I’m rarely the type to get too political or call others to action – I generally leave that stuff to my friend and colleague, Matt Weidner. As a result, my willingness to write this blog should tell you this is important to me.
Jessica Ticktin is running for judge in Palm Beach County, trying to unseat incumbent Judge Diana Lewis. Now … Florida Bar rules prohibit me from disparaging Judge Lewis, and I’m not about to go there. Nothing here is intended to disparage Judge Lewis in any way. So let’s be clear: I have absolutely nothing bad to say about Judge Lewis. Rather, quite simply, I very much – *very much* – want Jessica Ticktin to win this race, defeat Judge Lewis at the polls, and become judge.
Homeowners, consumer advocates, and anyone else who resides in Palm Beach County … if my opinion matters to you at all, heed my advice on this one … vote for Jessica Ticktin. http://ticktinforjudge.com/ Tell your friends, neighbors, family members, whoever – just go vote. I truly believe Jessica Ticktin is the best choice for Palm Beach County.
Lest you think this doesn’t matter because you’re not in Palm Beach, think again. This is our chance to show *everyone* that our voices will be heard. Think of it this way … you don’t think every judge in Florida will take notice if Judge Lewis is unseated (with the help of a push from consumer advocates)?
While you’re at it, my Pinellas County friends can go ahead and vote for Judge Bruce Boyer, Ken Lark, and Brian Battaglia.
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Ever wonder what it’s like to be a foreclosure defense lawyer? My experience this morning sums it up rather well.
I argued a homeowner’s motion for summary judgment. It have the first case on the docket, so the courtroom is packed. The judge (before whom I’ve never appeared) denies my motion (a motion I’ve won many other times in other cases) without explanation. I ask the judge to identify the facts in dispute for trial, which is perfectly appropriate to do, since Fla.R.Civ.P. 1.510 contemplates that as a way to narrow the issues for trial, (but I’m really doing so partly to let the judge know that I know he knows there are no facts in dispute (and my motion should have been granted)).
The judge threatens to hold me in contempt and pushes the rest of my hearings to the end of the docket. Whoah. (Admittedly, I might sometimes deserve that, but I didn’t this morning) …
The end of the docket arrives. I’m up. The judge apologizes, explains at length, in open court, how “brilliant” I am and how I remind him of his own son. The judge then makes it clear he will take whatever time is necessary for the arguments. Wow. Complete 180, totally unsolicited. So I argue the motions in the rest of my cases. The judge denies them all, again with no explanation.
I know I post about the victories sometimes, but this, more than anything, is what my life is like as a foreclosure defense lawyer. You’re always teetering on the edge of contempt (even when you feel like you’ve done nothing wrong), and when you don’t win – even on arguments you’ve won many other times - there’s often no explanation why.
It doesn’t have to be this way, folks. Part of the problem is that this judge had never heard any of my arguments before, since nobody else had ever made them. Keep pushing. Keep fighting. We have to keep spreading the word on the many, viable defenses that exist to foreclosure.
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Do you know how and when to make legal arguments in such a way that those arguments are preserved for appeal and not deemed waived? It’s not nearly as easy as you might think.
Take a look at this Initial Brief. This appeal emanated from an Order granting summary judgment in one of my cases. I won, and the foreclosure case was dismissed. The bank appealed, raising, essentially, two arguments. First, the bank contends summary judgment was improper because the hearing took place with less than 20 days’ notice, in violation of Fla.R.Civ.P. 1.510. Second, it asserts summary judgment should not have been granted because the basis for the judge’s ruling, a defective paragraph 22 letter, was not specified in the written motion, another violation of Fla.R.Civ.P. 1.510.
In many ways, the bank is probably right. I certainly agree the two legal propositions it makes are an accurate representation of the law. Summary judgment motions can’t be heard without 20 days’ notice, and the motion must specifically set forth the grounds therefor. See Fla.R.Civ.P. 1.510. Nonetheless, I’m confident I’m going to win this appeal because the bank waived these arguments and did not preserve them. In other words, the bank can’t win an appeal based on these alleged procedural irregularities when it did not assert those arguments at the right time, in the right way.
Here, check out this Answer Brief. Do you see all of the procedural traps? All of the nuanced ways a litigant can lose a case by not presenting an argument at the right time or in the right way? Bear in mind – this bank had lawyers, and, in my view, they still did it wrong. Do you really think you could avoid these pitfalls on your own?
Finding a competent counsel to help in cases like this – as opposed to handling it yourself – is really no different than hiring a doctor to perform surgery on your broken arm. You’d never even think of operating on yourself. Make sure you have that same mentality with your foreclosure case. And if you don’t live near me (or in Florida at all), there are competent counsel out there – you just have to find them.
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This one’s for you, Tony – and for everyone else trying to find ways to beat those evil banksters.
Homeowners can win a foreclosure trial in a variety of ways. One of my favorites is when the bank is unable to prove its case because it is unable to get information from the prior servicer into evidence. Let me explain.
By the time a foreclosure case gets to trial, it’s rare that the plaintiff prosecuting the case was the same bank that loaned the money. Typically, these loans have changed hands many times by the time trial rolls around. Often, the servicer of the loans change even from the time the foreclosure lawsuit was first filed. Even if you have no legal training, it’s not hard to imagine the evidentiary problems this poses for plaintiffs at a foreclosure trial.
For example, suppose Bank of America was the servicer at the time the paragraph 22 letter was sent, but Nationstar is the servicer at the time of trial. In a normal lawsuit, when the plaintiff goes to trial, it would subpoena any third-party witnesses to trial (e.g. a records custodian or employee of Bank of America) to ensure they can testify. In foreclosure-world, though, that virtually never happens. If Nationstar is the Plaintiff/servicer, you can almost rest assured that one witness will come to trial – an employee of Nationstar (and by “employee,” I mean someone whose sole job entails robo-perjuring, I mean testifying, at foreclosure trials). Well, just think about it. If the only witness at trial is from Nationstar, but Bank of America is the company that allegedly sent the paragraph 22 letter, then how can the employee of Nationstar testify that the paragraph 22 letter was sent? “I work for Nationstar, and I’ve never worked for Bank of America, but I’m here today under oath to say that Bank of America sent this letter.” Huh?
Likewise, if the payment history was a Bank of America payment history up until the time the loan was service transferred to Nationstar, then how can the Nationstar witness testify about the payment history for a company that he/she never worked for?
There is no easy answer to these questions. This is, frankly, one of the most hotly-contested legal issues in foreclosure-world nowadays. To illustrate, take a look at Hunter v. Aurora Loan Svcs., LLC, 137 So. 3d 570 (Fla. 1st DCA 2014). In that case, Florida’s First District Court of Appeal reversed a final judgment of foreclosure, finding the bank was unable to properly admit into evidence business records from the prior servicer. Here’s the portion of that decision I highlight for judges when I take this case to trial:
Here, Mr. Martin’s testimony failed to establish the necessary foundation for admitting the Account Balance Report and the consolidated notes log into evidence under the business records exception. Mr. Martin was neither a current nor former employee of MortgageIT, and otherwise lacked particular knowledge of MortgageIT’s record-keeping procedures. Absent such personal knowledge, he was unable to substantiate when the records were made, whether the information they contain derived from a person with knowledge, whether MortgageIT regularly made such records, or, indeed, whether the records belonged to MortgageIT in the first place. His testimony about standard mortgage industry practice only arguably established that such records are generated and kept in the ordinary course of mortgage loan servicing. … The Account Balance Report and consolidated notes log Aurora relied on were incorrectly admitted into evidence as business records, and therefore, could not serve to establish Aurora’s standing to sue Mr. Hunter in foreclosure
I recently prevailed at a foreclosure trial with precisely this argument. The witness was a records custodian for Cenlar, the plaintiff, and never worked for the prior servicer. When Cenlar tried to introduce the loan history of that prior servicer into evidence, the judge did not allow it. As a result, Cenlar was unable to prove the amount due – an essential requirement for banks in foreclosure cases in Florida – and ultimately entered judgment for my client. If that sounds odd, just think about it. Without the prior servicer’s loan history in evidence, how could Cenlar prove the principal balance owed on the Note? It couldn’t. Sure, Cenlar’s payment history had a principal balance listed on it. But that principal balance was taken from the prior servicer’s records, which were excluded from evidence. Unable to prove the amount due, Cenlar lost that trial.
Cenlar tried to argue otherwise in this Motion for Rehearing, but my response to that motion prompted the Court to enter this Order Denying Rehearing.
This sounds foolproof, right? If the plaintiff/servicer changes in most foreclosure cases, and the banks only bring one witness to trial, i.e. a corporate representative for the current plaintiff/servicer, then banks are systematically unable to prove their cases … so homeowners should win all the time, right? Just think about it. If the Paragraph 22 letter is on Bank of America letterhead and the witness is from Nationstar – ha! Nationstar can’t prove the letter was sent; homeowner wins. The first half of the payment history was maintained by Bank of America, but the witness at trial is from Nationstar – ha! Nationstar can’t prove the amount due. This sounds great, but, unfortunately, it’s not that simple.
In Wamco XXVIII, Ltd. v. Integrated Electronic Environments, Inc., Florida’s Second District Court of Appeal allowed a current servicer to testify about the prior servicer’s business records. 903 So. 2d 230 (Fla. 2d DCA 2014). In my everyday foreclosure practice, banks regularly cite this case in conjunction with testimony about the “boarding process.” According to these robo-perjurers (I’m sorry, I mean persons whose sole job it is to testify at foreclosure trials), the current bank/servicer has a process where they “verify” the accuracy of the information from the prior servicer’s records. And since that information has been “verified,” the current servicer can incorporate that information into its records, adopting it as its own, and use that information to testify at trial. Hence, the information might be generated by a different company, but the current plaintiff can testify about it. Nationstar has an employee at trial with a Bank of America payment history in hand? That’s just fine – Nationstar incorporated that payment history into its records via a “boarding process,” ensuring the accuracy of that information before doing so. Never mind, of course, that it is necessarily impossible for Nationstar to actually verify any of that information without actually talking to Bank of America and/or obtaining the underlying information … but I digress. That’s the bag of rocks the banks are regularly selling our courts … and as we saw in Wamco, it sometimes works.
So how do I handle this situation? Which case is right, Hunter or Wamco? Are those decisions in conflict? Personally, I show judges Hunter, and I distinguish Wamco because the witness in that case personally “overs[aw] collections” of loans and was “personally involved” in the servicing of the loans. In my trials, the witnesses almost never fit the criteria in Wamco, so Hunter is more analogous, I argue.
Some judges don’t like this argument. They don’t want homeowners who haven’t paid their mortgage to win on “technicalities” like this. My response? The evidence code is not a technicality, and the rules aren’t different for foreclosure cases. In fact, I rarely give an opening statement in foreclosure trials, but when I do, it’s usually that. “Judge, I simply remind the court that the rules of evidence are not different just because this is a foreclosure case.” Plus, I find little reason to cater to banks on evidentiary issues when they could issue subpoenas to these third-party witnesses; they just systematically refuse to do so. Why? In my view, it’s because they know the court system is, more often than not, going to bail them out, allowing them to get away with bending the rules to facilitate their foreclosures. Rules be damned – we’ve got foreclosures to process!
Like most things in foreclosure-world, my evidentiary objections on issues like this sometimes work and sometimes don’t. But hey, we’re talking about homeowners in foreclosure. Anything that works even some of the time is another tool for the toolbox. And if your judge doesn’t like it, make sure you remind the Court. ”The rules of evidence aren’t different just because this is a foreclosure case.”
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Today’s inspiration just met me in my office.
He’s a Florida homeowner who used to be wealthy but lost it all in the Great Recession. Over the past few years, he’s read my blog, used it to defeat five foreclosure cases (pro se, but with the help of a non-foreclosure lawyer). At the same time, he’s started rebuilding his financial affairs and realized he wished he had given away more money when he had it. Inspired by my cash giveaways to the homeless, he wanted to contribute to my give-aways. Yes, he’s an anonymous donor.
Instead of cash handouts to the homeless, though, he wants to pay me to take a few foreclosure cases for homeowners who otherwise wouldn’t be able to pay. He thinks that better targets those in need.
As a result, in the next few months, I’ll be looking for such homeowners as they come in the door. Don’t ask – you’ll be turned down (and that’s not how this works). Instead, just know that I’ll be looking for such homeowners, with the help of this anonymous donor who wants to contribute to the cause.
Pay it forward, folks. Together, we’ll change the world.
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Original Story: WTSP
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I recently had a trial which, in my view, exposed everything that is wrong with foreclosure-world. But first, a little background …
In most civil lawsuits, it’s up to the parties to set a trial date. Courts don’t set trials on their own; the parties do. In foreclosure-world, though, little is normal. For many months now in Courts throughout Florida, it’s the Courts that take it upon themselves to set cases for trial. Candidly, this dynamic has always driven me crazy. From a defense perspective, when Courts take it upon themselves to set trial, it feels like the Courts are helping the banks prosecute their cases – helping them foreclose on homeowners faster. Some might disagree, arguing either side could win at trial and the Courts are just managing their dockets. But think about it. In 99.99% of foreclosure cases, the banks are the only party seeking relief. Hence, in my view, when a Court takes it upon itself to set a trial, it’s like the Court is saying “you’ve sued for foreclosure, bank? You want relief from the Court? Here, come to this trial date so you can foreclose on this house sooner.” Maybe that’s not what is intended, but as a defense lawyer, that’s how it feels. (If you disagree, then you tell me – how does a quicker trial date help a homeowner?)
It doesn’t always feel that way, of course. Sometimes, the good judges in Florida will dismiss cases at trial when the law and facts require it. So am I saying the system is only fair when cases are dismissed? Of course not. For me, the fairness of the system is often seen not in the result at trial, but whether the Court insists on going forward with the trials that it scheduled.
Consider a recent trial I had in Brevard County. It was a six year old foreclosure case, filed in 2008. Trial had been set twice by the Court and continued once at the Plaintiff’s request. Here we were, at trial the second time, and Plaintiff was verbally requesting another continuance. Plaintiff had no written motion, see Fla.R.Civ.P. 1.460, and, frankly, had no good reason whatsoever for a continuance.
What should a Court do in this situation? It’s a six-year-old foreclosure case. The Court set trial on its own initiative, on the basis that it had to advance the case to resolution to manage its docket. I’m there, per the Court’s Order, ready for trial. Should the Court grant another continuance? To get another continuance, the Plaintiff should need to have a really darn good reason, right? Homeowners certainly wouldn’t get a continuance at trial in a six-year-old foreclosure case without a darn good reason, would they? So why should a bank?
You read the transcript of the Transcript of the hearing and you tell me. Did the Plaintiff have a good reason for a continuance? I sure didn’t think so, and, if I’m being honest, I felt like I thoroughly destroyed the bank’s argument for a continuance. At trial, the bank argued that a Pooling and Servicing Agreement was off by one number, and that was the reason they needed a continuance. I was shocked, as the PSA had not been produced in discovery, identified as an exhibit, or in any way mentioned as part of Plaintiff’s case. For me, this was a totally irrelevant document, yet Plaintiff was using an irrelevant error as a pretense for a continuance to which it was not entitled. That document was not even relevant, and Plaintiff (as the party seeking the continuance) was not even explaining how it was relevant!
As I argued to the judge, I thought the integrity of the judicial system required that continuance be denied. Otherwise, as I explained, Courts come across as little more than debt collectors for the banks. “Here, come to trial and get a judgment. Oh, you’re not ready for your judgment today? Come back in a couple of months and get a judgment then. Oh, you’re still not ready? Come back in a couple more months and you can foreclose then.”
At some point, particularly when Courts set the trial dates, the integrity of the system requires that these continuances be denied. If the bank has a really good reason for a continuance – something that, as the judge said in the final paragraph of the transcript, would truly deprive the bank of its day in court (e.g. the witness’ car broke down coming to trial, death in the family, unexpected emergency), then fine – I get that. But where the bank argues for a continuance based on a document that was not even relevant in the case, six years into a foreclosure lawsuit that had already been continued once – that’s emblematic of a system gone awry.
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While waiting for my foreclosure trial to begin in Lee County this afternoon, the judge announced in open court that the parties (in the case before mine) should be aware of the Order granting a stay pending appeal in Green Tree Servicing, LLC v. Veilleux, Lee County Case No. 08-CA-16469. I immediately thought to myself “hey, that’s my case – I drafted that Order!” Apparently, that Order is the template the Lee County judges use when granting a stay pending appeal in a foreclosure case, as the judge brought it up on his own.
Take a look at the Order. It required my client to maintain the property during the appeal (which she was doing anyway), pay property taxes during the appeal, get homeowners insurance during the appeal (or, alternatively, pay $2,500 into the court registry), and pay $7,500 into the Court registry. That might sound like a lot for this homeowner to do, but think of it this way … she lost the foreclosure trial and her home was set to be sold, yet gets to live in the property without paying the mortgage during the pendency of the appeal, and she did not have to post a bond, either. Plus, if she wins the appeal (and I like her chances), then all of the money in the registry will be returned to her.
If the Lee County judges (a county that’s not exactly known as being friendly to foreclosure defense, mind you) think this Order is a good template, then anyone seeking a stay pending appeal in a foreclosure case should at least be aware of this Order. See also Fla.R.Civ.P. 9.310. Yes, I’ve had occasion to get a stay with fewer requirements, but judges have a lot of discretion on the conditions to impose for a stay, and this Order should give you a good idea of what some bank-friendly judges are looking for to give a stay.
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I get a lot of calls from homeowners wanting help on appeals, and unfortunately I have to turn many of them away. You see, going to the appellate courts is expensive (even after I throw in the standard Stopa discount for Florida consumers), it’s very hard to win, and many homeowners fail at the procedural requirements that are necessary to prevail on appeal (e.g. timely appeal, timely motion for rehearing, transcript of the trial proceedings).
One homeowner’s fact pattern, however, grabbed my attention. This homeowner proved at trial that the original promissory note was sitting in a court file in a totally different lawsuit – filed by a totally different plaintiff – at the time suit was filed against her. As a result, it seemed clear to me the bank lacked standing at the inception of the case, so I took the appeal and filed this Initial Brief. The bank responded with an Answer Brief that surprised me (though after so many years of doing this, I guess I shouldn’t be surprised). The bank didn’t even try to counter my argument that it was not the “holder” when it filed suit, but how could it? The note was in a different court file with a different plaintiff. Rather, the bank argued it had standing via an Assignment of Mortgage. As I explained in this Reply Brief, however, that assignment could not convey standing because the assignor had already assigned the Note and Mortgage to a totally different entity two years prior, and the assignment only transferred the Mortgage, not the Note.
I do a lot of appellate writing, and I’m constantly trying to help consumers and prospective clients understand what it takes to win on appeal. The Fourth District hasn’t ruled yet (so perhaps I’m counting my eggs before they hatch), but this is my explanation of what it takes. The original Note in this case was sitting in a totally different court file, filed by a totally different plaintiff, at the time my client was sued for foreclosure, and when the bank tried to change course and rely on an assignment, I showed that assignment was insufficient to transfer the Note and Mortgage to that Plaintiff for two different, clear-cut reasons.
I guess what I’m saying is this … don’t give up on your appeals, folks. Just know that winning requires a transcript of the trial proceedings, a timely notice of appeal, and a fact pattern as compelling as this one.
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“Home is a notion that only nations of the homeless fully appreciate and only the uprooted comprehend.” Wallace Stegner, Angle of Repose.
Last month, I pledged to hand out $2,000 in cash each month for the rest of the year to the homeless. This month, my journey took me to downtown Tampa – the place where I’ve had more foreclosure cases than anywhere else. Upon arriving, instead of just handing out hundreds right away, I stood. I watched. I watched several men near Stetson with all of their worldly belongings in backpacks on the ground. I watched several other men near the Salvation Army on Estelle St. huddled around a plastic chess board, a few of them sleeping in the dirt, their clothes clearly not washed for a long time.
Watching them, it reminded me of that quote (above). Re-read it. Think about it. Do you know what it’s like to be homeless? Do judges? Do Plaintiffs’ attorneys? Does anyone involved in foreclosure-world know what it’s like (other than the homeowners themselves)? To fear being thrown on the street? I’ll admit it – I don’t. Oh, I counsel those in that situation, and I try to empathize with their plight. But do I *really* know what that feels like? No. That was clear to me as I watched those men, lying on the ground, dirty, hungry, and homeless.
This month, I didn’t hand out $2,000 in cash to these men I encountered. I handed out $2,100. The extra $100 wasn’t my money – it was a from a client, a wonderful man who sent me money with this letter. Read the letter. No, really – read it. That letter … that’s what it’s all about, folks. If you can’t relate to those for whom we’re fighting, then pay it forward. If you’re reading this blog, chances are you’re far better off than many others in the foreclosure crisis. Thank you, Clay Peck. Thank you for your kind words and your inspiration.
Years from now, when the foreclosure mess is all over, I don’t want people to remember Mark Stopa as the smartest or the best. I want people to know I cared. I want people to remember I always left a piece of myself, everywhere I went. Every hearing, every case, every argument, every brief … I tried. I might not truly comprehend the plight of the homeless, but I want everyone who crosses my path to know I care. Because, more than anything, that’s what’s missing in foreclosure-world nowadays.
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