If you’ve ever sat through a mass-motion calendar in foreclosure court, you’ve seen it happen. An elderly or disabled homeowner appears pro se and makes a heart-wrenching, emotional argument why he/she shouldn’t be foreclosed. Cancer. Job loss. Nowhere else to live. Invariably, the judge will respond with something like “I’m sorry, but that’s not a legal defense to foreclosure.” Often, in fact, Florida’s judges are so used to hearing these stories from homeowners that they begin each hearing by asking “do you have any legal defense to foreclosure?” (emphasizing the term “legal defense”).
As much as we may not like it, equity does not trump law. If my client is 85, cancer-stricken, and has just six months to live, that is not a reason for a judge to deny foreclosure. We might think it should be, but it’s not.
I often find myself lamenting this concept, but, fortunately, it works both ways. You see, just as a judge cannot ignore the law when foreclosure might seem terribly unfair to the elderly/disabled woman, the judge cannot ignore viable legal defenses just because that judge might find it inequitable for the homeowner to live in the house for free.
Unfortunately, I see this concept more and more nowadays. Judges have been litigating foreclosure cases for five years. Some are tired of dealing with it. All are under immense pressure from higher-ups to “clear the backlog” of foreclosure cases. This has caused some judges to view certain foreclosure defenses as inequitable. ”They’re living in their house without paying, so why should I dismiss the foreclosure suit against them based on some technical defense?”
To be fair, most judges won’t come right out and say it like that. But if you litigate for homeowners enough, you can see this thought process from some judges. ”Foreclosure is an equitable proceeding. I can rule in a way that I find equitable.” Sometimes, that means disregarding defenses for the sake of a more expeditious foreclosure.
Respectfully, I believe that’s the wrong approach.
Let’s give some examples.
Florida Statute 57.011 requires any plaintiff who is not a resident of Florida to post a $100 non-resident cost bond upon filing suit. Under the terms of the statute, if the plaintiff doesn’t post the bond, the defendant gives written notice of the failure to do so. Then, if the Plaintiff still doesn’t post the bond, the defendant moves for dismissal and the court “shall” dismiss the lawsuit without prejudice.
I can totally see how enforcement of this statute, as drafted, seems terribly inequitable. What is the point of a $100 cost bond, anyway? To ensure a defendant can recoup $100 if the case is dismissed? Are we really going to dismiss a case over $100? Perhaps unsurprisingly, many judges don’t like dismissing a foreclosure case when a plaintiff fails to post the non-resident cost bond. Some have outright told me they “do not dismiss cases” on this basis. That sounds reasonable, perhaps, but I respectfully submit it is wrong.
It doesn’t matter if the judge thinks a statute is arcane and outdated, that dismissal is too harsh of a penalty, or that the defendant shouldn’t get to recoup attorneys’ fees for winning the case on a “technicality.” A judge’s role is to enforce statutes as they are written, not to inject his/her own, subjective views of equity in applying a statute. After all, that’s how our government is set up – judges enforce statutes and the legislature writes (and re-writes) them. Florida’s highest courts have explained this concept on many occasions – statutes must be enforced even if the judge finds it unfair to do so. See e.g. Thomas v. State, 65 So. 2d 866 (Fla. 1953) (“in deference to the Legislative Department of the Government, we have no authority to ignore the statute. Whether or not we believe in the statute is immaterial. If the statute is unwise, the remedy is to repeal by legislative enactment and not by judicial decree because we disagree with it.”).
Similarly, I’ve had a lot of success getting foreclosure cases dismissed when the paragraph 22 letter the bank sent before filing suit did not contain the information required by that paragraph of the mortgage. That’s not to say all cases turn on this, of course. After all, some of these letters are sufficient and some are not, and most judges will rule accordingly (dismissing the cases where the letter is the requisite information and not dismissing those that are sufficient). Some judges, though, don’t rule that way. Most won’t come right out and say so, but some judges have never found a paragraph 22 letter that did not “substantially comply.” Since there is not one appellate decision in Florida that says “substantial compliance” is the standard in the paragraph 22 context – not one - I don’t believe these judges are ruling this way based on law, but a mixture of law and what that judge perceives to be equitable.
On one level, I can understand that. Why should a foreclosure case be dismissed because a letter a bank sent a homeowner before filing suit did not say precisely what it was supposed to say? I get that argument, I do. But where the parties’ contract required that letter to contain certain information before filing suit – in a contract drafted by the bank and put in boldfaced font – how can anyone choose to ignore the parties’ own contract simply because they wouldn’t like the result of enforcing that contract as written?
As I see it, all of us in foreclosure-world must insist the law be enforced and subjective views of equity be cast aside. As much as we might want sympathy to guide a judge’s decision when dealing with that elderly/handicapped woman, equity can’t drive the train. Otherwise, our entire system of laws gets thrown by the wayside in favor of what each judge thinks is fair. ”Law” would cease to exist, being replaced by each judge’s subjective view of equity. We just can’t have that.
This might sound like I’m saying “judges aren’t fair.” That’s not what I’m saying. My point is that our system of laws can’t operate in a way that each judge rules based on what he/she thinks is fair because there is no way to enforce that. After all, if you take any two, random people, they will often disagree on what is fair or equitable. Realizing that Florida has many dozens of judges, with a myriad of different backgrounds and experiences, it’s easy to see how equity cannot drive the train – the opinions about what is “equitable” would be all over the map! One judge would think foreclosure was equitable in a given situation (the homeowner didn’t pay), while another would not (the homeowner was elderly/handicapped). There would be no way to know/predict how any particular judge felt, and no way to enforce these subjective views of fairness.
Don’t take my word for it. In 1986, the Florida Supreme Court was presented with an “equitable” argument in a mortgage foreclosure case. The Court ruled:
Petitioners argue that the foreclosure should be denied because an acceleration of the due date would be an inequitable or unjust result and the circumstances would render the acceleration unconscionable. … Although providing equitable relief in a proper case is discretionary with the trial judge, were that discretion not guided by fixed principles, the degree of uncertainty injected into contractual relations would be intolerable. Equity cannot therefore look solely to the result in determining whether to grant relief, but must apply rules which confer some degree of predictability on the decision-making process.
David v. Sun Fed. Savings & Loan Assn., 461 So. 2d 93 (Fla. 1984). That’s it, folks. Foreclosure cases are adjudicated based on a compilation of “rules which confer some degree of predictability on the decision-making process.” Id.; see also Smiley v. Manufactured Housing Assocs. III Ltd. P’ship, 679 So. 2d 1229 (Fla. 2d DCA 1996) (“in determining whether to grant equitable relief, the trial court cannot look solely to the result but must apply rules which confer some degree of predictability on the decision-making process”).
So the next time you have a judge disregard the cost-bond statute as arcane and outdated, or inject his/her views about how foreclosure defense is not “equitable,” remind the judge of these concepts. Point out how “equity” isn’t a defense for that elderly/handicapped homeowner, so “equity” can’t be a basis for ignoring statutes or laws that work in the homeowner’s favor, either.
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Florida Rule of Civil Procedure 1.540 authorizes Florida courts to grant litigants relief from an Order if the Order resulted from the litigant’s “excusable neglect.” The classic example of this is when a party loses at a hearing because of an inadvertent calendaring error. That rule makes sense, and there are lots of cases which say so. After all, litigants should lose cases on the merits, not because the lawyer’s staff calendared a hearing incorrectly.
In foreclosure-world, where sloppy lawyering and careless bank practices are often the norm, the extent to which this Rule applies is a frequent source of contention.
An example we often see is when a bank’s lawyer fails to attend a court-ordered Case Management Conference. You see, judges in foreclosure cases routinely set such CMCs as a way to force dilatory plaintiffs to come to court to prosecute their cases. If the bank’s lawyer doesn’t attend this CMC, then boom – case dismissed. See Fla.R.Civ.P. 1.420(b) (authorizing dismissal for violation of a court order).
Often, plaintiffs’ attorneys seek relief from the Order of dismissal under Rule 1.540 by arguing “excusable neglect.” “Sorry, judge. We inadvertently failed to calendar the hearing, so we missed it. Don’t dismiss the case where we made a calendaring error.”
As bad as that may sound, there are many cases supporting that argument. Again, courts prefer to adjudicate cases on the merits, not by foibles of human nature. The problem, of course, is the plaintiffs’ lawyers know this, so it’s easy for them to cite the buzzwords to argue to obtain relief under Rule 1.540. As a result, the Rule is easy to abuse. You’re a bank lawyer and you want a adverse ruling vacated? From an Order at a hearing you didn’t even attend? Just argue your staff inadvertently failed to calendar the hearing, so that’s why you didn’t attend. Have the legal assistant sign an affidavit to that effect and the Order will get vacated. Right?
Often, it’s not that simple – or it shouldn’t be, anyway. You see, Florida courts only authorize relief where the neglect was “excusable.” That merely begs the question – when is neglect “excusable” and when it is inexcusable?
By way of example, suppose a plaintiff’s counsel did not even have a system in place to calendar hearings, rather the lawyer simply tried to remember all of the hearings. Or suppose there was a calendaring system, but the lawyer knew his secretary wasn’t calendaring hearings correctly and didn’t do anything about it. In those examples, that type of neglect would not excusable. As the Fourth District said in a similar context, that’s not evidence of a “system gone awry,” but a ”defective system altogether.” Bequer v. Nat’l City Bank, 46 So. 3d 1199 (Fla. 4th DCA 2010) (reversing finding of “excusable neglect”). To use the words of the Second District, that wouldn’t be ”excusable neglect” justifying relief from an Order, but ”gross negligence.” See Hurley v. Govt. Employees Ins. Co., 619 So. 2d 477 (Fla. 2d DCA 1993) (reversing order finding “excusable neglect”).
Those might sound like extreme, even ridiculous examples, but let’s go back to my CMC example, sharing a real-life argument.
Recently, a Polk County judge dismissed a case I was defending where the plaintiff’s counsel did not attend a CMC. Order entered, case dismissed. Months later, the bank’s lawyer moved to vacate the Order, arguing his staff inadvertently failed to calendar the hearing. The lawyer even filed affidavits from his staff saying such.
I took a closer look at the file, then drafted this Timeline. It reflects how plaintiff’s current counsel had the file transferred to it by a different firm in June of 2013, yet new counsel did not actually file an appearance in the case until two months later. By that point, however, the Order setting the CMC had already been mailed (to prior counsel) and the CMC had already taken place. Hence, this wasn’t a calendaring error – the new firm wasn’t even counsel when the Order was mailed. The new firm had simply failed to appear in the case, even though the file had been transferred to them two months earlier. In other words, there wasn’t anything for the new firm to calendar; they hadn’t even received the Order due to their failure to appear in the case! Compounding the problem, the new firm waited two more months before seeking relief under Rule 1.540, arguing “excusable neglect.”
Here, take a look at the bank’s arguments. Now compare them to the facts in the Timeline. Not exactly an honest characterization of the facts, huh? And more significantly, it wasn’t ”excusable neglect,” either. The judge agreed, the bank’s motion was denied, and the Order dismissing the case remained in place.
What’s the moral of the story? Excusable neglect might seem like a low standard – a low bar to clear. In many ways, it is. But all neglect isn’t excusable, particularly not in foreclosure-world.
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I had a hearing recently. As always, I had prepared beforehand, so I was ready and I was confident. As the hearing time arrived, though, I had to wait. This hearing was on a mass-motion calendar, such that several hearings in various cases were all scheduled at the same time.
Frankly, it often feels like a waste of time, having to wait and watch other cases while waiting for my turn. That said, it’s sometimes interesting to watch other lawyers argue.
Anyway, as I was watching these other cases, waiting for my turn, I realized that one lawyer’s argument was exactly the same as the argument I was about to make. Same facts, same argument, same judge. When that lawyer lost (“motion denied”), I was discouraged. My argument, after all, was the same. And that lawyer, frankly, hadn’t done a bad job.
About 30 minutes later, it was my turn. I argued the same issue, just in a little different way. “Motion granted.” Case dismissed.
Why would a judge rule differently on the same issue and the same facts in less than an hour? From where I was sitting, just one thing was different – the lawyer.
Maybe that judge knows I can (and will) go to the appellate court. Maybe that judge respects the work I’ve done and passion I exhibit representing homeowners. Maybe there’s something about the way I argued it that made the judge agree.
Whatever the reason, ask yourself this. If a judge can deny that first lawyer’s argument, when he did a pretty good job and presented the argument correctly, how do you think you’ll fare as a pro se homeowner trying to argue it yourself?
This is one aspect of this blog that has always troubled me. I want to help educate the public and spread information. But this information has to be used in the right way. If you think you can copy a form or something you’ve read here and use it to win, please take this story as a word of caution. Foreclosure defense isn’t just presenting the right argument – it’s making the right argument at the right time in the right way (and, often, from the right lawyer).
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I’m sad to report a heartbreaking story from Palm Beach, where a woman in foreclosure killed her two teenage children, then herself.
I didn’t know this homeowner, so I’m in no position to say whether her impending foreclosure was the impetus for this tragedy or if something else was the cause. Regardless, this seems like a good time to remind everyone about the human aspects of foreclosure.
To varying degrees, all of our courts are guilty of ignoring the human aspects of foreclosure. They are so consumed with adjudicating cases and reducing the number of pending suits that they forget … these are real people involved.
They’re a mom with two teenage sons struggling to keep a roof over their heads.
They’re an elderly couple living on a fixed income, hoping to stay in their home until they die.
They’re a middle-aged man who temporarily lost his job, unable to support his wife and children like he had.
With so much pressure on our courts from external forces, it can be easy to forget … these are the people we are serving. These are the people who live in the counties where the cases are pending. These are the people who elected the judges presiding over the cases.
So while some want to “grade” the success of the system based on how many cases have been adjudicated, I see a vastly different way to hand out grades. Compassion.
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After I got a foreclosure case dismissed, the bank appealed. Then a strange thing happened. The bank never paid the filing fee. Of course, except in limited situations which don’t apply here, no litigant can pursue an appeal without paying the filing fee. So what happened?
First, Florida’s Second District Court of Appeal issued an Order directing that the filing fee be paid within 20 days or risk dismissal. That was reasonable. Cases should be decided on the merits, and if failure to pay the fee was an oversight, the bank (or, for that matter, any litigant) should be given a chance to fix it.
At the end of that 20 day period, the bank did not pay the filing fee. Instead, it filed a motion for extension of time.
Huh? A behemoth financial institution needs more time to pay a $300 filing fee?
Over a month later, and nearly two months after the 2DCA warned the bank to pay the fee or risk dismissal, the bank had still not paid the filing fee. As such, the Second District dismissed the appeal.
The bank never sought rehearing of that ruling. Instead, two (more) months later, the bank asked that the appeal be reinstated when it finally paid the filing fee. All the bank said to support its position was that failure to pay the fee was due to some unspecified “clerical error.”
A behemoth financial institution takes four months to pay a filing fee, despite receipt of two Orders pertaining to the issue … and that’s a clerical error?
Over my objection, the Second District reinstated the appeal. No explanation was given, and the Order reinstating the appeal did not identify any judges who joined in that ruling.
Disappointed, I filed this Motion for Clarification, Reconsideration, and Written Opinion. I explained how there shouldn’t be two sets of rules, one for foreclosure cases and one for every other type of case. I lamented the absence of any legal authority for reinstating a dismissed appeal two months after the fact. I asked the Second District to identify the procedural mechanism which authorized the appeal to be reinstated. I asked that the judges who joined in that ruling identify themselves. I argued defendants in foreclosure cases should not be made to feel the rules are different for them.
Today, I received an Order directing the bank to respond to that motion. What an interesting and unique opportunity for the Second District to comment on the banking industry’s failure to perform the most basic tasks inherent in prosecuting foreclosure cases – and to let everyone know the rules aren’t different for homeowners in foreclosure.
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I watched the movie “Elf,” starring Will Ferrell, last night. In the movie, one of the rules for being an elf is to “Treat Every Day Like Christmas.”
It’s a bit corny, yes. But can you imagine this in the foreclosure context?
Treat every day like Christmas.
Think about it. At Christmas, everyone realizes how wrong it would be to foreclose on homeowners. In years past, foreclosure sales during the holidays were cancelled, ensuring no homeowners were thrown out during the holiday season. This year, Florida courts planned in advance, making sure no sales were even scheduled for the end of December. No foreclosures, no sales – everyone stays in their homes.
Before the holidays pass and we all return to our normal routines, we should all take a minute and think about why this is. Why is it that our courts don’t foreclose on homeowners during the holidays?
The answer is obvious. Foreclosing in December is cold. It shows a lack of compassion. An absence of humanity. We all have too much respect for our fellow man to do this.
Once you channel those thoughts and really understand why foreclosing over the holidays is wrong, let me ask … what makes any other time of year so much different? Is foreclosing on January 5 really that much better than December 25?
Sure, I suppose there are instances where foreclosure is unavoidable. However, before we all go back to our daily routines, particularly those of us in the foreclosure industry, we should all remember how we feel right now. Just like Elf says, we should all Treat Every Day Like Christmas.
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Here is a Petition for Writ of Prohibition that I filed in the Second District.
Today, the bank conceded this Petition should be granted. Trial cancelled, case dismissed.
Jurisdictional arguments like this are an important part of foreclosure defense. Make sure you’re utilizing them where appropriate.
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When I started doing foreclosure defense back in 2008, not many lawyers were practicing in that area of law. Today, there are hundreds. Just as with any field of work, there are some lawyers who know what they’re doing and others who, well … not so much.
Deciding who to retain as counsel in your foreclosure may seem like a daunting task. If you received dozens of advertisements in the mail, it may seem impossible to choose one.
Here are some things I recommend you think about as you figure out who you want to act as your foreclosure defense attorney.
1. Duration of experience. Has this lawyer been representing homeowners in foreclosure for years? Or months? How many cases has he/she handled?
2. Depth of experience. Is this lawyer fighting through trial and appeal? Or is the lawyer going to withdraw as trial approaches, as his/her lack of experience causes him to shy away from a trial? How many trials has that lawyer attended?
3. Results. Has this lawyer ever won a trial? Ever had a case dismissed? Ever won a summary judgment for a homeowner? How many?
4. Which lawyer will handle the case? I’ve seen some foreclosure defense firms which advertise/market like crazy, but I know darn well the guy you see on TV isn’t the guy who will handle your case.
5. Fees. Does the lawyer bill by the hour? Monthly? yearly? Are there extra fees charged based on results?
Since I posed the questions, here’s how I’d answer them with respect to myself:
1. I’ve represented many thousands of homeowners in foreclosure since 2008.
2. I’ve litigated foreclosure lawsuits from inception through trial and appeal. I’ve attended dozens of trials for Florida homeowners and I’ve been counsel in a few published appellate decisions. The Second District’s decision in Correa not only dismissed a foreclosure case, it created new law for homeowners to use in future cases.
3. I’m approaching 500 cases that I’ve had dismissed. I don’t typically talk about this publicly, as I don’t want anyone to be misled into believing their foreclosure case is likely to be dismissed simply because I’ve had a lot of cases dismissed in the past. Dismissal is almost always possible, but almost never certain. There are a number of factors that impact whether dismissal will happen in a given case, and often those factors are outside of my control.
Colleagues in the industry see my number of dismissals as an impossibly high figure, but it’s true. This is my life’s passion, to help as many homeowners as possible by getting as many of their lawsuits dismissed as possible.
The reasons for these dismissals run the gamut, from insufficient evidence presented at trial, to defensive summary judgments granted, to pleading defects, plaintiffs’ failure to comply with orders, etc.
I firmly believe, in my heart of hearts, that I’m the best there is at defending these cases and getting them dismissed. I’d like to think that’s why I’ve obtained referrals from existing clients, other lawyers, judges, plaintiffs’ lawyers, secretaries at plaintiffs’ firms, process servers, bailiffs, court reporters, and others in the industry.
4. I can’t handle every hearing myself. However, my staff and I work diligently to ensure I handle the most important hearings/trials myself. If I’m not able to attend, I ensure another, capable attorney is able to do so.
Often, the firms that advertise for foreclosure defense the most are the ones who care the least about the work they perform in court.
That’s why I encourage everyone to go to court and watch.
You want to decide who to retain as counsel? Go sit in your local foreclosure courtroom some day. Watch the hearings. Watch the lawyers. I’m regularly asked for a business card from bystanders in court. Remember, these are public courtrooms, so you’re perfectly entitled to go watch.
5. My firm generally charges by the year. There are exceptions, and the fees can vary, but I’m confident our fees are the lowest in the industry among those who are capable defenders.
On many occasions, my colleagues have pushed me to charge more, arguing I don’t charge enough for the services I provide. That approach just isn’t for me. I want to charge as little as possible to help as many people as possible, particularly those who otherwise could not afford it.
Hopefully this gives you some insight on the things to be looking for and the questions to ask in your search for a foreclosure defense attorney.
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On Friday, December 6, 2013, Stopa Law Firm had its annual Christmas party. I took the staff to Busch Gardens for the day. The event was planned months in advance, with the calendar blocked off for all attorneys and staff.
Unfortunately, in foreclosure-world, judges sometimes sua sponte set hearings and CMCs over which we have no input. Hence, even though we blocked off the calendar for that day, two hearings were set for December 6, 2013. One of those was set by a Tampa judge who, when I alerted him to the previously-scheduled Christmas party, graciously reset the CMC for a different date. That courtesy was much appreciated, and it speaks to the professionalism exhibited by the judiciary in the Tampa area.
A second CMC was set by a judge in Volusia County. In that case, I filed a similar motion to reschedule, alerting the Court to the previously-scheduled Christmas party. Without a hearing, the court’s staff advised my office that the motion had been denied and our in-person appearance was required on December 6.
Convinced the court did not realize the facts, I took a few minutes and drafted this, more comprehensive, Emergency Motion to Continue Hearing or Appear Telephonically. I explained how the party had been planned months previously, that the Court gave no input on the CMC hearing date (set with just a few weeks notice), and that it would be unfair to require an attorney from my firm to miss the Christmas party on such facts. Alternatively, I argued that we should be allowed to appear by phone because the Florida Rules of Judicial Administration require phone appearance for hearings of 15 minutes or less absent “good cause.”
This is the Order I received in response.
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Over the past few years, I’ve been able to get many hundreds of foreclosure cases dismissed. I’d like to think I’ve had a successful foreclosure defense practice, and I feel like I’ve made a difference for homeowners. It hasn’t always been easy, but it’s been a rewarding, enjoyable career path. For many homeowners, though, it’s not enough. A dismissal without prejudice means the bank can re-file, and they want more. ”Quiet title.” “Eliminate my mortgage.”
Part of it is an unfortunate offshoot of the robo-signing fiasco and securitization debacle. “The banks committed fraud.” “The loan wasn’t securitized properly.” Many people mislead themselves into thinking this entitles them to a free house.
Part of this is natural. After all, who wouldn’t want a free house? I would, and I’ve heard judges admit they would in open court. I can’t even call this “greed,” really. Everyone likes free stuff.
What’s frustrating when I encounter these homeowners is their inability to be pragmatic. They’re not in court every day like I am. They don’t understand the climate of the judiciary. They don’t know how the law works. They don’t know how loathe judges are to ever rule this way.
Take a look at the Third District’s November 20, 2013 ruling in BAC Home Loans Servicing, Inc. v. Gamarra. In that case, the trial court entered an Order granting the homeowners a quiet title judgment. Free house … right? Wrong. The Third District did not mince words when it overruled the lower court’s decision. As if to give a warning shot to any attorney seeking such a result for homeowners, the court began the opinion with the following:
A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer”; or “(4) offer evidence that the lawyer knows to be false. . . .” R. Regulating Fla. Bar 4-3.3(a)(1), (4). Despite the clear and unambiguous directive of Rule 4-3.3(a), counsel representing the defendants, Mary Gamarra de Headley and Todd Headley (“the Headleys”) in this foreclosure action, made material misrepresentations in the Headleys’ motion for final judgment, resulting in the issuance of a final judgment that granted relief which was not pled.
Read on. It only gets worse from there.
This is why I don’t talk about quieting title. I don’t blog about it, and I’m loathe to ever discuss such relief with homeowners, much less seek it. No, I’m not afraid of getting my hand slapped. Quite simply, it’s almost always a complete waste of time and money, and it creates false hope/expectations for homeowners.
Let’s put it this way … don’t you think if there were a realistic way to quiet title for Florida homeowners that I’d be doing it regularly?
Quieting title is not impossible, but it’s close. So everyone reading this who perceives that as his/her goal needs to re-assess. “Quieting title” isn’t a goal in foreclosure defense. As for any lawyers trying this, you better be prepared. When the appellate court starts an opinion about quieting title and eliminating a mortgage by citing a Bar rule, this is a path upon which you must tread carefully.
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