclosed, during court proceedings in open court, to “start packing.” And as the transcript from my hearing reflects, Judge Lewis said her “job” was to move foreclosure cases.
While I have nothing bad at all to say about Judge Lewis, I can’t help but feel like the process worked here. The motion that I filed in that case, above … the one that got the Bar mad at me … was never going to have terribly much impact on the process as a whole. Yes, it was part of what I do, but I could have accomplished the same result without words that were that inflammatory. The judicial election, on the other hand … that’s the way to really make an impact. So if you think a judge is unfair in foreclosure cases or, frankly, any type of case, guess what? Judges are elected officials. If it’s really that bad, then gather up public support, wait for the next election, and vote for the competitor! That’s basically what happened in the Ticktin/Lewis race, and that’s probably why Ticktin won.
I’d like to think the Ticktin/Lewis outcome also serves as a subtle reminder to all Florida judges that “yes, we have a job to do, and yes, that sometimes include foreclosing on homeowners in our county, but we still have to answer to these homeowners, so we have to be fair about the way in which the foreclosures are done.”
In this same vein, judicial accountability to the public is a significant reason why many lawyers believe the senior judge system in Florida doesn’t work. You see, unlike normal, sitting circuit judges, senior judges do not get (re-)elected and, hence (at least arguably), have no accountability to the public at all. In other words, the senior judges have no fear of what happened to Judge Lewis, as they aren’t elected. That’s no disrespect to any particular senior judges whatsoever – I appear before senior judges nearly every day, and most try very hard to be fair and follow the law. That said, I think the results in Ticktin/Lewis reveal the importance of all judges, particularly in foreclosure court, being subject to re-election by the Florida public. So all of you who complain about judges, remember election day – that’s where you can make a difference.
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Florida’s Fifth District Court of Appeal just issued this decision in Garcia v. BAC Home Loans, reversing a Final Judgment of Foreclosure because the trial court improperly denied a motion to dismiss for lack of prosecution. I always enjoy appellate decisions which rule in favor of homeowners, and I’m particularly biased to the ones where I’m counsel. So what can we learn from today’s decision?
Florida Rule of Civil Procedure 1.420(e) sets forth a two-step process by which courts must dismiss a lawsuit (any civil lawsuit, not just a foreclosure case) where the plaintiff has not been diligently prosecuting the case. I’ve blogged about lack of prosecution in the past, and the Rule is pretty straightforward. If nothing at all is filed for a 10-month period in a civil lawsuit, a defendant can file/serve a notice reflecting the lack of record activity. If nothing is filed in the 60 days thereafter, the defendant can seek dismissal of the case, without prejudice, for failure to prosecute. At that point, the plaintiff’s burden to keep the case pending is pretty high – it requires a showing of “good cause,” which case law loosely defines as a “really darn good reason why they didn’t do anything to prosecute the case for a year.”
I recently brought one of these motions in a foreclosure case in Marion County. The judge declined to dismiss the case and, oddly, would not even give me a hearing on the motion. Today, the appellate court reversed that ruling, explaining that a hearing is required and if the bank cannot show the requisite “good cause” then the case must be dismissed.
Here’s my Initial Brief, the bank’s Answer Brief, and my Reply Brief … and here’s the full text of the Fifth District’s decision:
On May 25, 2007, Appellants gave a note and mortgage in the amount of $156,000 to Appellees. The mortgage went into default on October 1, 2009, and on March 5, 2010, foreclosure was filed. Appellees sought to foreclose on the Garcias’ property. For several months, litigation proceeded as normal and then, suddenly, all activity ceased. Nothing transpired between November 12, 2010, and November 7, 2011, when Appellants filed a notice of intent to dismiss for lack of prosecution, which was mailed to Appellees on November 4, 2011. Nothing more was filed in the sixty days following the notice of intent until January 6, 2012, when Appellants filed their motion to dismiss for lack of prosecution, which was mailed to Appellees on January 4, 2012. On January 17, 2012, Appellees filed a motion to amend their complaint. On February 13, 2012, the court entered its order dismissing Appellee’s complaint “without prejudice” and, in the same order, granting Appellee’s motion to amend. On June 7, 2012, the court acknowledged in its order that Appellee’s complaint had been dismissed for failure to prosecute.
The issue on appeal is whether the court erred in granting the leave to amend. Florida Rule of Civil Procedure 1.420(e) reads:
In all actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 10 months, and no order staying the action has been issued nor stipulation for stay approved by the court, any interested person, whether a party to the action or not, the court, or the clerk of the court may serve notice to all parties that no such activity has occurred. If no such record activity has occurred within the 10 months immediately preceding the service of such notice, and no record activity occurs within the 60 days immediately following the service of such notice, and if no stay was issued or approved prior to the expiration of such 60-day period, the action shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.
Clearly, Appellees filed nothing within a ten-month period. After they received notice from Appellants, they filed nothing within the sixty-day period. The court, apparently acting on its own, dismissed Appellees’ complaint without prejudice and granted Appellees’ motion to amend. There was, therefore, no noticed hearing to start the five-day clock to show cause. Appellees’ only issue is whether the court properly granted the motion to amend. We hold, however, that during the throes of rule 1.420(e), when it is time to show cause, rule 1.190(a), authorizing amendment of pleadings, is inapplicable. In any event, the court misinterpreted the rule. Rule 1.420(e) does not authorize the dismissal of a complaint; it requires the dismissal of the action. Our only appropriate action is to reverse and remand with instructions for the court to conduct a good-cause hearing, and if none can be shown, dismiss the action. Appellees’ remedy then will be to file a new action for those claims not barred by the statute of limitations. See Singleton v. Greymar Assocs., 882 So. 2d 1004 (Fla. 2004); U.S. Bank Nat’l Ass’n v. Bartram, 140 So. 3d 1007 (Fla. 5th DCA 2014).
REVERSED and REMANDED with instructions.
ORFINGER, LAWSON, JJ., and HARRIS, C.M., Senior Judge, concur.
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