On February 5, 2016, Florida’s Second District issued a written decision in Corrigan v. Bank of America. The decision can safely be described as one of the highlights of my legal career. 🙂 So why on Earth am I moving for rehearing? Well, read on …
First off, what is most notable about the Corrigan decision is how the Second District ruled en banc. You see, most appeals are adjudicated by a three-judge panel. Here, by contrast, all 16 judges on the Second District joined in the decision, and all 16 judges agreed with my argument that the trial court erred by entering a foreclosure judgment where the lender failed to prove standing at the inception of its lawsuit. Where all 16 judges agreed, Corrigan is a wonderful illustration of the law on this issue, at least in Florida, and I’ll be using it to my advantage in many future cases.
So … With a win like this in hand, why have I been spending much of the past two weeks drafting a Motion for Rehearing? Well, I’m a bit troubled by the content of the second concurring opinion. In it, 3 of the 16 judges explain, in essence, how they ruled in my favor because the law required that they do so, but if it were up to them, they would not have done so because they did not believe this result to be “equitable.” In assessing the “equities” of the case, these judges note how Corrigans hadn’t paid their mortgage, but don’t set forth any “equities” favoring Corrigans. The concurring opinion goes on to assert that the law should be changed, based on these judges’ perception of what is “equitable,” such that foreclosing lenders need not prove standing at the inception of a lawsuit.
After much thought and deliberation, I saw this as a unique opportunity to file this Motion for Rehearing. This one is a doozy, folks. It’s much of what I have always wanted to say in foreclosure-world but hadn’t had the forum to do so. With this decision being made en banc, I now have that chance.
My motion for rehearing squarely addresses the concept of “equity” in foreclosure cases. I talk about clients who are elderly or handicapped. I discuss securitization, dual-tracking, and bank-induced default. I explore the extent to which fairness should be part of the decision-making process in foreclosure cases (it shouldn’t be) and question the extent to which subjective notions of equity have become justification to change the law in favor of lenders in a variety of contexts.
The next time a bankster lawyer or a judge asserts foreclosure is an action in “equity,” as if that allows the judge to decide the case partly based on some nebulous, subjective notion of fairness, remember my Motion for Rehearing in Corrigan. Remember how the Florida Supreme Court has explained that foreclosure cases cannot based on a judge’s subjective perception of equity. Remind the court that foreclosure may be an action in “equity,” but that means only that the plaintiff did not sue for money relief so there is no attendant right to trial by jury – not that the judge can subjectively decide what he/she thinks is fair. The judge wouldn’t inject fairness into the proceeding where the homeowner is sick, elderly, or handicapped, so it should not be a basis to rule for lenders merely because the homeowner hadn’t paid his/her mortgage.
Years from now, after the foreclosure crisis has long since ended, this Motion for Rehearing is how I’d like to be remembered. This is my legacy. I didn’t always win, but I did everything possible to convince judges to leave their biases by the wayside and follow the law.
Thousands of hearings. Countless arguments throughout Florida. 51 judges who have agreed, many others who have disagreed.
The issue: Is the notice requirement set forth in Fla. Stat. 559.715 a condition precedent in a mortgage foreclosure case?
Today, a 2-1 panel of Florida’s Second District Court of Appeal ruled against me, concluding the statute does not operate as a condition precedent. Here’s a link to the opinion.
Obviously, this ruling is not what I wanted. However, this is not the end of this issue. Far from it. The court is obviously divided, as evidenced by Judge Khouzam’s strong, well-reasoned dissent. Better yet, the Second District certified the question to the Florida Supreme Court as one of great public importance. As a result, so long as the Florida Supreme Court accepts the case (which seems likely), this issue will be decided by Florida’s highest court.
Is Fla. Stat. 559.715 a condition precedent in a mortgage foreclosure case? The battle wages on.
In the meantime, don’t give up, folks. I sure ain’t. And while I can’t guarantee an outcome, one thing I know for sure: when that Oral Argument takes place in Tallahassee, probably late in 2016, nobody in the room will have worked harder on this issue or be more determined than me.
Here’s the video of the 11-19-15 Oral Argument before the Fifth District.
The issue was whether HUD Regulations in an FHA mortgage operate as a condition precedent (putting the burden of proving compliance on the lender in a foreclosure trial) or an affirmative defense (putting the burden of proving failure to comply on the homeowner at trial).
This was a similar argument to that from 11-17-15 (below), yet the Court saw/handled the issues very differently.
It’s an interesting watch, and some of you may be amused by the court’s jokes about me needing “decaf” or “medication” and suggestion that I drive home “slowly.” Regardless of whether you interpret that as criticism or all in good fun (I consider it the latter), I’m pleased with how well the judges knew the arguments and how engaged they were with me … really, that’s all I ever ask for in foreclosure-world.
I’m thankful for many things this Thanksgiving, but right now, I feel particularly grateful for the handful of staff at Stopa Law Firm who have been so loyal/hard-working/great for a long time now.
The biggest “thank yous” go to my three longest-tenured staffers: Angela (been with me since 2008), David (intake paralegal since 2008, helped me pound “Stopa Law Firm” signs into telephone poles back when nobody knew who I was), and Rachel (answering phones on our 800-number since 2008).
Thank you also to Alice and Ashley, who are going on five years here, and Tiffany, in her fourth year, as the three of you have been great behind the scenes for a long time now.
Finally, thanks to all the others who have made it here beyond a year (no small task!): Bernie, Chris, Al, Kevin, Christina, Teresa, and Deanna.
Here’s the video of my 11-17-15 Oral Argument before the Second District.
We discussed two novel, cutting edge issues:
(1) a foreclosing lender’s obligation to comply with HUD Regulations before acceleration and foreclosure in an FHA mortgage, and whether such compliance is a condition precedent or the absence of such is an affirmative defense at trial; and
(2) whether a foreclosing lender can avoid proving it had standing when it filed suit by proving such standing upon the filing of the amended complaint.
I have two Oral Arguments this week, one in Florida’s Second District Court of Appeal and one in the Fifth District. The issue in both appeals is whether the face-to-face counseling requirement of 24 C.F.R. 203.604 is a condition precedent to foreclosure of an FHA Mortgage (such that the burden of proving such counseling is on the lender) or an affirmative defense (such that the burden of proving the lack of such counseling is on the borrower).
I think the counseling is a condition precedent, but there’s no case law in Florida on point. So … let’s go make some law. 🙂
Here are the briefs for these two appeals:
Corrigan: Tues., Nov. 17, 2015 at 9:30 before the Second District, though I’m last on the docket
Here’s the video from my most recent oral argument in the Second District.
This one involved a paragraph 22 argument and the relatively unique concept of “invited error.”
My favorite parts: (i) when the judges flat-out told the bankster lawyer that his first argument was not good; (ii) my exchanges with Judge Salario regarding the Milam decision, where I was put in the exceedingly rare position of arguing the content of my still-pending Motion for Rehearing in Milam with the judge who wrote the opinion (because that argument also pertained to the issues raised in this appeal).
Here’s a video of my Oral Argument on Sept. 1, 2015 before the Second District.
The topic was Fla. Stat. 559.715 (what else?). The coolest part of the argument was the panel’s interest in the issue – so much so that they let us go on for twice as long as usual. Twice as much time to argue? Sign me up. 😉
A written decision on this issue is coming. Cross your fingers! 🙂