Archive for April 29th, 2011

Proper Procedure Works Both Ways; a Lesson Learned

I’ve read a few blogs/posts from colleagues in the foreclosure defense industry criticizing this ruling from Florida’s Fourth District Court of Appeal, which affirmed an order quashing a subpoena of the Attorney General directed to Shapiro & Fishman.  While I understand the frustration here, and by no means am I giving S&F a pass, I must respectfully disagree. 

Applying proper procedure works both ways.  If we want banks, the foreclosure mills, and judges to follow it, then homeowners and the AG must as well.  As I read the Fourth District’s ruling, it seems clear the court is not saying S&F is undeserving of inquiry, nor is the court passing on the merits of any potential sanction/penalty/investigation.  It is merely saying the procedure employed by the Attorney General was the incorrect way to obtain the result sought.  In fact, the court even suggested one correct procedure, i.e. a criminal investigative subpoena. 

I’m not saying I’m happy with this ruling.  What I’m saying is that if we, as homeowners and defense advocates, want to force judges to follow the letter of the law in foreclosure cases when doing so would inure to our benefit, we cannot be too terribly upset when they do so in a way that does not.  The point is, or should be, for everyone to follow the letter of the law regardless of the outcome, not to selectively do so in ways that only inure to our benefit. 

In other words, the moral of this ruling, in my view, is that everyone needs to follow the law and apply the correct procedures to obtain the result desired, be it banks, homeowners, judges, and even the AG’s office, and if you don’t, then you risk a bad result on the merits because of poor procedure. 

My concern about obtaining a bad result because of the utilization of the wrong procedures is especially high with pro se homeowners.  If you’re thinking about defending a foreclosure case without a lawyer, think about it like this.  The Florida Attorney General was unable to achieve the result it wanted because it employed an incorrect procedure.  If the AG doesn’t know the right procedure to employ in these cases, and loses on the merits because of it, do you think that you, as a non-lawyer homeowner, will know the correct procedures to employ against banks represented by lawyers?  Respectfully, I doubt it.  In fact, I’ve seen many a homeowner prejudice his/her case by not knowing the right procedures to apply.  Don’t learn this lesson the hard way, by making this mistake yourself – learn from the AG’s mistake.  Get a competent lawyer to help you in your foreclosure case from its inception.

Mark Stopa

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