Archive for March 25th, 2011

A Crazy Admission and a Judge’s Change of Heart

It was September, 2010.  I was defending a motion for summary judgment before Judge Parsons (Volusia County).  The argument was really strong.  Yet when the hearing began, I felt like I was battling for my life.  Judge Parsons’ displeasure with foreclosure defense oozed from every fiber of his being.  He asked pointed question after pointed question, grilling me for cogent explanations why summary judgment should be denied.  I left the hearing having prevailed, but having felt like I just ran a marathon.  Even as he denied the MSJ, the judge made it clear he wasn’t pleased to have to do so.

Fast forward to today.  I’m attending a hearing before Judge Parsons on a Motion to Vacate an Ex Parte Order (in an unrelated case).  The plaintiff, a securitized trust, filed suit in the name of U.S. Bank, as trustee for X trust.  (It wasn’t “X” but that’s shorter than typing the full name.)  A Notice of Lis Pendens, Assignment of Mortgage, and Motion for Summary Judgment were all in that plaintiff’s name.  In fact, in an affidavit supporting summary judgment, a representative testified that U.S. Bank, as trustee for X trust, testified that the plaintiff was the owner and holder of the Note.  My client, pro se at the time, filed a motion to dismiss and motion to strike the complaint as a sham.  Both were denied. 

Months later, the plaintiff’s lawyer filed a motion to correct “scrivener’s error” on the Complaint, Lis Pendens, and Assignment of Mortgage.  According to the motion, the Plaintiff, i.e. the securitized trust, “did not exist.”  Did not exist!   That bears repeating:

The bank’s lawyer admitted the securitized trust that filed the lawsuit, sought summary judgment, and filed an affidavit in support did not exist.

It wasn’t like the trust name was off by one letter, either (like could theoretically happen with a scrivener’s error – the name was totally different.  Anyway, the Plaintiff asked the Court, ex parte and without hearing, to correct the alleged scrivener’s error by changing the name of the plaintiff as well as the assignee on the Assignment of Mortgage.  Acting ex parte, Judge Parsons entered an Order granting the motion.

Justifiably feeling like he wasn’t getting a fair shake, the homeowner hired Stopa Law Firm.  We moved to vacate the ex parte Order, arguing we should have had a chance to contest the motion to correct the purported “scrivener’s error” at a duly-noticed hearing.  Today, Judge Parsons granted that motion.  The hearing was brief but very interesting.  With very little argument, the judge apologized for entering the Order ex parte, noting that such matters are often uncontested and he did not realize this one was contested.  Quickly, the issue became whether the motion to correct the alleged scrivener’s error should be heard right then or at a future hearing. 

The bank’s lawyer asked it to be heard right then, arguing the case had been delayed.  The judge interjected, saying something to the effect of:

The bank is complaining about delay?  I find that ironic.  In October, I was handling 40-50 foreclosure cases at a time.  Nowadays, I can’t get a bank to come have a hearing.  The banks all shut down in October, stopped prosecuting these cases.  I don’t see how the bank is now in a position to complain about delay.

From my perspective, it wasn’t just the ruling in this case, or what Judge Parsons said.  It seemed to me that his entire approach/perspective on foreclosure cases had changed.  Apparently, he realized that the banks chose to shut down operations due to their ongoing, systemic fraud and he wasn’t letting them get away with it any more.  Maybe I’m reading too much into it, but the ruling and the commentary were a stark contrast to his demeanor prior to October and a refreshing change. 

So as things now stand, the plaintiff is prosecuting a case on behalf of a trust that its lawyer has admitted does not exist.  The hearing on the motion to correct “scrivener’s error” should be fun!

Mark Stopa

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