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Mark Stopa Thrown Out of Court (Literally)

I had a hearing earlier this week on a Motion to Substitute Party Plaintiff.  It’s the type of motion we’ve seen all too many times – one fraudster bank wants to remove itself as the plaintiff and allow a different fraudster bank to substitute in its place.  Unfortunately, these motions get granted all of the time, often ex parte, without notice, and without hearing.  Many times, I don’t even know these motions are filed until the Order is signed, as the plaintiff’s lawyers submit Orders to the judges without copying me.  I’ve complained about this process repeatedly, yet judges all seem to think this conduct is okay - not ideal, but a byproduct of insufficient budget funding. 

At my hearing on Monday, this process reached a new low. 

SunTrust Bank had at least six such motions pending, trying to substitute Nationstar in its place as the plaintiff, all at the same hearing time.  At a rocket-docket, I watched four such motions be granted without opposition.  When my motion came up for hearing, I wasn’t terribly optimistic, but I felt my argument was sound.  After all, Florida procedure authorizes a substitution of the party plaintiff in the event of a “transfer of interest,” but in its motion, SunTrust alleged no such transfer.  Here was the sequence of events:

1.  Lawsuit filed by SunTrust, alleging lost Note, no copy of Note attached to Complaint.

2.  Assignment executed and recorded, purportedly conveying to SunTrust.

3.  Nearly 2 years into the case, “original” Note filed, not in name of SunTrust, with no indorsement. 

4.  Assignment filed and recorded from SunTrust to Nationstar. 

5.  Motion to Substitute Party Plaintiff filed, alleging an Assignment of Mortgage had been recorded. 

As I see it, the second assignment, to Nationstar, was irrelevant and insufficient without more facts, particularly since SunTrust lacked standing at the inception of the case.  At minimum, SunTrust should have alleged some facts in its motion, something to the effect of:

The Note and Mortgage were transferred to Nationstar on X date, so Nationstar is now the proper Plaintiff.

This motion didn’t even have that much!  It pointed to the assignment (two years into the case, from a company that was not on the note and obtained its own assignment after the suit was filed), and that was it.  But what does the assignment really tell anyone without an allegation that the Note and Mortgage were transferred after the suit was filed?  Absolutely nothing. 

Quite candidly, this is not the strongest argument I’ve ever made.  It’s technical.  I think I’m right, but I’m not going to criticize a judge for ruling against me.  The problem was that I was about 45 seconds into my argument, and had clearly not finished my argument, when the judge interrupted, said “you can argue all of that later in the case, the motion is granted.” 

I immediately asked if the Order could so reflect, and he said “No, I’ve already signed the Order.”

At that point, I was pissed.  It wasn’t a matter of whether I was right or wrong on the merits of the motion.  It was a matter of the judge not even being willing to let me make the argument before making a ruling.  It’s not like I was rambling on and on, either – I had talked for less than a minute, with a very coherent argument, when he interrupted me (and signed an Order). 

Aggravated at the obvious denial of due process, I began to argue more.  The judge refused to listen, saying the hearing was over. 

I moved to disqualify him, arguing he refused to let me be heard.  He refused to rule on the motion to disqualify him, instead saying I was “out of order” and telling the bailiff to remove me from the courtroom. 

With all due respect, is this what it’s come to in our courtrooms?  Judges sign Orders without letting one side be heard?  Then refuse to let that party finish a brief argument?  Then tell the bailiff to remove the lawyer who moves to disqualify them? 

I don’t expect to win every hearing.  But I absolutely do expect that I will be given a fair chance to be heard at every hearing.  For this judge to take that away is offensive and degrades the entire system of justice.  If this is happening to you, fight.  I’m filing a written motion to disqualify this judge, and I’m going to word it in a way that it’s impossible for him to (lawfully) deny it.  And if he does deny it, I’ll go to the Second District. 

As lawyers in the foreclosure crisis, we all need to stand up for our right to be heard.  I’m not saying to pick a fight.  I’m not saying be argumentative.  I’m saying to not allow our basic rights to due process to be trampled.  If a judge refuses to listen, make him/her.  If the judge refuses, complain about it (respectfully, but without backing down).  If it takes getting thrown out of court, I’ll live with that.  What’s the alternative?  If I give up, then our system of justice will continue to erode, piece by piece, and pretty soon, they’ll be nothing left at all.

Mark Stopa

www.stayinmyhome.com

Posted in Main | 30 Comments »

30 Responses to Mark Stopa Thrown Out of Court (Literally)

  1. pam says:

    Mark,

    I don’t know what court room you were in but from what I’ve read of the ACLU petition, it sounds like Lee County’s Rocket Docket. My question is this: my case will land in the 20th district court and from all that I have read, I (or my lawyer) may have no chance whatsoever to defend it. If the ACLU’s brilliant and overdue petition doesn’t bring the necessary changes to it, do I have any chance at all?

    If not, is there a way to move a case to a federal court and would that be beneficial? It just stuns me that we can live in the USA and still feel like it is a third-world country where you can get booted out of your home and have nothing to say about it, in spite of the fraud perpetrated on you.

    • Mark Stopa Mark Stopa says:

      I hear you. I continue to hope the Second District will do something to upset the apple cart in Lee County. I guess we’ll see.

      Good luck.

      • david black says:

        well as a pro se litigant when the judge pulled that crap on me in virginia years ago, I sued in federal court in alexandria which then went on appeal to the us federal court of appeals in richmond who then told the Virginia Court of Appeals to tell the local judge to grant a new hearing and I got it and I prevailed as well.

        just get a bigger club in federal court. for the life of me I do not understand why you guys dont go to federal court. if you are not licensed to practice in federal court well get one or get a friend attorney who is to file an action against the judge .

        geezy peezy, that is what the federal courts are for.

        best regards
        David B.

  2. JamesM says:

    You are not making friends on the bench, but then that’s not strictly your job, there again – it would help.

    You were right. Did you make that argument in a written reply to the motion, or just on your feet? Sounds like a motion for reconsideration is called for, if only to spell out, in the record, the objection to the order. (Leave out the court room issues, they will be pain enough in the transcript, if you had a court reporter, and moot if not.)

    You are right, you can’t transfer an intrest if you never held an intrest. There again, come trial, you will challenge old plaintiff’s standing at time of commencement and new plaintiff will have to prove old plaintiff had standing, which is getting more tenuous and difficult for them to prove.

    Moreover new plaintiff cannot be a holder in due course becuase they acquired the debt when it was in default. Which opens it up for more defenses, and a motion for leave to amend the answer, and opportunity to allege more affirmative defenses.

    I am willing to bet the AOM’s did not say without recourse, and even if they did it is meaningless if note was in default, or alleged default, at the time.

    Proof is for trial. Let them proceed under dubious pleadings, defeat a summary judgement based on the material issues in dispute, and proceed to trial. Sounds like they are out on a long limb. So instead of asking them to go back and shore it up at this time, just sharpen your saw and prepare to cut it off.

    The question is, how does your appellate record look so far, as to the issue of standing, and what do you need to flesh it out? Bearing in mind that Standing can be raised at any time, I think it can even be raised on appeal.

    Bugger the trial court, perfect the appellate record with a well drafted motion for rehearing, in which you spell out the objection, give the court the ability to reverse itself, and lay out the foundation for the appeal.

    The court, on consideration of your motion for rehearing may have a change of hart, (in your case and your case only), which it may have been reluctant to do in court because it would mean reversing a whole bunch of other identical orders entered on the same day for the same Plaintiff. The court may do in private what the court was reluctant to to in pubic, because of the egg on the face problem.

    On the other hand, do you really want the plaintiff to come back now, in an evidentiary hearing focused on standing, and fabricate plausible witness to the orignal standing? Do you want the law of the case to be that standing at time of commencement was established?

    Would it not be better to let them proceed, let them assuming standing, and when they come to trial, when they are all set to prove amounts due and owing, attorney fees and stuff, kick the standing stool out from under them at that time? Give them enough rope and their own self confidence will hang them.

    Right now they believe they have defeated your motion regarding standing, but the court only denied your objection to substitution of Plaintiff, which is a de novo issue and can be argued later on appeal.

    The Court has not issued an order finding orignal Plaintiff had standing at the time of commencement, which is totally diffrent. I think it unwise to force such a ruling via an evidentiary hearing, or a motion for a partial or full summary judgement, because if it goes against you, that will become the law of the case.

    At this time you don’t know what evidence or witness they may bring at trial. Forcing the issue now will just cause them to create the approprate documents. If this is a wound in their case, let it fester, eventually their leg will drop off.

  3. David Acosta says:

    Based on your account of events the case law supports disqualification. The judge’s error, beyond the initial denial of your right to be heard, was his reflexive response to your verbal motion to disqualify. The response alone warrants granting the motion. A tightly drafted motion and supporting affidavit should get the job done.

    Good luck with this, and thank you for continuing to demonstrate what real advocacy looks like.

  4. Pingback: Out of Control | Foreclosure Defense Attorney Mark Stopa Thrown Out of Court (Literally) « Foreclosure Fraud – Fighting Foreclosure Fraud by Sharing the Knowledge

  5. leapfrog says:

    Thank you for refusing to back down and challenging that judge. I hope you get through to the higher-ups that this judge denies due process and that should not be tolerated anywhere within the court system.

  6. Jon Colley says:

    Came across this blog and had to comment. Not knowing you, have to applaud you as an attorney and advocate to the people who you defend. As a realtor wading through the distressed housing market, we are face to face with homeowners who are overwhelmed. Some look to us for a magical answer to their problems while others look at us as the problem. In reality there are great attorneys and realtors who care about their communities and the families who live there. All of us in the process must educate ourselves and use our expertise and “stand up” for those who depend on us to get them through this difficult time. If this means getting thrown out of court or repeatedly getting hung up on by an ignorant loss mitigator from a bank, we must defend those who need us the most. Thanks Mark, your actions have motivated me to work harder as a realtor.

  7. BrianD says:

    Keep up the fight, brother. I agree that the judge should NOT have cut you off. What was the point of scheduling a hearing on the motion, if he pre-signed the order? He apparently doesn’t mind wasting your time (and money) by having you appear in court for no reason. Then he had the baliff toss you out of court like a drunk at a bar. Wow.

    Plaintiffs have already dragged this case on for over 2 years and played funnygames with the paperwork. Now, the plaintiffs assign the mortgage, further complicating the case, and bogging up the court’s limited resources with this new motion. At this point, the plaintiffs have unnecessarily delayed the proceedings. Yet, counsel for the plaintiff didn’t even show up to court to show that they are taking this action seriously.

    This judge is being openly disrespected, but he is too busy rubberstamping foreclosures to notice. If I were the judge, I would want to: (1) award attorney’s fees and costs to you; (2) dismiss this case; and (3) demand briefs on the issue of ‘why dismissal shouldn’t be entered with prejudice?’

  8. Phred Maldanalco says:

    It happens in CA as well. In my case, wife died during divorce. Her atty took a $30.00 charge and trumped it up to $3000, and judge refused to provide statement of decision of how amount of alimony was determined.
    At hearing judge proceeded to warm up on some poor atty who had delayed a probation for 3 years. Then he turned to my case, where I was pro se. Her atty stands up and states she died. I started to present my arguments, and the judge cut me off, calling me ‘reprehensible’ and ordered me out of court. I tried to speak again, and he threatened sanctions. As I was leaving the judge and her atty were discussing how much I should pay in atty fees.
    The Council on Judiciary Performance had no problem with this conduct in Kalifornia Kangaroo Kourts. And the rules are such in Kalifornia that you have to submit an appeal before you have an appealable issue.
    With playing fields tilted so much against pro se, no wonder we stagger around like … well, drunks getting thrown out of a bar.

  9. angry&NOT TAKIN IT says:

    Go to GoogleScholar and type in: “Your State’s name quo warranto” and see what you come up with.

    Here is what I discovered, if any wants to do more research we can probably get every case stopped with a good pleading.

    http: //scholar.google.com/scholar_case?case=3743200758461557362&q=Arizona+quo+warranto&hl=en&as_sdt=2,3
    “The facts admitted in this Court establish that from January 1, 1961, to March 12, 1962, respondent was president and a director of the Associated Mortgage and Investment Company, an Arizona corporation, and also a member of the Arizona State Retirement Board; that during this time Arizona Mortgage and Investment Company sold mortgages in an amount in excess of three million dollars to the Arizona State Retirement Board as investments for the state retirement fund.
    522*522 It is, we believe, accepted without dissent that public officers must have no personal interest in transactions with the government which they represent. The rule is most aptly stated in Stockton Plumbing and Supply Co. v. Wheeler, 68 Cal. App. 592, 229 P. 1020:
    “The principle upon which public officers are denied the right to make contracts in their official capacity with themselves or to be or become interested in contracts thus made is evolved from the self-evident truth, as trite and impregnable as the law of gravitation, that no person can, at one and the same time, faithfully serve two masters representing diverse or inconsistent interests with respect to the service to be performed.” 68 Cal. App. 592, 601, 229 P. 1020, 1024.
    This Court said in Williams v. State, 83 Ariz. 34, 315 P.2d 981:
    “In order that he [the public officer] act only for and on behalf of the state’s interest, it is imperative that he have no personal interest that might clash or conflict with that of the state. * * * Public policy requires that personal interests not exist as a possible factor influencing a public official in the performance of his duties.”

  10. Jill says:

    Keep fighting for the people who trust & paid an arm & a leg for your counsel.
    The law is the law, I cannot understand why the judges have pre conceived ideas when they have not taken the time to hear both sides.
    Another strategy might be to raise the issue of the cloud on title if the defendents loan was securized. Title insurance was placed in escrow, once the note was sold or lost as the case may be, is the title insurance still in force? Would a new title insurance company guarantee clear title? Were the assignments of mortgages properly assigned
    & were the notes separated from the mortgage. These are all evidence gathered in discovery, how can any judge disbute the evidence. Seems that all of these facts will come out in trial.

  11. patrick farrell says:

    Like most people Stopa is TOO fucking polite.
    I am Irish and don’t have that problem. Lee CO. Republicans are criminals who should be shot in the head for Treason. What is lurking in all this is the FACT that all this debt paper is being used more than once to collect on.
    The notes by foreign banks for other loans, TARP, CDS, insurance,
    the mortgages for foreclosure. How many fucking times do these assholes get to use this counterfeit money? As many times as you let them.
    SUE THE JUDGES GENIUS! AND QUIT YOUR WHINING!

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  13. Stupendous Man - Defender of Liberty - Foe of Tyranny says:

    Mark,

    Being thrown out of a bar is no easy task, or for the faint of heart. Remember, anyone can be a bum, but being a drunk takes endurance. Perhaps you should set the bar lower (no pun intended) and give being drunk in court a try first.

  14. Mark Stopa is our Attorney of the week!
    Our banana republic of Floriduh is worth fighting for…. (we hope.)
    National WAMU Homeowners Support Group – http://www.wamuloanfraud.com

  15. Geil Bilu says:

    Mark:

    Way to go- It takes a lot of courage to stand up to a judge who you know you will be seeing again and again and again… Are you going to be filing a complaint with the JQC? This is the problem with non-elected judges. Keep up the good fight (we’ll be doing our share down here in South Florida).

  16. Rick in Colorado says:

    Ya know, if this were a Vince Flynn novel, they’d shoot the f@$& -er….. and rightly so.

    Mark, get this pompousnass thrown off the bench…..he’s a criminal and should face the barest of penalties.

  17. pam says:

    Geil Bilu, or (anyone else)

    I am in south Florida’s 20th judicial district court and wondered if you have had dealings with it. I am trying to find out what more about what goes on there and if ANY cases have been successful. If not, how does the appeals process work and what cases have prevailed on appeals and can a homeowner stay in the home during the appeals process?

    thanks

  18. John says:

    Try this:
    “…this court must rule solely upon the evidence before it, as provided by the petitioner. Seneca wrote, “”He who decides a case with the other side unheard, though he decide justly, is himself unjust.” [Seneca’s Medea.]

  19. Huey Reed says:

    As Neil Garfield has said, ‘the Wall Street Investment Bankers have created the largest ponzi scheme in the history of the world.’ His website livinglies.wordpress.com is very enlightening about the entire Sub-Prime Mortgage Scam. Sale the mortgage using MERS, have docs signed by Linda Green, re-appraise the mortgage (not the real estate) to 3 times face value, have the Government back in with bonds so it can be pooled and sold on Wall Street as a security, and have the Government insure it for 30 times the re-appraised value should the loan default. Now you know where the Trillions of ‘missing’ dollars have gone. Loan amount $200k, re-appraised value=$600k, insured amount=$18 million. Why would they want to work with anyone? Niel Garfield was a Wall Street Investment Banking Attorney for 40 years, he understands the entire scam like nobody.

  20. Cookie Garcia says:

    You sound like a hothead with a chip on your shoulder. Remember, the judge is not always right but he/she is always the judge. Your reputation will proceed you.

    • Mark Stopa Mark Stopa says:

      It’s a fine line between ensuring that a judge listens to an argument and coming off as a half-cocked hothead. And it’s certainly not lost on me that I have to appear before these judges in the future. But that’s actually sort of the point. If a judge isn’t willing to let me be heard, then I’m not going to sit quietly and allow that to happen – if I do that, then the judge will think it’s ok and will never let me be heard.

      Bear in mind, as frustrated as we all are with the system as it presently exists, it’s rare that a judge refuses to let me be heard. Yes, there have been instances where a judge wouldn’t read a motion, wouldn’t look at case law, and wouldn’t let me finish an argument, but those are generally rare. And I don’t expect judges to always agree with me or always get it right. As long as they are giving each side a chance to be heard and making a fair and honest effort to follow the law, that’s all one can really ask.

      As for my reputation, this cuts both ways. Yes, a lot of judges know me, and some don’t like me. OK. But this isn’t a popularity contest. Are these judges more likely to ensure due process and follow the law because they know me and know my reputation? I’d like to think so. And at the end of the day, that’s what matters, especially in foreclosure cases.

      Think about it like this. If you know your boss is going to thoroughly evaluate your work, aren’t you more likely to do a good job on a particular task? That’s sort of how I see the dynamic with judges. If judges know I am well-versed on the law and know I can go to the appellate court, I think they’re more likely to follow the law and make the correct ruling.

      • Shannon Anderson says:

        Mark, you are doing the right thing. And the person who made this comment either doesn’t understand what due process is in the first place and has never listened to the oath applied OR this is a representative of a bank or a personal friend of a judge who has their own chip on their own shoulder. A hot head would go into court and raise the potential issue that the judges are collberating with the Plaintiff’s and demand impeachment :) A level headed person on the other hand would expect that justice would prevail, which in the very beginning requires both sides adequate time to be heard!

  21. James Vosswinkel says:

    Your so right about not being able to be heard. I am the defendant in a foreclosure case and originally the plaintiff, Met Life Homes, hired David Stern. Well, we know what happened to him. Today in the mail I recieved paperwork from Butler & Hosch (their cover letter was addressed to the Honorable Judge Anthony Rondolino who is presiding) for a Motion For Substitution Of Counsel. Well, on the cover letter to the judge it states that any objections be directed to your (Rondolino’s) office within 5 days of the above date. Well, the above date was 08-September and today is 13-September. There’s no way I have time to object – it’s not adequate time – therefore I’m not being heard! Looks like they are going to pull this substitution off on me.

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