Paragraph 22 Notice: To Which Address?

Florida’s Fourth District Court of Appeal just issued a decision in Blum v. Deutsche Bank Trust Co., clarifying a foreclosing lender’s obligations under paragraph 22 of the standard, Fannie Mae mortgage.  No, this opinion didn’t deal with my pet argument regarding the content of the letter.  This time, the appellate court ruled the paragraph 22 notice had to be sent to the property address unless the borrower designated a different address to send payments.

So what does this mean, as a practical matter?

If the property being foreclosed is located at 123 Main Street, and the case goes to trial, then the paragraph 22 notice better be addressed the homeowner at 123 Main Street.  If the notice is sent to any other address, then the lender better have evidence that the borrower instructed it, in writing, to send notices to that other address.  Otherwise, under the terms of the parties’ own contract, the lender did not comply with paragraph 22, and dismissal is required.

Within minutes of this decision coming out, I won a trial based on this exact argument.

Put this arrow in your quiver, folks.  It works.  :)

Oh, and note the citation to Holt?  That’s why I worked so hard to convince the 4DCA to rule that paragraph 22 non-compliance requires dismissal.  Now that one such decision so holds, they should all follow suit.  :)

Mark Stopa

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“Penalty of Perjury”: More 702.015 Fun

What does it mean to be “under penalty of perjury?”  When signing a document under “penalty of perjury,” what information is required to be included with/on that document?

The answer to these questions is a significant, ongoing, hotly-contested issue in foreclosure world throughout Florida courtrooms.  After all, the certification requirement of Fla. Stat. 702.015 requires all foreclosure complaints filed after July 1, 2013 contain a certification “under penalty of perjury,” and banksters have filed all sorts of “certifications” purporting to comply with this requirement.  (One could argue the banksters do this intentionally to avoid actually being subject to the penalties of perjury, but I digress.)

Last week, I posted a Petition for Writ of Certiorari addressing other requirements of Fla. Stat. 702.015.  Today, I’m discussing what the banksters have to do to file a certification “under penalty of perjury” consistent with the statute.

The Petition is being filed in a case called Hummer.  This was a lot of work on a novel issue for which little/no case law exists, but I smile at the prospect of litigants and judges throughout Florida referencing the banksters’ obligations to file 702.015 certifications under penalty of perjury by citing Hummer.  :)

And if it seems like I’m doing several such petitions based on Fla. Stat. 702.015 all at once, that’s no coincidence.  With 3-4 petitions all being filed around the same time, the issues addressed therein will be hard for the 2DCA to ignore.  :)

Mark Stopa

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The Anatomy of a PCA

Handling appeals on behalf of homeowners is an enjoyable and important aspect of my foreclosure defense practice.  You see, it’s one thing to go into court and make good arguments; it’s another for that judge to know you can prosecute an appeal (and win) if the judge doesn’t follow the law.  Just the other day, for instance, I cited a published appellate decision to a trial judge.  I was the counsel in that appeal, she was the judge, and her ruling was reversed.  Being able to do that is invaluable.  :)

Anyway, this post isn’t being written to brag.  If anything, it’s precisely the opposite.

Handling appeals is hard.  Really hard.  No matter how good you are, you’re going to lose some that you’re convinced you should have won.  That’s frustrating enough, but it’s 10 times worse when you lose via a “PCA.”  That’s when an appellate court does not write a written opinion, but simply issues a “Per Curiam Affirmed” decision which approves the lower court’s ruling without explanation.

This is a hard dynamic for the typical homeowner to understand, so I wanted to post an example.

Many months ago, a homeowner from Palm Beach came to me with what I thought was a great fact pattern.  She lost at trial (I wasn’t trial counsel) even though the original Note was sitting in a different court file, initiated by a different plaintiff, at the time suit was filed.  How could Plaintiff have been the “holder” (requiring possession of an original, endorsed Note) at the time suit was filed where that Note was in a different court file initiated by a different plaintiff?  They couldn’t.  But the law requires that they were.  See McLean v. JP Morgan Chase Bank, N.A., 79 So. 3d 170 (Fla. 4th DCA 2012).  So I took the case and filed an appeal.

Here was my Initial Brief, spelling out that argument.

In its Answer Brief, did the Bank show I was wrong?  Did it show it was the holder when suit was filed?  Heck no.  The bank didn’t even try to argue it was the holder, abandoning (and implicitly conceding) that concept altogether.  Instead, it made an entirely different argument, contending it had standing based on an Assignment of Mortgage.

But that argument was a clear loser – at least as I saw it.  After all, the assignment upon which the bank relied only conveyed the mortgage, not the Note, and the Fourth District had just issued a decision explaining such assignments are ineffectual as a matter of law.  See Bristol v. Wells Fargo Bank, 137 So. 3d 1130 (Fla. 4th DCA 2014).  Additionally, that assignment conveyed nothing because the assignor had already assigned the Note and Mortgage two years prior to a different entity.  As such, I filed this Reply Brief, showing why the bank’s lone argument for standing was clearly wrong.

The 4th DCA took 9 months to rule (even after all the briefs were filed), yet here was what I got the other day:  a PCA.  One piece of paper, no explanation, just “affirmed.”  You lose.  Goodbye.


How?  Why?  How could anyone conclude I lost that appeal?  Those are the thoughts every appellate attorney has upon receiving a PCA on a fact pattern like that.

The knee-jerk reaction of any appellate lawyer, upon receiving a PCA, is to draft a semi-angry motion for rehearing, telling the appellate court how wrong they were.  I know that feeling.  Anyone with experience drafting appeals has felt that way.  Heck, even the appellate judges know we feel that way.  It’s human nature.

Over time, I’ve learned to resist that temptation, let things sit for a few days, and re-assess.  Can I envision any version of the facts that justified ruling against me?  What was the other side’s best argument?  If I had to argue their position, could I understand why I lost?  If so, then it’s not worth doing a motion for rehearing, particularly on a PCA – you just have to accept, as hard as it is, that you can’t win them all.

On this appeal, though, I just don’t see it.  I can’t see how that one was affirmed.  So I wrote this Motion for Rehearing.  Three pages.  Short and sweet.  Unless the 4th DCA reverses its ruling on rehearing, that’s the fact pattern I’ll remember years from now … original note sitting in a different court file, initiated by a different plaintiff, the bank essentially admits it’s not the holder and relies on an AOM, yet that AOM only conveyed the Mortgage, not the Note, and the assignor had conveyed the Note/Mortgage to a different entity (not the plaintiff) two years prior.

Even with that, motions for rehearing are rarely granted.  Hence, chances are, that’s what I’ll remember from this appeal years from now.

This post isn’t made as a criticism of anyone.  It’s simply a real-life example, showing homeowners how hard it is to win in the appellate court – even when you have a great fact pattern – and how frustrating it can be to go down this road.  This, more than anything, is why I fight, but, at the same time, is why I’m pragmatic about the battles I choose.

More than anything else, I hate this for you, Leslie.  Your attitude was wonderful throughout this process.  All the best to you and yours going forward in life.  :)


Mark Stopa

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Certification Requirement; Fla. Stat. 702.015

Effective July 1, 2013, the Florida legislature enacted Fla. Stat. 702,015, requiring all residential, mortgage foreclosure plaintiffs file a “certification,” under penalty of perjury, contemporaneous with the complaint.  Under the plain language of the statute, this certification must contain specific information, as set forth in the statute.

This statute has been in place for nearly two years, with tens of thousands of foreclosure lawsuits adjudicated throughout Florida since that time, yet there is no appellate court case law on the statute.

I’m hoping to change that.

Here’s a Petition for Writ of Certiorari I’m about to file in the Second District.  A handful of other, similar petitions are in the works.  :)


Mark Stopa

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Gainesville Trial Transcript

Rumor has it that I’m the subject of gossip in foreclosure-land yet again, this time based on a judge in Gainesville threatening to hold me in contempt mid-trial, then ruling I was not allowed to present any evidence in the defense of the case.

I make no commentary at all about what transpired.  None.  That said, I deem it appropriate to post the trial transcript to eliminate any doubt about what happened (and did not happen).

Mark Stopa

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Expediency in Foreclosure Court

As courts throughout Florida strive to push through as many foreclosure cases as possible between now and the end of June (when funding for the senior judge system runs out), it’s as good a time as any to remind everyone of this quote from the Florida Supreme Court:

The question of expediency is for legislative, not judicial, consideration.  When expediency is allowed to control judicial conclusions, we shall have abandoned government by rule of law in favor of government by rule of men and our legal foundations will be as shifting as the sands and as changing as is the trend of public opinion.

Kilgore Groves, Inc. v. Mayo, 139 Fla. 874 (Fla. 1939).

Mark Stopa

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Discovery Before Summary Judgment

Many litigants know the law generally requires discovery be complete before a summary judgment hearing.  There are exceptions, though, and failure to know them can leave you holding the bag.

Here’s an appellate brief from a bankster, arguing my summary judgment victory should be reversed because discovery was incomplete, and here’s my retort, showing they’re wrong because the discovery would have no bearing on the court’s ruling and the bank wasn’t diligent in pursuing that discovery.

Take heed, friends.  Diligent action is required in foreclosure-land, even with respect to discovery.  :)

Mark Stopa

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Carlton Fields Weighs in on Fla. Stat. 559.715

Carlton Fields is one of the most prominent law firms in Florida, representing banksters in foreclosure cases.  They recently wrote a blog on Fla. Stat. 559.715, entitled An Unlikely Condition Precedent to Foreclosure in Florida.  Why should we care what Carlton is saying?  Well, they’re giving advice to banksters, and they’re trying to combat my 559.715 arguments (shame on them for not citing me in the blog, but I digress).  So let’s take a look.

The plain language of Fla. Stat. 559.715 requires creditors to give written notice of an assignment of debt at least 30 days before “any action to collect a debt.”  One of the primary bones of contention – an argument I’ve had many hundreds of times in recent years when advancing this 559.715 defense – is whether mortgage foreclosure is an “action to collect debt.”  Carlton argues it is not, calling my 559.715 defense “misguided” because an in rem foreclosure lawsuit is not an action to collect a debt.  To support that position, Carlton cites two cases – Trent and In re Warren.  Frankly, I find that argument, with those case citations, terribly misplaced.

Trent was a 2007 decision from the Middle District of Tampa.  That case said that mortgage foreclosure was not an action to collect debt.  In 2012, however, the Eleventh Circuit decided Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d 1211 (11th Cir. 2012) and Birster v. Am. Home Mortg. Servicing, Inc., 481 Fed. Appx. 579 (11th Cir. 2012), two decisions which are both plainly contrary to Trent.  All three decisions are federal court cases, but the Eleventh Circuit is the appellate court for the Middle District of Tampa – a higher court.  So when a higher court issues a contrary ruling five years after a lower court opinion, I find any citations to Trent to be terribly misguided.

As for Warren, well, that was the 11th Circuit’s ruling in 2011.  It’s 2012 decisions are the current state of the law.

Perhaps more significantly, Florida’s state court judges are not relegated to case precedent from federal courts.  After all, in 2014, Florida’s Second District Court of Appeal – a state appellate court – issued its decision in Gann v. BAC Home Loans Servicing, LP, 145 So. 3d 906 (Fla. 2d DCA 2014).  In that opinion, the Gann court followed Reese and Birster, explaining how Trent is no longer the law.  That decision is critical because it’s the only case on point from Florida’s state courts (on the appellate level, anyway), so it is controlling on all state court judges in Florida.

Notice how Carlton doesn’t even mention Gann in its blog?  That omission is telling.  And the author of that blog knows about Gann – I tried a case with him on this very issue.

Next, note Carlton’s citation to Freire v. Aldridge Connors, LLP, 994 F.Supp. 2d 1284 (S.D. Fla. 2014)?  That citation is important, as is Carlton’s admission that foreclosure is an action to collect debt where the foreclosure complaint includes a request for a deficiency.  Carlton might try to deny they’re conceding that point, but read the blog – they’re encouraging their bankster clients to file foreclosure complaints without a request for deficiency.  Clearly, Carlton realizes 559.715 applies when a bankster files a mortgage foreclosure complaint and requests a deficiency in the Wherefore Clause of that Complaint.  After all, that’s the precise holding of Freire, and there is no case law to the contrary.

Why does the inclusion of a request for deficiency matter?  Well, I’d estimate that 95% of the foreclosure lawsuits currently pending include a request for a deficiency in the Wherefore Clause of the Complaint.  It’s exceptionally rare I see complaints which omit this request.  Hence, the way Carlton Fields (a bankster firm, mind you) presents this argument in its own blog, 559.715 applies in the overwhelming majority of mortgage foreclosure lawsuits in Florida.

Finally, Carlton acts as if banksters can comply with the 559.715 notice requirement if they give a notice of change of servicer.  Again, I think that argument is wrong.  Nothing in the plain language of Fla. Stat. 559.715 requires a notice of change of servicer.  In fact, the word “servicer” is not even mentioned in the statute.  Instead, the notice that must be given is a notice of “assignment of the debt.”  The only Florida appellate decision that mentions 559.715, Burt v. Hudson & Keyse, LLC, 138 So. 3d 1193 (Fla. 5th DCA 2014), supports that position.  Here, check out the way the Fifth District characterized the issue – not as a notice of change of service, but “she never received notice from H&K or its predecessors in interest that the debt had been assigned.”  That’s the key phrase – the “debt had been assigned.”  Not a notice of change of servicer, a notice of assignment of the debt.

Bear in mind as well, the obligation to give written notice of a change of service is set forth in a totally different statute, contained in federal statutes called the Real Estate Settlement Procedures Act (“RESPA”).  Many of the notices of change of servicer that the banks file actually mention RESPA within the body of those notices.  That’s different, in my view, than giving notice of the assignment of the debt.  That’s why no case law characterizes it the way the banksters want to.  None.

In sum, one of the most prominent law firms in Florida wrote a blog on 559.715, trying to support the banksters’ position.  Yet they omit the controlling Second District decision in Gann, cite two cases which are no longer the law, and (at least implicitly) concede the statute applies in almost all foreclosure complaints (which request a deficiency in the Wherefore Clause).  Most importantly, perhaps, they cite no case law contrary to the position I’ve asserted so many times throughout Florida … a position now joined by 43 different judges (and counting).

There’s no way to know for sure how Florida’s appellate courts will come down on this issue.  With each passing day, though, as more and more of the heavy hitters weigh in on the issue, I’m increasingly confident our position is correct.  Fla. Stat. 559.715 is a defense to foreclosure in Florida, and dismissal is required where the notice is not given.


Mark Stopa

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Saving Money: a Personal Story

My last blog, encouraging homeowners to save money, prompted the following message from a client, a woman named Jennell.  I’m re-posting that message here with her consent.

As you read this message, note two things.

First, this is just one example of what homeowners facing foreclosure go through every day.  Countless consumers endure similar struggles.  So while it’s easy to say “save money,” this is what people are going through right now, every day.

Second, notice her incredibly positive attitude and perseverance, despite the day-to-day struggles?

By all means, though, let’s all throw these “deadbeats” out of their homes faster, shall we?  I mean, sure, the Florida legislature isn’t going to renew funding for senior judges come July 1, 2015, so let’s push through as many foreclosure judgments as we can before then.  Sigh.

Here, read on …


We have a construction business and have been hit really hard. We lost a house we built in Seminole Heights that was supposed to pay a big chunk of our mortgage just when the market took that sharp dive. We have been trying to play catch up since that time. While other contractors have work, unfortunately, we are just getting by.  My husband has been subcontracting work from other contractors who have some work, but not a lot. He does excellent work, but can’t compete with contractors that have money to sit on and wait to get paid. A lot of the big jobs out there that can get us ahead, make you wait 30 days or more to get paid…we can’t take on those jobs. Our credit is shot so we cannot get a loan or line of credit.

We live week to week and have for years…the whole time we have been in foreclosure. There are weeks that are good, but when I say good, I mean we are able to pay the bills we are behind on. Then there are weeks of no work and we are falling behind on basic bills all over again. We have not been able to get to the place where we can save. Right now we have to come up with $7,000 for property taxes on my parents home by March, or their home will be sold in auction. My mom is disabled, so when we built their home we made it handicap equipped…they need their home. My husband doesn’t have any employees because he cannot afford to pay them. He works alone, so that limits the size jobs he can bid on. Everyone of our family members who would help, are struggling themselves.

I help care for my parents and my mom who is disabled, so I’m needed here. Every day we pray and believe that we will find our own jobs so that we won’t have to sub off other contractors so we can save, but we haven’t been the fortunate ones who have been able to find the jobs we need to get us to that place. If we lose the house, we have absolutely no where to go, no money to put down. We are not only worried about us, but my parents, and our pets, who are part of the family. The worry never ends.  We wake up every morning praying that we will get that break and the jobs will come poring in, but we are faced with the reality that the economy hasn’t recovered and it will take a miracle for all of this to work out for us. We have a son in college who lives at home, this will disrupt his studies.

We are doing everything we know to do, and we refuse to give up. We have learned to put our faith and trust in God because He is the only one that can work it all out beautifully. One thing I can say, is that though all of this, God has carried us, and during this time we have been walking through this nightmare, our electricity has not been cut, we have not gone without food, and we do have a running car and work truck; that is enough to keep us believing that better days are coming.

Mark, I don’t know what we would have done had God not put you in our path, that too was a miracle for us. We appreciate all the work you have done and are doing. You are a good man and God will bless you, your family and staff abundantly for all the families’ lives that you have touched with all your hard work and sacrifice.  We appreciate you more than words could ever express. Thank you!!!


No, Jennell.  Thank you.  Messages like this inspire me … and all of us on the good side to keep going.  :)


Mark Stopa

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Foreclosure Defense 101: Save Your Money!

I feel like I owe everyone an apology.  In recent months, I’ve gotten so engrossed in some of my pet defenses – Paragraph 22 in the standard, Fannie Mae mortgage, Fla. Stat. 559.715 (requiring lenders give written notice of assignment of debt before filing suit), face-to-face counseling in an FHA Mortgage, and the statute of limitations, among others – that I’ve forgotten to remind everyone about the most basic aspect of foreclosure defense … saving money.

Sure, it’s fun to wax poetic about the statute of limitations and daydream about the possibility of free houses.  It’s equally enjoyable to get foreclosure lawsuits dismissed based on paragraph 22 non-compliance or Fla. Stat. 559.715 violations.  For many homeowners, though, these concepts can’t or won’t work.  That’s why, at it’s core, the most basic concept of foreclosure defense is saving money.

I can hear you already.  “How can I save money when I’m in foreclosure?  If I had money, I wouldn’t be in foreclosure!”

I hear you, but I can’t help but think … How can you NOT save money?  After all, when else in your life will you be able to live rent-free and mortgage-free for years?  Yes, years.  That’s the likely byproduct of going into foreclosure, defending your case (with competent counsel, of course), and living in your house during the pendency of the suit – living mortgage-free for years and having years to save money.

I was reminded of this earlier today, when a client told me she filed Chapter 7 bankruptcy a few years ago, eliminated her debt, and has been saving money while living in the house during the pendency of the foreclosure lawsuit.  But not just a little money – $50,000 worth.  If you’re going to get foreclosed, that’s not a bad sum of money with which to go start over in a new home, eh?  :)  And all by doing nothing except defending your foreclosure suit and saving money.

$50,000 sounds impossible, eh?  Well, $1,500 per month (a typical mortgage or rent payment for many folks) for 36 months is $54,000.  Everyone’s circumstances are different, of course, but if you’re diligent about putting that money aside, it’s totally do-able.  Heck, I’ve had clients tell me they’ve saved $100K, $200K, or more.

Years ago, I blogged about that concept.  Bankruptcy doesn’t have to be part of the equation, either – for many, it’s simply a matter of saving money.

Hence, I may spend a lot of time blogging about specific legal defenses, but please never forget … the best and most important aspect of foreclosure defense is saving money.  At the end of the day, that’s also the one thing you can control.  After all, you can’t control whether your mortgage has a paragraph 22 in it, when the paragraph 22 notice you receive has defects, whether the judge on your file agrees the letter is defective, or whether the lawyers prosecuting the case for the bank will do so diligently … but you can control how much money you save while the case is pending.

Save your money, folks.  If you do, and you do wind up getting foreclosed, it won’t feel so bad if you’re the client telling me she saved $50K towards a new house.  :)





Mark Stopa

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