Posts Tagged ‘final judgment of foreclosure’
It happens nearly every day. A homeowner comes to my office with a tear-jerking story, explaining how he/she has been foreclosed. A Final Judgment of Foreclosure was entered, but the homeowner is now ready and willing to pay Stopa Law Firm to defend the case. “Work your magic, Mark. We’re ready.”
There’s just one problem. The homeowner waited too long. There’s no magic to work – the case is over. You see, once a Final Judgment is entered, the time to assert defenses has passed. As a matter of procedure, those defenses are barred. Short of a bankruptcy consultation, there’s little that can be done to stop that foreclosure. Defenses that could have carried the day can no longer be raised.
“I’m sorry, you’re too late.”
Sometimes I fear that I perpetuate this problem by providing information on this blog. Homeowners may think they can take the information provided here and defend a case on their own.
Please … don’t make this mistake, folks.
I could spend years educating you on how to defend your case. It’s called law school – and that’s just the start of it. The nuances of what to argue and how to argue it are never-ending. Candidly, the biggest problem for pro se homeowners, in my experience, is they might know what to argue, but they have no idea when or how to argue it.
You think the bank lacked standing when it filed suit, so you bring a motion to dismiss. Wrong.
You think the bank lacked standing when it filed suit, so when the bank moves for summary judgment, you don’t file anything, but you show up at the hearing to argue. Wrong.
I’ve created an entire business model predicated on helping as many homeowners as possible as inexpensively as possible. It’s called Stopa Law Firm. If you’re waiting to retain us, please – don’t be penny wise and pound foolish. Get an experienced foreclosure defense attorney on your side before it’s too late. Otherwise, you’ll be one of the many prospective clients calling our office only to be told:
“I’m sorry, you’re too late.”
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Many homeowners inquire about legal representation with my firm after a Final Judgment of Foreclosure has already been entered. Often, these homeowners were in denial about the possibility of foreclosure and/or had their heads buried in the sand for too long, failing to ”wake up” and seek help until right before a foreclosure sale is about take place. Unfortunately, regardless of what I may think about the merits of their position, the procedural problems with taking on a case at that stage of the case are often prohibitive. Bankruptcy is always an option, but, frequently, there’s not a lot that else can be done.
That said, there have been instances where I have taken a case after trial is over and a Final Judgment of Foreclosure had already been entered. You may recall the Initial Brief I posted on this blog, which has been pending in the Second District for quite some time now (probably a good sign, as the appellate courts typically takes longer on appeals that have merit). Additionally, I just recently became counsel in another case for purposes of filing an appeal, and this is the Emergency Motion for Stay Pending Appeal that I filed in the Fourth District Court of Appeal. My intent, as you can see, was to get the Fourth District to cancel the foreclosure sale set for May 29, 2013 and allow me to prosecute the appeal before the home was sold at a foreclosure auction.
Today, I received an Order from the Fourth District which granted the stay, cancelling the foreclosure sale and directing the bank to respond to my motion within seven days. In writing this blog, I want everyone to see the arguments that I raised that caused the Fourth District to cancel the sale. Read the motion. Don’t the facts look compelling? Perhaps more importantly, though, I wanted everyone to understand why I was willing to take on these two cases while I’ve had to turn down so many others.
One obvious similarity in these two files is that the homeowners brought a court reporter to trial. If you have any thought whatsoever of pursuing an appeal of the court’s ruling at trial, a court reporter is a must. After all, if you can’t show the appellate court what happened at trial, you can’t possibly show why the lower court ruled incorrectly. (To clarify, court reporters are not necessary for every hearing. For evidentiary hearings or trials, though, they are a must.)
If that doesn’t make sense, read the Initial Brief and the Emergency Motion for Stay Pending Appeal. Notice how I’m repeatedly citing a “record” in the former and an “Appendix” in the latter? That is absolutely essential if you want to pursue relief in the appellate court after a foreclosure trial. If you don’t have a trial transcript, then it’s nearly impossible to pursue an appeal based on what happened at trial. Occasionally, an appeal is still possible, but you’re swimming in the middle of the Atlantic Ocean without a life vest at that point. Sure, you might randomly encounter a buoy 100 miles offshore, but chances are huge that you’ll drown.
A second common theme in these two files is that both homeowners came to me right after trial was over. They didn’t wait until the foreclosure sale was about to take place. They didn’t wait until a sheriff was knocking on the door. You might think that shouldn’t matter, but it does. To even bring an appeal, the homeowner must file a Notice of Appeal within 30 days after the Final Judgment. If you wait until day 31, it doesn’t matter how meritorious an appeal might have been – you are procedurally barred from pursuing an appeal.
It’s often frustrating to turn down prospective clients who waited too long to call me. I’m frustrated, and so are the homeowners. But don’t shoot the messenger, folks. I didn’t create the rules, and I’m not going to take someone’s case and charge someone a fee if it’s too late to file the appeal.
Third, the facts in these two cases were particularly compelling. In the second case, for example, the homeowner paid a second mortgage in full and was making normal monthly mortgage payments until the bank put her payments into an account and stopped applying them towards her mortgage. That shouldn’t matter, and technically it doesn’t matter on an issue such as whether the plaintiff had standing at the inception of the case, but that’s the sort of fact that really gets an appellate judge’s attention. If that doesn’t make sense, think of it this way … to win an appeal, it’s sometimes not enough to show the appellate judges they have to reverse – you have to make them want to reverse. Showing that my client made these payments does that (as would, say, making loan modification payments under a dual-track process). To the greatest extent possible, you want to appear as if you’re wearing the white hat.
Of course, it’s almost always best to retain competent counsel before your foreclosure case is over, not after. My win today doesn’t change that. This blog is merely intended to shed some insight onto the types of facts I’m looking for when taking cases after a Final Judgment has already been entered. And by posting this Initial Brief and Emergency Motion for Stay Pending Appeal, I hope to shed some light on the way in which these arguments should be presented.
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As a foreclosure defense attorney since 2008, I’ve had many heartbreaking conversations where I had to tell a homeowner I didn’t think I could help him/her because he/she waited too long to call me – the court had already entered a Final Judgment of Foreclosure and the deadlines for rehearing and appeal had already passed. This is a difficult concept for many homeowners to understand – arguments that will work before a judgment is entered simply won’t work post-judgment.
I don’t like this any more than homeowners do, but I’m not going to collect fees from homeowners if I don’t think I can help them. Stop and think about that for a minute … generally speaking, I’m so skeptical of helping homeowners post-judgment that I turn away their cases. If a lawyer is turning down fees, shouldn’t that tell you something?
To illustrate what I mean, check out the most recent decision from Florida’s Fourth District. As you see, the court’s adverse ruling had little to do with the substance of the homeowner’s arguments and everything to do with when those arguments were made – after judgment had already been entered.
If you don’t understand anything else I say on this blog, understand this … if you wait too long to defend your foreclosure case, you will waive rights, and if the court enters a Final Judgment of Foreclosure, it may be impossible to do anything about it. So don’t wait to fight your lawsuit – get started right away.
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As a foreclosure defense attorney who represents homeowners throughout Florida, I’m intimately familiar with the shortcuts taken by foreclosure mills in trying to “push through” foreclosure cases. One tactic I repeatedly see is requests for attorneys’ fees as part of a summary judgment motion. Typically, the plaintiff’s attorney signs an affidavit that his fees are reasonable, and another attorney, acting as an “expert,” signs an affidavit opining the same, and the bank requests that these fees be included as part of the Final Judgment of Foreclosure. This may sound like a legitimate approach, but here’s the thing. If you object to the court’s consideration of attorneys’ fees by affidavit, and insist on the “expert” testifying live, in open court, you should prevent the court from awarding attorneys’ fees at a summary judgment hearing. This is not an area of law in which the judge has discretion; attorneys’ fees cannot be awarded based on affidavits when the opposing party insists on live testimony. When I see this issue (and I see it in essentially every foreclosure case), here’s what I do. I file an objection, and argue as follows:
1. In its Motion for Summary Judgment, Plaintiff attempts to tax attorneys’ fees and costs. In support, Plaintiff provides an affidavit of its counsel and an affidavit of an alleged expert.
2. The affidavit of this “expert” lacks facts and is conclusory in nature. Under the circumstances, Defendants want to cross-examine this alleged “expert” as to the factual basis of the affidavit.
3. Under controlling law, attorneys’ fees may be awarded upon presentation of affidavits, without live testimony, if the party opposing the entry of fees does not object. See DM Records, Inc. v. Turnpike Commercial Plaza, 894 So. 2d 1030 (Fla. 4th DCA 2005); Ins. Co. of North America v. Julien P. Benjamin Equip. Co., 481 So. 2d 511 (Fla. 1st DCA 1985).
4. In this case, however, Defendants are objecting to the use of affidavits in lieu of live testimony. As such, an evidentiary hearing on the Motion is required. See Dvorak v. First Family Bank, 639 So. 2d 1076 (Fla. 5th DCA 1994); Dhondy v. Schimpeler, 528 So. 2d 484 (Fla. 3d DCA 1988); Soundcrafters, Inc. v. Laird, 467 So. 2d 480 (“the trial court erred in permitting Laird’s sole expert to testify by way of affidavit over Soundcrafters’ objection.”); Terrazzo, Inc. v. Altman, 372 So. 2d 512 (Fla. 3d DCA 1979); Geraci v. Kozloski, 377 So. 2d 811 (Fla. 4th DCA 1979) (“In an adversary proceeding such as this the determination of an attorneys fee for the mortgagee based upon affidavits over objection of the mortgagor is improper. Evidence should be adduced so that the full range of cross examination will be afforded both parties.”).
5. As evidence is not permissible at a summary judgment hearing, see Fla.R.Civ.P. 1.510, it would be reversible error to award attorneys’ fees via summary judgment. See cases, supra.
As I see it, this is a really simple way to prevent banks from tacking on attorneys’ fees at a summary judgment hearing. Banks and their lawyers don’t like it, but short of asking the judge to ignore the law, there’s not much they can do about it.
One could argue that this is a bad idea because banks can come back and re-set a hearing, with live testimony (after entry of Final Judgment) and at that point they’ll have more attorneys’ fees to tax because we made them come back for another hearing. In theory, that’s true. But let me ask you this – how often do you think they’ll actually re-set another hearing? Once the bank gets a final judgment of foreclosure, do you think they’re going to bother coming back into court, for a separate hearing, with their expert, to present testimony about a few thousand dollars in attorneys’ fees? Before you answer, bear in mind – often, the bank’s attorney, as well as the fee “expert,” are in a separate part of the state and will do anything possible to avoid having to travel to a hearing. Perhaps better yet, Florida law typically does not permit attorneys to recover fees for the time spent traveling to a hearing, particularly an out-of-town hearing. With this in mind, let me ask again – if you successfully prevent the inclusion of attorneys’ fees in a final judgment of foreclosure, do you really think two lawyers are going to travel across the state for an in-person hearing to try to tack on a few thousand dollars in attorneys’ fees? I sure don’t. That’s a big reason why I file objections to fee awards by affidavit, as set forth above.
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All defendants, even homeowners facing foreclosure, are entitled to due process of law before their property can be taken. (Many people even know the phrase in the constitution – “cannot be deprived of life, liberty, or property … without due process of law.”).
One of the most basic elements of due process is ensuring a defendant is aware of a lawsuit, and given the chance to defend, before that lawsuit is adjudicated. This is accomplished, of course, by ensuring valid service of process. Specifically, all plaintiffs are required to ensure defendants are served by a process server or sheriff with a Summons and Complaint. There are exceptions to this, i.e. service by publication, but its requirements are technical and, hence, are strictly construed.
I currently have a client who owns a home in Jacksonville. He was sued for foreclosure but he lives in New York. Instead of serving him in New York, as required, the bank’s lawyers served him by publication. Unaware of the lawsuit, he did not defend it, resulting in a Final Judgment of Foreclosure and a foreclosure sale (at which the bank was the high bidder).
This homeowner retained Stopa Law Firm, and I moved to vacate the Final Judgment, cancel the Foreclosure Sale, and Quash Service. Initially, the bank’s lawyers opposed the motion, arguing at a brief, 15-minute hearing that service was appropriate and the Final Judgment should stand. The Jacksonville court ruled, however, that my client was entitled to an evidentiary hearing on whether service was valid. That hearing was supposed to take place on Monday. However, I got a call this week, out of the blue, whereby opposing counsel stipulated to Vacate the Foreclosure Judgment and to the entry of this Order Vacating Foreclosure Judgment, Cancelling the Foreclosure Sale, and Quashing Service – all we had to do was cancel the hearing and accept service.
This is quite a good result, obviously. The client gets the foreclosure judgment vacated and the bank has to, essentially, start the case from scratch. And we essentially give up nothing in return. This raises the question, of course – why would the bank do this?
As I see it, there is only one explanation – the bank feared the evidentiary hearing, specifically the evidence that would have been presented if the hearing had gone forward. In particular, it seems clear to me that the bank knows there are many cases where service of process has been done improperly and it doesn’t want to shed a spotlight on that fact any more than necessary.
Let this serve as a reminder – if you’re being sued for foreclosure (or anything else, for that matter), you are absolutely entitled to force the plaintiff to serve you, with a process server, with a Summons and Complaint. Service of process by publication is possible, but the banks often do it incorrectly, meaning you could, like in this case, get a foreclosure judgment vacated (even months or years after the fact) if you were not served properly.
The banks’ failure/refusal to effectuate service properly is just one example of how they cut corners and violate the law in their ongoing attempt to push through foreclosures as quickly as possible. Don’t let them get away with it! Make sure you and your family and friends are aware of the requirement to effectuate service of process properly.
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It’s sometimes difficult to explain, in layman’s terms, how a foreclosure defense attorney can assist homeowners who are behind on their mortgage. Sure, most Americans are aware, at this point, how attorneys such as myself force the bank that is suing to prove it is the “right” bank, i.e. force the bank to prove it owns and holds the original note and mortgage. As I see it, though, a better explanation of how I help my clients comes through an understanding of the Florida Rules of Civil Procedure.
Generally speaking, there are only two ways a bank can “win” a foreclosure lawsuit in Florida (as required to foreclose on a Florida homeowner). First, the bank can prevail on a motion for summary judgment. This is when there are no material facts in dispute and the bank is entitled to judgment as a matter of law. Nearly 100% of foreclosure cases are adjudicated this way, typically after a bank presents an affidavit supporting its position and the homeowner presents no conflicting affidavits.
Second, the bank can win at trial.
When a competent foreclosure defense attorney handles a file, it is often, quite candidly, not terribly difficult to defeat a motion for summary judgment brought by the bank. Yes, some cases are harder to defend than others, and no, I’m not saying summary judgment is impossible. However, in my experience, most homeowners have sufficient defenses to preclude a foreclosure via a motion for summary judgment. To understand why that is so, try not to get bogged down in legal jargon. Instead, think about it like this. For a bank to obtain a foreclosure via summary judgment, the judge must accept all facts asserted by the homeowner as true (even if the bank disagrees with those facts) and, based on the homeowner’s version of the evidence, must conclude whether the bank is entitled to a foreclosure. See Fla.R.Civ.P. 1.510.
To explain how this standard works, I like to use a traffic light analogy. Suppose it’s a personal injury case and the plaintiff’s lawyers line up 10 witnesses, all of whom say the traffic light was red at the time of the accident. Now suppose the defendant presents one witness, himself, who says the light was green. Even though the plaintiff has many more witnesses, the judge is required, at summary judgment, to accept what the defendant says – the light was green - and to rule accordingly. This is a high legal standard, and it’s a big reason why it’s so hard for banks to obtain a foreclosure via summary judgment when the homeowner retains counsel. Essentially, the homeowner just needs to find one material fact in the bank’s case with which it disagrees to prevent summary judgment. When that happens, the bank is left with just one option – trial.
If you’ve watched Law and Order or a similar lawyer show on TV, a trial may not seem like a big deal. Let me assure you – trials don’t happen like you see on TV. In fact, in my experience, banks don’t like to go to trial in foreclosure cases, even if that’s the only way they can get a foreclosure. I won’t speculate about banks’ motives too much, but I strongly suspect the banks are afraid of losing at trial and the precedent/fallout that would ensue. With media coverage of foreclosure cases how it is, can you imagine if a big bank like Bank of America went to trial against a homeowner who hadn’t paid his/her mortgage in two years and lost? Homeowners throughout the country would be emboldened not to pay their mortgages and to push cases to trial. To put it differently (and forgive me if this sounds sexist, but it’s a comparison with which I can related since I have a little sister) … going to trial for a bank is like a big brother getting into a fight with his little sister. Why do it? If you win, you’re supposed to win – you’re bigger, and she’s a girl. If you lose, then, good grief! You lost a fight to a girl! Rather than risking that humiliation, isn’t it better to avoid the possibility altogether?
Hence, there are only two ways a bank can “win” a foreclosure case – summary judgment and trial - but summary judgment is hard to get and banks typically don’t want trials. So what happens? Foreclosure cases often languish. Banks file them, but when homeowners defend those cases with an experienced foreclosure attorney, the cases often progress at a slow rate. The banks’ lawyers have so many other cases, it’s easy for them to ignore these cases and work on others.
Personally, I don’t see anything wrong with this dynamic. When I represent plaintiffs in lawsuits against insurance companies, I have to work to push the case towards judgment, and if I don’t, the case languishes. Do you think anybody is helping me move the case forward if I don’t work on that file? Heck no! That’s just how it works – when you’re the plaintiff, and you want a remedy through the court system, it’s your burden to prosecute your case towards judgment; if you don’t, you don’t get that remedy. Foreclosure cases operate the same way – the banks want relief, so they must prosecute their cases towards judgment; if they don’t, then they don’t get a foreclosure (and the homeowner remains in his/her home while the case is pending).
Many Florida judges don’t like this dynamic. They see cases languishing and, in an ongoing effort to reduce the backlog of cases from their docket, they sometimes take actions to advance cases towards judgment. Lee County in particular is notorious for this, setting cases for trial right after they are filed. I’ve already expressed my dislike for judges acting in this manner at length, so instead of rehashing that, let’s evaluate this issue from a procedural perspective.
Under established law, a case can only be set for trial (in a foreclosure lawsuit or any other type of case) if it is “at issue.” This means, in layman’s terms, that all motions to dismiss filed by the homeowner have been denied and the homeowner has filed an Answer to the Complaint. (It’s more complicated than that, but that’s the simple explanation.) See Fla.R.Civ.P. 1.440.
If a foreclosure case has not progressed to that point, i.e. where it is “at issue,” yet the judge sets it for trial anyway, then the judge is committing legal error that should be reversed on appeal. It may seem hard to believe, but if a judge sets a foreclosure lawsuit for trial prematurely, and the bank wins at trial, the appellate court would/should reverse that foreclosure. It doesn’t matter if, substantively, the bank was perfectly entitled to foreclosure – from a procedural perspective, the trial was set prematurely and should not have taken place. See Bennett v. Continental Chemicals, Inc., 492 So. 2d 724 (Fla. 1st DCA 1986) (en banc); Precision Constructors, Inc. v. Valtec Construction Corp., 825 So. 2d 1062 (Fla. 3d DCA 2002).
If you’re defending a foreclosure lawsuit and the bank or the judge is trying to set it for trial prematurely, make sure you cite Rule 1.440, Bennett, and Precision Constructors. Respectfully let the judge know that he/she will be reversed on appeal, even if the bank is otherwise entitled to foreclosure. That may sound harsh, but these rules of procedure are in place for a reason, and it’s incumbent on everyone to follow these rules in all lawsuits, including foreclosure cases.
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Shannon Boehnken discusses some eye-opening statistics on Florida’s foreclosure process in today’s Tampa Tribune. According to LPS Applied Analytics, it takes, on average, 673 days for a foreclosure sale to take place in Florida after a homeowner stops paying his/her mortgage. That means, on average, Florida homeowners can stay in their homes for 673 days after they stop paying their mortgage. A few things jump out at me about this.
First, this figure is the average of all foreclosures, including uncontested cases. For those homeowners who fight their foreclosure lawsuit with an experienced foreclosure defense lawyer, that number is sure to be higher. Consider this another reason to fight your foreclosure!
Second, one big reason the number is so high – 673 days! - is because banks take so long, even after a foreclosure judgment is entered, to set the foreclosure sale. There is absolutely no excuse for this delay, and that’s the point I tried to get across via my comments to Shannon.
Bankers like to argue that the real estate market would improve if foreclosures were processed quicker (hence the quotes in the article). It sounds like a reasonable position – prosecute foreclosures quicker, sell homes faster. Unfortunately, that position sounds reasonable, but it’s 100% spin and is totally untrue. The reality is that banks aren’t setting foreclosure sales on cases they’ve already won because they don’t want title to these properties.
You see, when the bank sets a foreclosure sale, that means the bank must take title (unless a third party is the high bidder, which is rare). But the banks don’t want to take title because they don’t want to pay taxes, insurance, and maintenance expenses. So what happens? The banks get a foreclosure judgment, and scare the homeowner into vacating, but they don’t set the sale. Instead, they try to find a third party who will buy the house, ensuring there is immediately a buyer in place so the bank never holds title.
So when bankers say “we’re trying to prosecute foreclosure cases quicker to get abandoned homes on the market,” don’t believe it. Typically, homes are abandoned because banks won a foreclosure lawsuit, and scared the homeowner into vacating, but won’t set a foreclosure sale because they don’t want title to the property. In the interim – the time between when the homeowner vacates and the bank sets the sale and sells the property – the home is vacant.
If you disagree, think about it like this. Most homeowners, and my clients in particular, want to stay in their homes. My clients leave only when they are forced to leave. If the banks would sell the homes immediately after homeowners are forced to leave, guess what? There would be no abandoned homes. That doesn’t happen because banks don’t want to own the properties upon which they are foreclosing.
Here’s the article…
TAMPA – Tampa Bay homeowners can get away with not paying their mortgage payments for about 285 days before lenders even begin to take the house back. And if you think that’s a long time, get this: it takes about 673 days before the house is sold and the homeowner kicked out, according to data compiled by LPS Applied Analytics, which provides technology and data to the mortgage industry.
That puts the Tampa-St. Petersburg-Clearwater metro area near the top of the list for states that are slow to initiate foreclose. The Bay area is behind Maryland, Massachusetts, New York and California.
It’s no secret that Florida is no where near emerging from the real estate downturn. But data like this show just how clogged local courts are. The data also bring up some thorny issues for economists and industry onlookers who say the market won’t recover until a bulk of the distressed homes are sold.
“This data reflects that our system is overwhelmed,” said Mike Larson, a real estate analyst with Weiss Research. “It also reflects the pressure from government and others to come up with foreclosure alternatives. That’s good or bad, depending on your perspective.”
One of the reasons why it takes so long to foreclosure on Florida homes is because a judge must sign off on foreclosures in the Sunshine State. Courts are working through a backlog of tens of thousands of pending foreclosures. Some lenders halted or dramatically slowed foreclosure proceedings, amid government programs to keep struggling Americans in their homes.
Some, such as the Florida Bankers Association, have tried in the past to change Florida’s foreclosure process so a judge doesn’t have to sign off on foreclosures. Supporters say it would help improve the economy faster. However, that could create even more problems, say consumer groups, who point to recent cases involving sloppy practices, even fraud, by lenders. At least with a judge, they say, there is some opportunity for protection for struggling homeowners.
Alex Sanchez, president and chief executive for the Florida Bankers Association, supported a legislative bill last spring that would have allowed lenders to foreclose without judge approval. “I have Floridians emailing me, asking that we foreclose on their neighbors’ empty home faster,” Sanchez said. “They don’t want to live by the eyesore. Being a non-judicial state would streamline the process.”
There are 30 states that have a non-judicial foreclosure process, allowing lenders to foreclose on properties in as little as a month. Under Florida law, a lender can take back a home only if it files a foreclosure lawsuit and is granted one from a judge. Because of a backlog of nearly 500,000 foreclosures, the process can take several months to a year or longer.
The proposed bill, which was sponsored by Tom Grady, R-Naples, would have changed that by allowing lenders to skip legal proceedings unless the borrower requests the foreclosure go through the courts. Lenders could have foreclosed in as little as 90 days.
The controversial bill, however, hit such resistance from foreclosure defense attorneys and consumer groups that it didn’t get very far. “The faster we can get these properties rehabilitated and sold to someone who will clean them up, the faster our economy will recover,” Sanchez said.
Lenders foreclosing faster wouldn’t help, said Mark Stopa, a Tampa foreclosure defense attorney.
“Banks want to get the judgment so they can write it off their books, but they don’t want to take title and sell the home,” Stopa said. “The LPS data shows how long it takes before they sell homes. “I’ve seen so many homeowners move out because they lose their case and then the bank cancels the sale, and the home stays empty.”
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I’m pleased to read this decision from Florida’s First District Court of Appeal. The ruling says, essentially, that when banks mislead homowners into believing their foreclosure lawsuit will be “on hold” while their loan modification is being reviewed, then obtain a Final Judgment of Foreclosure anyway, the foreclosure should not stand. That seems fair – why should a bank be able to lie and say a foreclosure is “on hold” and get a foreclosure anyway? I see two lessons to be learned here: (1) if the bank tells you your foreclosure case is “on hold” while your modification is being reviewed, don’t believe it; and (2) banks cannot obtain a foreclosure judgment if they’ve misled you in this way, so if this happened to you – fight back!
Although the court’s ruling is largely good, I’m still a bit disappointed. This sounds technical, but you may notice how the Court reversed the foreclosure but “remanded” for an evidentiary hearing on the motion to vacate the foreclosure. This means that the appellate court directed the trial court to conduct an evidentiary hearing, i.e. a hearing with live testimony, to evaluate the merits of the motion. Unfortunately, this leaves open the possibility (as crazy as it sounds) that the lower court could deny the motion even after this appellate ruling, keeping the foreclosure judgment in place.
Respectfully, this aspect of the decision is just plain wrong. The court’s decision reveals that the bank presented no evidence in opposition to the motion. In other words, it was undisputed that the bank deceived the homeowner into believing the foreclosure would be “on hold” while the modification was being reviewed – the homeowner presented an affidavit establishing that fact and the bank presented nothing in opposition.
With respect to the judges who wrote this decision, the purpose of an evidentiary hearing is for courts to resolve disputes in the facts. Where only one side presents affidavits, there are no disputes in the facts, so there is no need for an evidentiary hearing. In other words, the homeowner’s affidavit was undisputed, so thoat affidavit should have carried the day, and the motion should have been granted, without the need for an evidentiary hearing (and without any possibility that the motion could be denied).
There are legions of cases about this. I’ve seen many lawyers, even judges, misunderstand this rule of law, but it’s not that complicated. When the bank and a homeowner present affidavits with conflicting facts, the judge must conduct an evidentiary hearing, i.e. a hearing with live testimony, and decide who he believes. If only one side presents an affidavit, however, that side’s affidavit controls and there is no reason for live testimony.
For example, if the homeowner signs an affidavit that the traffic light was red, and the bank signs an affidavit saying the traffic light was green, the judges must conduct an evidentiary hearing. But if the homeowner signs an affidavit that the traffic light was red, and the bank does not present an affidavit, the judge has to conclude the traffic light was red.
It works the same way with loan modifications. If the homeowner presents an affidavit that the bank deceived them into believing the foreclosure lawsuit was “on hold,” and the bank presents no affidavit, the judge must conclude that the bank deceived the homeowner.
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I’ve read and re-read the Press Release of Honorable Thomas McGrady, Chief Judge of Florida’s Sixth Judicial Circuit. I understand where Judge McGrady is coming from, and I agree with him in certain respects. In others, however, I respectfully but strongly disagree, so much so that I feel compelled to respond.
First off, I agree that many judges should be commended for “upholding their oath of office” and “following the law.” Florida’s judges are facing an unprecedented challenge vis a vis the incredible volume of foreclosure cases, and many judges have performed admirably, particularly those in the Sixth Judicial Circuit over which Judge McGrady presides. Let’s put it this way – my biggest frustration as a foreclosure defense attorney is that judges so routinely treat foreclosure lawsuits much differently than other lawsuits. With a few glaring exceptions (who I will not name but I’m sure Judge McGrady knows who I’m talking about), the judges in the Sixth Judicial Circuit generally do not act this way, and that’s certainly a good thing.
That said, I respectfully but firmly disagree with Judge McGrady’s broad-sweeping statements regarding foreclosure cases in the entire state of Florida. With all due respect, Judge, you may realize what’s happening in the Sixth Judicial Circuit, but I don’t believe you know what’s happening in other counties, so I don’t think it’s fair for you to criticize anyone who is commenting on events in other counties in Florida.
Every day, it’s a battle for foreclosure defense attorneys such as myself to ensure the most basic rights for homeowners in foreclosure cases. Many times, it feels like we aren’t just battling the banks and their lawyers, but the judges as well. Sometimes, I half-expect these judges, as a hearing concludes, to rip apart their robes and reveal a “Bank of America” T-Shirt exposed underneath. You may think that sounds absurd, but, all too often, that is the climate I’ve seen and felt as a foreclosure defense lawyer in Florida.
You obviously feel passionately that these problems are not pervasive in the Sixth Judicial Circuit, and I’m not going to argue with you about that. Instead, I’ll say this – as for the rest of Florida, you haven’t seen what I’ve seen:
- You haven’t seen a Palm Beach senior judge, at the start of a rocket docket of more than 100 summary judgment motions, assert he’s “heard it all before,” limit the arguments of homeowners and their attorneys to sixty seconds, even going so far as to count down the time as the minute concludes. You may think there aren’t “robo-judges” in Florida, but how else would you define this? Remember – those were summary judgment motions.
- You haven’t seen a senior judge in Tampa let the bank’s lawyer argue for 4 pages of transcript at a hearing on a Motion for Ssummary Judgment, then limit the defense argument to 4 lines of transcript, cut off the attorney after those four lines, and enter summary judgment without reading or looking at the opposing affidavit, written response, motion to vacate default, or motion to stay for military status (justifying his conduct in the face of due process objections by asserting it was “too little, too late” since the case had been pending for two years).
- You haven’t seen Lee County judges systematically and sua sponte require docket soundings in all foreclosure cases, immediately after the cases are filed (without clearing the date with counsel and without allowing phone appearances), and require all discovery be completed in two months, for the purpose of granting summary judgment or setting trial, even though the case is not at issue and the homeowner’s motion to dismiss has not been adjudicated.
- You haven’t been told, by a senior judge in Hernando County, that a plaintiff’s attorney can schedule a summary judgment hearing whenever he wants, without clearing the date with defense counsel (or even knowing defense counsel has a conflict), and that if defense counsel has “a problem with it,” he needs to file a motion to strike the hearing. You didn’t hear this judge assert, when defense counsel complained about the procedure, that it was his “job,” at the instruction of the Florida Supreme Court, to dispose of foreclosure cases as quickly as possible.
- You haven’t tried to set hearings on defense motions in foreclosure cases, only to have court assistants or administrators tell you that the available hearing times were reserved exclusively for plaintiffs’ motions. Of course, there is never a time set aside for defense motions – only for the banks’ motions.
- You haven’t tried to attend foreclosure hearings in Tampa (Section I, on the fifth floor) only to be told those hearings are not open for public access.
- You haven’t received dozens of conformed Orders on disputed matters, ex parte, without notice and without hearing, which most Florida judges sign routinely, even when it is obvious that these Orders are not agreed Orders, usually without giving defense counsel a chance to object. For instance, I once had a situation in Tampa where I prevailed on a motion after a hearing and the Judge entered an Order in my client’s favor, I prevailed on rehearing and the Judge entered a second Order in my client’s favor, yet, weeks later, the bank’s attorney submitted an Order, ex parte, that reversed the Court’s rulings, and the judge executed it before I received a copy in the mail or a chance to respond Respectfully, this never happens except in foreclosure cases, yet in the foreclosure context, it happens routinely.
- You haven’t had a client have a Final Judgment of Foreclosure entered against him – hours prior to the beginning of the summary judgment hearing, then have the judge explain this was her “procedure.”
- You haven’t seen the Administrative Orders in Orange, Seminole, and Lee Counties, which systematically prohibit any phone appearances in foreclosure cases, in direct contravention of Fla.R.Jud.Admin. 2.530, which requires that phone appearances be granted for all hearings of 15 minutes or less absent good cause. (It is my opinion that these Orders exist to make it harder for attorneys to defend homeowners and, hence, to cause more foreclosure cases to go uncontested).
- You haven’t witnessed senior judges routinely reschedule hearings where the defense counsel is present but plaintiff’s counsel is not, yet systematically grant the relief sought by plaintiffs when plaintiff’s counsel is present and defense counsel is not. This double-standard is, respectfully, gross, yet it happens on a regular basis throughout Florida courtrooms in foreclosure cases.
- You haven’t successfully argued that a summary judgment hearing should be stricken from the calendar, had plaintiff’s counsel cancel that hearing pursuant to the court’s Order, yet have a senior judge enter a Final Judgment of Foreclosure (even though nobody was present at the hearing) because she did not even look in the court file or the docket, so she did not see that the hearing had been cancelled.
- You haven’t watched a Brevard County judge repeatedly chastize foreclosure defense attorneys for filing motions to dismiss, arguing it was a “waste of time” and that counsel should be “trying to settle the cases,” then, when counsel responded that the motions to dismiss were sometimes granted, angrily retort that “accomplished nothing” because the bank could amend or re-file. Of course, this judge gave no explanation how it was possible to “settle” cases with banks when judges such as himself make it so apparent that he is hostile towards homeowners.
As I re-read your article, Judge, I’m troubled at the apparent insinuation that recent media reports and news stories are not based on fact. Generally speaking, they are. The media is not making up stories about foreclosure fraud and robo-signers. These stories exist because of real events that have happened to real people. Hence, the problem, in my view, is not that the media or foreclosure attorneys have misled the public into a negative perception about the judiciary, but rather that there are legitimate problems in how foreclosure cases are being handled in our courts. That sounds harsh, but, respectfully, if nothing were amiss, then there would be no news stories.
Essentially what I’m saying is this – I hear what you’re saying in your article, but I respectfully submit that your assertions, as well as your target audience, are misplaced. Instead of trying to speak to the public at large, and assure them the judiciary is fair through your words, prove the judiciary is fair through actions. Prove it by influencing other judges, throughout Florida, to handle the foreclosure crisis more like the Sixth Judicial Circuit. Convince Lee County to stop issuing those Orders setting docket soundings at the inception of a case. Tell Orange County to stop prohibiting phone appearances. Help all Florida judges realize that disputed Orders should not be entered ex parte, even in foreclosure cases. Convince all judges that it’s not fair to reschedule hearings where plaintiff’s counsel does not attend but to rule for the plaintiff when defense counsel does not appear. Suggest that the Florida Supreme Court amend the rule on lack of prosecution in foreclosure cases, so as to dismiss foreclosure lawsuits that are languishing.
As I see it, if you can use your influence to help fix the problem, you won’t feel the need to issue press releases like the one you did, as the public’s perception of the judicial system will take care of itself.
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I’ve spoken about reversing a Final Judgment of Foreclosure for invalid service of process on this blog on multiple occasions. In fact, I have hearings coming up in two different cases (one on Monday morning in Jacksonville) with this precise issue. Hence, I’m pleased to read the following decision from Florida’s Third District Court of Appeal, which reversed a Final Judgment of Foreclosure for invalid service. (Hat tip to www.4closurefraud.org for pointing this out to me.)
If you think this argument may apply in your case, bear in mind the two critical facts at play here: (1) the homeowner was never served; and (2) the homeowner never filed any papers in the case and otherwise did not defend. When those two facts both apply, a Final Judgment is void and can be vacated at any time, even years later.
Here’s a link to the opinon.
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