On June 1, 2014, I wrote a blog about one of the most cutting-edge, controversial topics in foreclosure-land: application of the statute of limitations. In that blog, I explained how I believe the statute is supposed to work, i.e. when a bank accelerates the balance due on a Note/Mortgage by filing suit for foreclosure, that suit is dismissed, and five years lapse after that acceleration without another suit being filed, the statute of limitations should preclude foreclosure. Please re-read that blog for my view on how the statute is supposed to operate in this context – it should answer many of your questions about the concept.
Before that blog, and in the ensuing months, Florida’s appellate courts kept ruling otherwise, asserting the statute of limitations does not bar foreclosure. Today, however, Florida’s Third District Court of Appeal issued a beautifully written, 27-page decision explaining how, essentially, the statute of limitations should work exactly the way I’ve always believed. By way of example, today’s decision holds that if a foreclosure lawsuit was filed on August 1, 2008 and was dismissed by the court in 2012 without prejudice (and almost every foreclosure dismissal is without prejudice, by the way), and the bank doesn’t file suit by August 1, 2013, then the statute of limitations bars foreclosure. The SOL wouldn’t stop a bank from filing suit in December of 2014, for example (anyone who pays a filing fee can file a suit), but if that suit is filed after the five years has run, then the statute of limitations is a complete defense.
To clarify, that’s how it works in the Third DCA right now, anyway. The Fourth DCA and the Fifth DCA still disagree. As a result, some parts of Florida are adopting this analysis, while others aren’t, and others have yet to rule. As a result, the Florida Supreme Court will have to issue a decision, and that decision will become the law for the entire state. Once the Florida Supreme Court rules, we’ll have clarity on the law on this issue. Until that happens, please don’t give up on your statute of limitations defenses, folks. This is absolutely, unequivocally, a bona-fide argument and, depending on how the Florida Supreme Court ultimately rules, may result in free houses in Florida (and not just via give-aways by me). That means, yes, you should be hiring a lawyer to defend your cases, as if you don’t assert the SOL as a defense, you won’t prevail on this argument no matter which part of Florida you reside in.
One note: this opinion does not facilitate quiet title suits, as the court ruled that even if the SOL bars foreclosure that the mortgage is still in place. This hence creates the unusual position of the bank having a mortgage that operates as a lien but that it can’t foreclose. As a practical matter, this means a homeowner couldn’t (or shouldn’t) sell their property (selling would necessitate payment of the mortgage), but could live in the house indefinitely or treat the property as a perpetual rental, waiting until the mortgage matures and then getting clear title so as to effectuate a sale.
If this sounds complicated, then, well, it is. This is cutting-edge stuff. Law is being created as we speak. Today, let’s be glad one decision came down in favor of the good guys.
Here’s a video of my oral argument before Florida’s Second District Court of Appeal on December 9, 2015 in Deutsche Bank v. Patterson.
The arguments centered around the propriety of the lower court’s granting of summary judgment and dismissal of the foreclosure case in my client’s favor based on the bank’s failure to comply with paragraph 22 of the mortgage.
I think my favorite part was Judge Wallace’s lack of follow-up questioning after I knocked his veiled inquiry about Holt out of the park.
As the Florida Supreme Court decides whether the statute of limitations bars foreclosure and enables a free house where a bank has blown its deadline to file suit, Stopa Law Firm proceeds forward with its free house giveaway. I introduced the concept a few weeks ago, here, and Tampa’s NBC affiliate did a story on the give-away, above, but here’s a refresher on the requirements:
200 words on why my kids and I should choose you for the house, mailed to: Stopa Law Firm, Attn: Free House Giveaway, 2002 N. West Shore Blvd, Suite 200, Tampa, FL 33607
Postmark your letters by 12-23-14. (I’m extending the deadline by a few days to allow more time for those just finding out about this.)
One picture may be attached.
You’re free to discuss whatever you choose, but your story must be true (and I’ll verify such before anyone wins).
You must live in Florida, and you must intend to live in the house that is bought.
Current clients of Stopa Law Firm, i.e. those with pending lawsuits, are not eligible (sadly, sorry, folks – this is a Bar issue).
Make sure you leave contact information with your letter.
This is real, and it’s happening. All you have to do is submit a letter and convince my kids and I to choose you.
February 24, 2014 was a hectic day. I had several hearings in Polk County and one hearing in Pasco County, right around the same time. Attending the Pasco hearing in person was impossible, so I arranged to attend that hearing by phone. When that hearing time arrived, my Polk County hearings had just ended, and I couldn’t find an empty, quiet room to call in for the hearing. So I did what any lawyer would do – I found a quiet seat on the floor of the men’s room in the Polk County courthouse and called in for my Pasco hearing.
Unbeknownst to me at the time, a colleague took a picture of me, phone in hand, on the bathroom floor, and emailed it to several of my bankster lawyer friends. One such friend later emailed me that photo, and it became a running joke for weeks thereafter – Stopa doing a foreclosure hearing from the restroom floor.
As it turns out, I won that hearing in the bathroom. In fact, the case was dismissed. But that wasn’t the end of this story.
When I submitted the Order of Dismissal to the Court for entry, the bankster lawyer disagreed, arguing the Court did not dismiss the case, but granted leave to amend. The banksters filed a fairly nasty motion, in fact, seeking to vacate the Order of Dismissal and seeking sanctions against me, arguing the Court had not dismissed the case and that I was misrepresenting what happened at the hearing.
This put me in the unusual position of drafting this affidavit, explaining exactly what happened at the hearing. Just yesterday, I filed that affidavit, recounting the events of that hearing on February 24, 2014.
With all the hearings I’ve had, how did I remember that hearing from 10 months ago so vividly? Well, it’s not every day I conduct hearings from the bathroom floor. So, naturally, I included that in the affidavit as well. Yes, that court file now includes an affidavit from me attesting:
“I attended the hearing from the Polk County courthouse – in particular, the bathroom, the best place for me to find a quiet place for the hearing. Suffice it to say this was an unusual experience and one I have not forgotten.”
Yesterday, the Court conducted a hearing on the banksters’ motion to vacate the Order of Dismissal and for sanctions against me. Motion denied. Case remains dismissed. In so ruling, the judge noted that he had no knowledge of my conducting the hearing from the bathroom, but the rest of my affidavit set forth the events from the hearing as he recalled them.
In sum, not only did I get a case dismissed on the phone of the bathroom floor, I made the dismissal stick, at least in part, because it was from the bathroom floor.
Let’s keep flushing those banksters’ cases, folks. Next time I call for a hearing, maybe I’ll do it from the bathroom, and maybe I’ll add some sound effects to my argument. “Judge, this is what you should do with the bank’s case. Swoooosh.”
And any banksters who want to take more photos, go right ahead. It will help me remember what happened.
This letter, received in today’s mail, is awesome on so many levels.
Presuming that you will be making a final distribution of cash to the homeless in advance of the holidays, enclosed is a check for $100.00. Please cash it and give it to someone you believe could best benefit from it.
Please do not feel obligated to reply to this letter. Per your blog post dated December 12, 2013 entitled “Christmas Party? Bah Humbug!” I realize that the “Florida Foreclosure Express” doesn’t take much of a holiday break and that you and your staff are required to continue to work full-time on behalf of us struggling homeowners.
THANK YOU for everything you do for consumers, and may God continue to bless you always.
Long before I became a foreclosure fighter and consumer advocate, I was a sports freak, with no team holding my heart like the Buffalo Bills. I’ll always remember watching Darryl Talley return two INTs for TDs in the 1990 AFC Championship Game, leading Buffalo to the first of four straight Super Bowls. 25 years later, Darryl Talley is in the news for different reasons. Talley lost his business, lost his home to foreclosure, and was on the verge of suicide when the public – Bills fans, mostly – raised $100,000 for him. $100K! In two days!
Here’s the story: http://espn.go.com/nfl/story/_/id/11952955/buffalo-bills-fans-raise-100000-darryl-talley-former-linebacker
I just *love* this story. It’s awesome to see the public reach out to help someone in this situation. This doesn’t happen nearly enough.
I find it a fun irony that this happened to a former Bills player (as opposed to someone from a different team). You see, the Bills have been my favorite team my whole life, and, in a way, epitomize who I am in foreclosure-world, too.
Back in 1990, I was a short, skinny high school freshman in Wall, New Jersey, a small town about 90 minutes south of New York City. In a sea of New York Giants fans, I was a vocal and proud Bills fan. Talley’s 2-TD day in January, 1990 set up the Bills against the Giants in Super Bowl XXV, a game Buffalo lost when a last-play field goal sailed wide right.
The following Monday morning in that high school was brutal. Hundreds of classmates were waiting for me to walk in so they could rib me. “Bills suck.” “Wide right.” I’ll always remember how the crowd didn’t dissipate until the homeroom bell rang, finally enabling me to open my locker! LOL. 25 years later, though, I still haven’t given up.
The ensuing three years, in fact, Buffalo went back to the Super Bowl, only to lose each time. Yet I won’t give up.
Buffalo’s last playoff game was so long ago it was last century, and the ending was so brutal it has a widely-known nickname – the Music City Miracle. Yet I won’t give up.
I carry that perseverance and “never say die” attitude with me every day to foreclosure court, too. When the system kicks me in the face, I get back up and come again. Never give up. Maybe it sounds silly, but you might have to be a Bills fan to truly understand.
Anyway, I’m not surprised see Bills fans raise $100,000 for Darryl Talley in two days. After all, Bills fans don’t give up. Foreclosure fighters never give up.
I just wish the public at large showed this much care, concern, and compassion for everyone in foreclosure, not just a former athlete. After all, you shouldn’t have to be a former sports icon to enjoy the compassion of fellow Americans. At the end of the day, it’s not about being a Bills fan – it’s a matter of human decency.
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.
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).