Earlier this month, the Fifth District issued a decision in favor of the banks on a paragraph 22 case. The Fifth District’s decision is very short and offers little insight on why the court ruled how it did. Nonetheless, banksters are trying to go behind the content of the decision to apply it in a much broader way than the Court ruled. That entire concept is wrong. Earlier today, I had occasion to explain how appellate case precedent works in this context to a local judge. Then I realized that if this judge (a very bright scholar) was unaware of this line of cases then most lawyers and judges in foreclosure-world probably are, too (making this concept blog-worthy. So here goes).
The entire sum and substance of the Fifth District’s recent decision on paragraph 22 is as follows:
Astoria Federal Savings and Loan Association appeals the summary judgment rendered by the trial court in favor of Danielle Kaufman in this mortgage foreclosure case. The basis for the summary judgment was the trial court’s determination that Astoria did not comply with the notice of default requirement of paragraph 22 of the mortgage, which required that Astoria give Kaufman notice of the default and inform her of the steps she could take to cure the default. Astoria argues that the summary judgment should be reversed because the record reflects that it did send notice in compliance with paragraph 22 of the mortgage. Our review of the record reveals that Astoria is correct and that the notice that it provided to Kaufman was in compliance with paragraph 22. Therefore, we reverse the summary judgment under review and remand to the trial court for further proceedings.
Astoria Fed. Savings and Loan Assn. v. Kaufman, 2015 WL 24109 (Fla. 5th DCA 2015).
Under basic notions of appellate law, Astoria can be used as legal authority for other cases only for what that decision says. For instance, if someone wants to argue Astoria supports the argument that a paragraph 22 letter must “comply” instead of “substantially comply” (since the decision says the letter “complied,”) then that would be fine. After all, the opinion says “complied.” However, litigants cannot go to the public record, pull the paragraph 22 letter, and argue that the 5th DCA found that letter complies, so the letter in another case complies, too. As the First District explained in Shaw v. Jain, 914 So. 2d 458, 461 (Fla. 1st DCA 2005). :
Jain relies on Parkerson v. Nanton, 876 So. 2d 1228 (Fla. 1st DCA 2004), a prior decision of this court which he maintains reaches a contrary result on similar facts. However, the opinion in that case contains no recitation of the testimony. A prior opinion has precedential value only to the extent that it is possible to determine from the opinion that the material facts are sufficiently similar. See Cusick v. City of Neptune Beach, 765 So. 2d 175, 177 (Fla. 1st DCA 2000) (citing Forman v. Fla. Land Holding Corp., 102. So. 2d 596 (Fla. 1958)); Adelman Steel Corp. v. Winter, 610 So. 2d 494 (Fla. 1st DCA 1992). Moreover, ‘it is elementary that the holding in an appellate decision is limited to the actual facts recited in the opinion.’ Adams v. Aetna Cas. & Sur. Co., 574 So. 2d 1142, 1153 (Fla. 1st DCA), review dismissed, 581 So. 2d 1307 (Fla. 1991). We may not look beyond the opinion, itself, in our search for the material facts. See Adelman Steel Corp., 610 So. 2d at 502-503 (stating that it impermissible to look to the record in the prior case for purposes of ascertaining the facts). Accordingly, in the absence of any recitation of the facts considered material to the court in Parkerson, we cannot determine whether the facts were sufficiently similar to those with which we are presented. As a result, Parkerson provides no precedent for our consideration.
Similarly, in Adelman, quoted in Shaw, supra, it was “argued by the employers and servicing agents in the cases before us that the record in Perez reveals the internist had not been authorized by the employer and carrier, and thus the Perez opinion should not be read as prohibiting ex parte discussions by the employer and carrier’s representatives with authorized physicians.” 610 So. 2d at 502. The Fifth District “reject[ed] this interpretation of the Perez opinion because it is contrary to the basic rules governing analysis of an opinion to determine its controlling principles.” Id. As the First District explained:
It is impermissible, therefore, to go behind the facts stated in an opinion to find a basis for distinguishing or limiting its intended holding. As Professor Goodhart has stated in his classic law review article on this subject cited in the above quote, ‘The first and most essential step in the determination of the principle of a case is, therefore, to ascertain the material facts on which the judge has based his conclusion.’ 40 Yale L.J. at 169. Explaining the rules for determining which facts are material, the article observes, ‘If there is an opinion which gives the facts, the first point of notice is that we cannot go behind the opinion to show that the facts appear to be different in the record.’ Id. at 170. The article elaborates on the importance of confining the case analysis to the material facts perceived by the authoring judge as discerned from the judge’s discussion of the facts in the opinion, and concludes that while many facts recited may be immaterial, all unrecited facts are immaterial to the decision
The Second District’s decision in Jaylene, Inc. v. Moots, 995 So. 2d 566 (Fla. 2d DCA 2008), sets forth this same principle of law. In that case, the Second District ruled:
McKibbon does not compel a different result here. The McKibbon case is controlling only to the extent that it is possible to determine from the court’s opinion that the power of attorney at issue in that case was similar to the POA held by Ms. Moots. See Shaw v. Jain, 914 So. 2d 458, 461 (Fla. 1st DCA 2005). But the opinion in McKibbon does not set forth the language of the power of attorney under review in that case. Thus, McKibbon is not controlling here …
Under this line of cases, banksters in foreclosure cases are prohibited from showing judges what the letter in Astoria may have said. Make sure you call out the banksters when they try to get away with this (which they will). I know I will, and I’m confident the good judges in Florida won’t let them get away with it.
Posted in Main | No Comments »
Representing homeowners in foreclosure has been my life’s work since 2008. It’s what I do. It’s what I was born to do. It’s what I love.
Whether it’s new, cutting edge legal arguments like paragraph 22 in the standard Fannie Mae mortgage (try googling “Mark Stopa paragraph 22″ – crazy how much stuff comes up), Fla. Stat. 559.715 (there’s still no published appellate decision in Florida on that issue, but I’m up to 41 different circuit court judges who have agreed with me), or face-to-face counseling in an FHA mortgage, “novel” procedural attacks like homeowners seeking summary judgment in a foreclosure case, or simply making Florida judges realize that bona-fide defenses to foreclosure do exist, I’ve spent much of the past five years of my life doing everything I could to help Florida homeowners avoid foreclosure. In fact, next month, I should hit dismissal #800 – that’s 800 foreclosure cases I’ll have gotten dismissed since I started doing this.
But this isn’t about me. It’s never been about me. It’s about people. It’s about the people of Florida – the people for whom those cases have been dismissed. People down on their luck. People who got dealt a bad hand in life to no fault of their own, for one reason or another.
Over the past five years, I’ve seen the stories of Florida homeowners. Their stories have driven me. Their stories have motivated me to stay the course. To work longer. To share my ideas on this blog. To write that 50-page appellate brief two days before Christmas. And, yes, to give away a free house.
After NBC and CBS were gracious enough to air stories about my free house giveaway – here, here, and here – I received hundreds of letters. I knew Floridians were hurting – after all, representing them is what I do, so I’ve seen their stories first-hand. Yet nothing could have prepared me for these stories. So many people are living in heartbreaking, unimaginable circumstances. Choosing one “winner” among them has been one of the hardest things I’ve ever had to do. I have never cried so much in my life. (Yeah, I said it. I cried. Repeatedly. Try reading these stories and not crying. Even for a guy, it’s impossible. Then realize that the letters I’ve posted here are just a small fraction of the letters I received.)
How can I possibly decide who is most deserving of a free house? Who am I to push someone’s letter aside and say “no, you’re not going to win.” There are SO many deserving people. As my daughter, Payton (age 9), said, we want to give a free house to everyone.
Obviously, though, that’s not possible. I can only choose one. That said, instead of simply choosing one, I decided to post a number of stories on this blog in the hopes that my doing so will inspire other organizations to get involved and help. Please, folks … these are some of the worst stories in the Tampa bay area. These folks need help. Read their stories. Look at their pictures.
Seriously, I mean it. Read these stories. Click on the links. Look at those faces. These are the people I fight for. These stories are my inspiration.
I truly hope my posting this blog will inspire others to help these people. I can’t post them all, but here are many of the stories that touched my heart, followed by my announcement of the finalists for the free house.
As I read through the hundreds of letters, I found myself putting them into different categories. Since foreclosure defense is what I do, the letters with stories of families facing foreclosure certainly moved me.
The Christys fought stage IIA melanoma, job loss, and a broken back while staving off foreclosure. Don’t give up, y’all. I’m glad I got that first case dismissed, and if that bank pops its head up in the future, I’ll do my darndest to do it again.
Jacqueline is just 14 and has already endured a grandmother’s suicide and, now, her mom turning over the family house to the bank “cash for keys.” Your mom’s not a failure, Jacqueline. She’s awesome. But you already knew that.
Cindy Wagner’s husband has faced a brain injury, permanent disability, and foreclosure. Look at their family photo – these are the faces of foreclosure. These are the types of people for whom I fight every day in court.
Reading stories like this is hard enough, but the pictures really bring it home for me. That’s the thing Florida courts have so often overlooked, in my opinion. Foreclosure isn’t a number on an excel spreadsheet … it’s not something to clear off a docket as quickly as possible … it’s a family with a home and a broken dream … a sad, painful story.
Everyone throws themselves a pity party now and again. We all do it. But you think your life is rough? Try being Jennifer Hastings. A single mom, her 17 year old son has a 78% chance of surviving his battle with cancer. 78% might sound like good odds in some contexts, but a 22% chance of death? For your child, as a single, working mother? Ugh. Bless you, Jennifer, as you work towards you degree while your son bravely fights cancer. My thoughts are with you, and I’m happy your daughter is coming back from St. Louis so you’ll all be together again.
Tara Marra hardly has it any easier. Her brother wrote this story on Tara’s behalf, showing Tara as a devoted single mom to her son, Tye, who cannot talk or speak and requires round-the-clock care. 24/7 care? I can’t imagine.
Well, I sort of can. I’ve known Cathy Bassi for many years now. In fact, if you received a flyer from Stopa Law Firm after being sued for foreclosure at any point in the last few years, Cathy is probably the one who pulled your name from the public records. She’s been working for my firm for a few years now – not from my office, but from her house, in the middle of the night – the only way she can work since her 25 year old daughter requires 24/7 care and survives on an oxygen machine (and Cathy herself is deaf). Kyla gives a fantastic high-five, though. I’m sorry I couldn’t choose you for the free house, Cathy, but let me know when the next foreclosure case comes – I’ll do my best to get it dismissed for a third time. And remember – at some point, the statute of limitations might just answer your prayers of a free house.
Kara Wilke is a single mom searching for a home for her four beautiful daughters, a survivor of domestic violence, and works 2 jobs. I’ll be praying for your family, Kara, hoping that Lillie manages to cope through those anaphylactic reactions. Your mom is amazing, kids – I hope you know that.
Jamie Drew is a single mom, facing aggressive cancer, and lives in her father’s 850-foot, mold-infested condo. Hold your head up, Jamie. You’ll find the help you need for you and Bailey – she’s such a cutie!
Tamesha Stubbs has lost her grandfather, father, husband, home, and life savings and is now dealing with multiple sclerosis. Keep smiling, Tamesha – you’re such an inspiration to your beautiful daughter, Trinity, and all the rest of us.
You think those single parents have it tough? Imagine being a single grandparent, unexpectedly forced to raise your child’s kids.
Tammy Rosian’s daughter was killed by a drunk driver in 2008. Tammy’s granddaughter, Summer, was in the car and has endured countless surgeries since the accident. Now 53, Tammy is single and forced to raise Summer on her own, through all the medical complications, while facing foreclosure, all on an income of $9.00/hour. This was a tough one to exclude as a finalist, Tammy. I hope others step up to help you … like maybe the bank that’s seeking to foreclose. After all, would it really be so bad if the banksters forgave a few of these mortgages? You want everyone to stop hating you, banks? You want the public to stop taking their money to local credit unions? Step up to the plate here.
Sheila Diehl has four grandchildren to raise on her own, all age 6 and under, after their dad committed suicide (in front of them!) and their mom lives on the streets. Those kids are lucky to have you, Sheila.
Since 2004, Tina Holbrook has lost her husband, two brothers, her home and most of her belongings, and is now raising 4 grandchildren on her own. You inspire us all, Tina.
I received many stories from parents worried their disabled children won’t be able to take care of themselves after the parents die.
Christian Rucker has Williams Syndrome and his parents fear for his future. Yes, Manny and Larissa, I’d love to meet Christian… soon. And I hope this post helps your goal of increased awareness about Williams Syndrome.
Tim and Angela Falleur have four small children – a beautiful family – yet all four kids struggle with autism. No parent should have to worry that their four children will be institutionalized because they can’t care for themselves after their parents die. Who out there wants to step up and help this family?
Some of the most tear-jerking stories were those submitted by people who want a home not for themselves, but to help others.
Eric Wilson of The Renaissance Project cashed in his life savings to raise four Russian boys, re-defining the term “American dream.” I wish I could do more to help, Eric, but you’ve done an awesome job with those boys and others need my help more. Thank you, though, for reminding us what America is all about.
Heather Beaty lost her “mom to God, her husband to betrayal, her house to Katrina, and her job,” yet rescued two “drug babies” from foster care and adopted them. Yet she says my generosity is “overwhelming and unforgettable?” No, Heather – what I’m doing is nothing compared to what you’re doing for those two, adorable children.
Marilyn McFalls was beaten, molested and tortured as a child, endured the foster care system, has been shot twice, run over by a care twice, and suffered a traumatic brain injury, yet now seeks a house for two adopted children to whom she is giving a new lease on life. You and Gene are a true inspiration, Marilyn. I know your dreams will come true.
Pastor T. Alexandra Zanon wants a home to assist families in crisis, a mission to which she has devoted herself since 2010. You broke my one-photo rule, Pastor, but with this story, I more than forgive you.
Some of the letters I received described people who deserve a second chance at life.
Brandi Johnson became addicted to drugs after her mom raised her in that environment. (Lest you judge, how certain are you that you wouldn’t have done the same if raised that way?) Brandi lost her mom to suicide and her three, beautiful daughters were taken away because of her addiction. But Brandi has been sober for three years now and needs a stable home to get her kids back in her care. I can’t give you this home, Brandi, but as I told you, I’m happy to support you however else I can. I believe you should get those girls back, and I’ll sign my name on any paper you want saying so.
Perhaps the most heart-wrenching letters were those I received from children.
Cody Mounce is 17, lost his mother and grandmother to cancer, and wants a home to re-pay the family who took him in. That family isn’t rich, either – Mike and Marina are sharing a bedroom with their child so Cody can live with them. This was a hard story to turn down, Cody, but I hope someone reading this will want to help you.
Nicolas Roberts is raised by his single mom, a mom who has “stopped smiling” because of an October, 2014 foreclosure and medical problems. Nicolas just wants to “see [his] mom happy” and play in the NFL one day. Don’t give up, Nicolas. With your positive attitude, you’ll make your mom smile again. Heck, maybe one day I’ll be writing about you in my fantasy football articles.
Julia Bray is 14 and is tired of sleeping on the floor or on a couch. Stories like this really get me upset when I think about foreclosure. So many homes lost. So many families thrown on the streets. So many children living in ways children shouldn’t have to live. I’m sorry you don’t have a bed to sleep in, Julia.
As a working father, I really struggled with the stories of Dads who are physically unable to work. This hits home for me because my Dad went on permanent disability when I was in 7th grade. Suffice it to say I hope the doctors can fix your hydrocephalus, Barrett Tootle.
Stories from military families are always tough, but a military family that served this country and now devotes their lives to helping others? Thank you for your service, Brad and Amber.
Many letters I received depicted handicapped people in a home that was not handicapped-accessible. Who wants to give Gaye Moran a wheelchair-accessible home? She has MS and is confined to a wheelchair, yet does not have a wheelchair-accessible home. I have to think there’s a builder/construction company that can see the benefit/goodwill of giving a home to people in this type of situation.
Some of the most inspirational letters I received were from people asking for a home not for themselves, but for others.
Angela and Bern Rudisill live in a 900-square foot home with their two children, yet they opened their home to a family of five, the Helget family, after they were evicted from their apartment in Minnesota in the dead of winter. Jamie Helget has had cancer three times, and the Helgets have nowhere to go, but Bern Rudisill was just laid off and fears he can’t house the Helgets forever. 9 people in a 900 square foot house, yet the Ridisills wrote the letter not for themselves, but for the Helget family. Wow.
Dorothy A. Izmirlian, D.O., P.A., writes on behalf of her employee, Kara, a single mother of four children and survivor of domestic violence. Dorothy was inspired by Kara’s Christmas list, which did not seek any gifts, but instead asked “for my family to continue to be blessed, and grow stronger with each day.” You’re not the only one inspired, Dr. Izmirlian. Thanks for sharing.
Mary Pizzurro lost one child to a nerve disease and another son suffers from that same disease, yet didn’t submit a letter for herself. Nope, she nominated Aidil Chappell, her children’s home health aide, and Aidil’s husband, an EMT, for a home. How wonderful to see a woman who could have easily submitted a tear-jerking story of her own instead submit a letter for a young couple. Thank you for spending your lives helping people, Aidil and Ricky.
Amber Banks writes this gut-wrenching story on behalf of her friend, who died earlier this month, leaving behind 9 children, whose house just burned down, destroying all their belongings. Just awful stuff (yet, incredibly, yes, they’re not even a finalist – that’s how tough this decision-making process has been). I have to imagine someone can step up and help this family.
As indescribably sad as those stories were, above, those aren’t the finalists. Here are the five finalists for the free house award, one of whom I’ll choose for the free house in the next few days:
#1: Debbie Kemmett.
Here’s Debbie’s letter. I can’t do her story justice, but I’ll try to summarize.
The Kemmetts are facing foreclosure (in a home with no AC/heat). Worse yet, 2 of their 3 children have cystic fibrosis. That alone means those children aren’t likely to live beyond their 40s. The youngest child, Ryan, had a 5-organ transplant in 2005 (liver, intestine, pancreas, stomach, spleen), becoming the first child in the world with CF to receive a multi-organ transplant. A website has been dedicated to the story, http://www.ryanshome.info, and Ryan’s picture appears on a post-it for Children’s Hospital Boston.
As if that weren’t enough, the bad home conditions (mold) are exacerbating the childrens’ health problems.
Here’s a picture of the Kemmett children:
#2: Moriah Barnhart.
Moriah was the only person who had two different friends submit letters on her behalf. Read the letters – this letter and this letter – and you can understand why.
Moriah is a single mother to two children, a son, Daylon, age 10, and a daughter, Dahlia, age 4.
Since 2012, Dahlia has been battling brain cancer. Moriah travels all around the country with Dahlia for experimental treatments, yet Dahlia’s prognosis is unclear. How unfathomable – to be a single mother, not knowing if your baby girl will live (or, if she does, for how long). Even as she endures her own struggles, Moriah inspires everyone around her. One friend called her a “true hero” for the compassion she exhibits for others suffering from cancer. For me, though, what pushed this story over the top, basically forcing me to make it a finalist, was Daylon.
I can’t imagine what it’s like for that little boy to go from school to school, moving constantly, with no steady home, as his mom devotes so much time to his sister’s brain cancer treatments. It’s so hard for Daylon that he asked his Moriah’s friend, Renee (one of the friends who submitted a letter) if things would be better for his mom if he didn’t exist, so she could just care for Dahlia. As if that’s not tear-jerking enough, check out Daylon’s story on utopia (in his handwriting, and remember – he’s 10):
I would wish for a Utopia. There would be no poor, homeless, sad or mad. No disease, just spread of goodness. None have more nor less of anything. There will be no worries or struggles. There will always be somebody there to help. There would be no damage done, therefore there will be no need for healing. For my Utopia would be the healing of all.
#3: Mark Keahey.
I can’t imagine what it would be like to be the head of a household and try to support my family while fearing irreversible, permanent blindness, as Mark Keahey fears every day. Combine that with having to raise to two special needs children, one with cerebral palsy, brain damage and an inability to ever live on her own (all a result of her birth father’s attempt to kill her), and a second child with spinal bifida (both confined to wheelchairs), and it’s more than any one person should have to endure.
Mark’s attitude, though, remains strong. I just love the words in his letter. “I want my wife and children to know that no matter what life throws at you, love conquers all.”
What a beautiful family, Mark. Thank you for the inspiration.
#4: Michelle Morales.
I came across several gut-wrenching stories of single mothers raising special needs children, and I posted a few of them above. Michelle’s story, though, really struck me as unique.
Michelle’s son, Landon, is completely non-verbal, g-tube fed, visually impaired, and has cerebral palsy. He requires round-the-clock care. As if that weren’t hard enough for a single mother, Michelle has lupus, a debilitating disease which leaves her fatigued regularly. Can you imagine having to take care of a child with Landon’s disabilities 24/7 – no breaks, ever – while suffering from your own disease? I can’t. Yet Michelle not only manages that, she created a non-profit foundation for families with special needs children.
Mr. Strong Foundation, founded by Michelle, has helped 15 Tampa-area families with special needs children by paying for therapies that insurance otherwise wouldn’t have covered. It is completely volunteer, and 100% of all proceeds raised have gone to support families with children like this.
Here’s a link to the website: http://mrstrongfoundation.org/. Let’s see if others will contribute to your foundation – they sure should.
Quite a story, Michelle. Quite a story.
#5: Felicia Smith
Felicia Smith submitted this story, but what really grabbed me was when I put myself in the shoes of her husband, Jonathan.
Jonathan’s wife and daughter both have a rare neuromuscular autoimmune disease called Myasthenia Gravis. The disease affects every aspect of their lives and confines them to wheelchairs. Jonathan, meanwhile, is a retired US Army Veteran and works three jobs to support his family, but even with that hard work, couldn’t prevent foreclosure in 2012.
Felicia wants a home so Jonathan would only have to work 2 jobs, not 3. Can you imagine? Working three jobs and taking care of a permanently disabled wife and daughter? Having already lost a home and car?
Reading this story from Jonathan’s perspective made me want to be a better man. And while that might not be a terribly scientific approach, it’s enough for him to be a finalist for the free house award.
Thank you, Jonathan, for making me want to be a better man.
I’m going to talk this over with my kids, take a couple of days to chew on it, and announce a winner (from these five finalists) in the next few days.
Thank you to everyone for entering. Your stories all moved me, and you’ve inspired me to keep pushing forward in my ongoing fight to help Florida homeowners avoid foreclosure. Stories like this are heartbreaking, but they remind us all what we’re fighting for.
If I didn’t choose you, please understand – this was impossibly difficult. And who knows, maybe I’ll do it again some time.
Posted in Main | 35 Comments »