Oral Argument: Paragraph 22

Here’s the video from an Oral Argument I had in Green Tree Servicing, LLC v. Milam, 2DCA Case No. 2D14-0660 on March 24, 2015.

The argument dealt with the sufficiency of a default letter under paragraph 22 of the mortgage.  I got the case dismissed in the lower court, and the bank was appealing.

Here’s the bank’s Initial Brief and here’s my Answer Brief, spelling out the arguments.

FWIW, I was comfortable enough with my position that I asked the judges to write a written opinion in my favor (as opposed to simply issuing a PCA, the typical result when the appellate court affirms the lower court).

I suppose we’ll see what happens.  :)

Mark Stopa

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Bye Bye Mortgage, Part Two

I recently described a unique fact pattern where I eliminated a first mortgage.  I started that blog with a disclaimer, and the same disclaimer applies here.  To wit, this was a highly unusual situation, and my posting about it here does not mean it can be replicated.  So, please – don’t try; you’re likely to create bad law for all the rest of us.

That said, my last blog didn’t really explain why the bank’s mortgage was eliminated (a result that, in my humble opinion, is unlikely to change by its filing this appeal).  Plus, I really enjoyed the finished product that is this Answer Brief.

So … here you go.  Notice the unique compilation of facts?  Mootness doctrine.  Collateral estoppel.  Void vs. voidable (and the extent to which title transferring to a third party matters).  Successive 1.540 motions.  You think you can try that at home?  Ha!

My point isn’t to brag.  Rather, I want to remind everyone how exceedingly rare this is (as we await the Florida Supreme Court’s ruling on the statute of limitations, of course), while making clear that, when the right set of facts emerges, I’ll pounce on those banksters and eliminate a mortgage any chance I get.  :-)

Mark Stopa

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Fla. Stat. 702.015: Update

Last month, I posted a couple of blogs, here and here, setting forth my efforts to get the Second District to give us some law on the requirements of Fla. Stat. 702.015.  This is an issue, remember, for which there is no case law.

For now, those efforts didn’t work.  I didn’t lose – it might seem that way – but the Second District issued an order dismissing the petitions.  “Dismissing” a certiorari petition is far different from “denying” the relief requested.  Essentially, they’re not rejecting my arguments, they’re saying they want me to appeal at the end of the case.  (Some cert petitions do get “denied,” as opposed to dismissed, but that didn’t happen here, which is a good thing.)

If you want to understand why these petitions were denied, take a look at Parkway Bank v. Fort Myers Armature Works, Inc., 658 So. 2d 646 (Fla. 2d DCA 1995).  That case has nothing to do with foreclosure, but it is a good example of just how nuanced appellate work can be.

Based on the 2DCA’s ruling, that’s how I’ll be handling the 702.015 issue going forward.  If a certification filed under Fla. Stat. 702.015 is deficient and does not comport with the requirements of the statute, yet the judge allows the defective certification to stand, and the bank ultimately wins the case, then I’ll appeal at that time – at the end of the case.

I don’t like having to do it that way – we’d all like some law on this issue now, not years from now – but that’s the way this one has to work.


Mark Stopa

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Stop Citing the Judy & Astoria Letters: 2DCA Agrees!

Almost every day, when I’m arguing for dismissal of a foreclosure case based on the content of a paragraph 22 letter, I cite the handful of published, appellate decisions which exist on the issue.  JudyAstoriaSamarooBusquetsHaberl.  Frankly, these decisions leave a bit to be desired in terms of laying out the facts, as they often set forth a legal conclusion (the letter “complies,” or the letter “does not comply”) without identifying the facts that gave rise to said conclusion.  Specifically, these appellate courts have frequently omitted the content of the default letters in question from the written opinions.

This leaves some bankster lawyers scrambling to try to re-create the record.  “See, judge?  The Astoria court didn’t say what that letter said, but here’s the letter.  If that letter complies, then this one does, too.”

I’ve been convinced for some time that this argument is not permissible.  Back in January, I explained why in this blog.

Today, the Second District agreed with me.

Don’t believe me?  Let’s explain.

In a recent appeal, Quarles & Brady tried making this same, impermissible argument.  “See, judge?  The Astoria court didn’t say what the letter in that case said, but here’s the letter.  If that letter complies, then this one does, too.”  The only difference was that, this time, they made this argument in an appellate brief.

At that point, I guess I had seen enough.

I moved to strike the brief, explaining how this was not a permissible legal argument.

The banksters wrote a Response that, on its face, looks fairly decent, citing cases where that procedure was purportedly authorized.

In my Reply to Response, however, I showed the bank’s arguments didn’t stand up to the cases cited in my initial motion.

Fortunately, the Second District agreed with my argument, struck those portions of the bank’s brief which cited the Judy and Astoria letters, and directed them to file a revised brief.

May it now always be known that the Second District agrees with my position on this issue.  In particular, when citing Judy, Astoria, and any other such cases in the paragraph 22 context, courts are constrained to the language within the four corners of those decisions.  If the banksters argue otherwise, make sure you set them straight!  :)

Mark Stopa

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Invited Error, Paragraph 22 Style

I’ve argued whether a default letter complies with paragraph 22 of the standard, Fannie Mae mortgage in just about every context possible.  Motions to dismiss.  Summary judgment.  Trial.  Appeal.  Having argued this many times at the conclusion of trial, it occurred to me one day “why wait?”

Since judges rule on the content of the paragraph 22 letter as a matter of law, without regard to extrinsic evidence, both sides should make their arguments whether the content of the letter is sufficient to comply with paragraph 22 before trial, rather than after.  That way, if the judge deems the letter sufficient, the trial can proceed as normal, but if the judge believes the letter does not comply, then the case is dismissed right then and there, without having to spend 2-3 hours trying the rest of the case.

I implemented this approach in a recent trial with the consent of the bankster lawyer.  I thought the agreement was extremely clear.  What do you think?  Here’s a cut and paste from the transcript:

[FANNIE COUNSEL]:  If the court finds it more efficient to argue the same matter as previous.

THE COURT:  Perhaps that might be the most efficient use of everybody’s time.

[FANNIE COUNSEL]:  That’s fine, Your Honor.

(Discussion off the record)

MR. STOPA: Your Honor, Mark Stopa for the defendant.

[FANNIE COUNSEL]:  Anthony Basilone on behalf of [Fannie].

THE COURT:  Very well.

MR. STOPA: Judge, we’re agreeing to the same procedure on this that we did on the last one. For the benefit of the court reporter, briefly.  We agree that rather than trying the whole case and arguing the content of the paragraph 22 letter, and a motion for involuntary dismissal at the end of the case, that it makes sense to argue the content of that letter at the beginning of the case.  Because if you agree the letter’s [in]sufficient, then we don’t have the need for the need for the trial.  If you disagree, then we’ll go forward in that circumstance.

THE COURT:  Very well.  Does that agree with you, counsel?

[FANNIE COUNSEL]:  Yes, Your Honor.  As far as the demand letter goes, though, I would just say — I would like to actually set the record as far as the rest of our exhibits.  But like I said, if the Court feels that the case should be dismissed just based on the content of the demand letter, I’m not going to get in the Court’s way.  However, I would like to set the record regardless, if possible.

THE COURT:  Well, certainly.  If you want to —

MR. STOPA: Yeah. I agree, if you want to proffer if the case gets dismissed on this, that’s totally fine.

THE COURT:  Again, I have the letter before me.  And Mr. Stopa, do you have a similar argument?

MR. STOPA: Thank you, Judge, right. The letter before you dated [April 11, 2011] is a very similar argument to the one I just made.  Obviously, this letter is a different letter, but in terms of the legal issues they’re the same. …

After this agreement, I argued the default letter in question did not comply with paragraph 22.  The bankster lawyer argued it did.  The judge agreed with me and dismissed the case – without the parties having to present any evidence.

The bank (I shorthanded Fannie Mae as “Fannie” – yes, I’m a dork, but something in me wanted to refer to the banks as that part of the human anatomy) appealed, and what did it argue on appeal?  That the judge erred by dismissing the case before Fannie presented any evidence.

Wait a minute.  Didn’t this bank agree the judge should adjudicate the paragraph 22 issue before submitting evidence?  Yes, yes it did.  So how can it appeal and argue the court erred by employing the very procedure it agreed upon?

It can’t.  That’s what I argued in my Answer Brief, anyway.  It’s what we call invited error.  Basically, there’s a whole line of cases explaining how parties can’t induce a court to employ a certain procedure or rule a certain way, then complain in the appellate court that the court erred when it ruled how they asked.

I can’t predict victory in these cases, not with any degree of confidence/certainty, anyway.  This is one, though, for which I anticipate receiving a PCA in my client’s favor.  :)


Mark Stopa

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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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