Archive for June 15th, 2011

Retaining a Foreclosure Attorney Post-Judgment

I had an awesome day today, as I was able to get a St. Augustine judge to grant a motion for rehearing, vacate a Final Judgment of Foreclosure, and cancel a pending foreclosure sale.  The homeowner tried to defend himself, pro se, lost, and he got a lawyer involved just in the nick of time. 

After the hearing, when I got back to the office, a staff member asked me why I don’t accept more foreclosure cases where a Final Judgment of Foreclosure has already been entered.  I got this judgment vacated, so it was a legitimate question – particularly since we get inquiries for such cases on a regular basis. 

Here’s the problem.  No matter how erroneous a Final Judgment of Foreclosure may be, i.e. regardless of the existence of foreclosure-fraud, robo-signers, etc., there are certain procedures that must be followed to get a Final Judgment vacated, failing which it must remain in place. 

Specifically, the homeowner has 10 days to move for a rehearing, 30 days to file a Notice of Appeal, and, generally speaking, 1 year to file a 1.540 motion (for things like fraud on the court). 

If you don’t meet these deadlines, it doesn’t matter if you’re correct on the merits – you lose.  (The only exception is if the judgment is void for something like improper service and that argument wasn’t waived, but that’s relatively rare).  You can’t go to the appellate court on day 31; it’s too late.  Unfortunately, this is what happens on a regular basis – the homeowner loses the case via entry of a Final Judgment of Foreclosure (having defended the case pro se or not at all), and the sale date is set 60 days out.  On day 40 or 50, with the sale approaching, the homeowner realizes he better hire a lawyer.  But by then it’s basically too late.  Game over. 

In theory, you could still file a 1.540 motion, but that’s typically the equivalent of a Hail Mary.  And yes, you can still file a bankruptcy, take advantage of the automatic stay, and get the sale cancelled, but that’s basically just a stall – it’s not going to unwind the Final Judgment of Foreclosure. 

Hence, as much as I want to help homeowners facing foreclosure, I’m not going to take their money when they essentially have no chance of winning, for procedural reasons.  In other words, to answer my staff member’s question, this is why I don’t take many cases post-judgment – typically, the homeowner is procedurally barred from challenging the court’s ruling, even if it’s erroneous. 

So what’s the lesson here?  Don’t wait to hire a lawyer.  Get one right away.  Otherwise, it may be too late, even if your arguments have merit. 

I don’t think I’ll ever see a better illustration of that than what I saw today. 

At the summary judgment hearing, the pro se homeowner argued that summary judgment was inappropriate because discovery was outstanding (in particular his request for production and interrogatories).  He was right, too – there are dozens of Florida cases setting forth this proposition of law – but the judge entered summary judgment anyway. 

The homeowner hired an attorney, who quickly filed a motion for rehearing.  Months later, when the sale got rescheduled, he hired me.  I saw the motion for rehearing had been filed, and I like how the homeowner preserved the argument about outstanding discovery, so I took the case.  Anyway, at the hearing, the judge made a point of saying that he was perturbed at how the homeowner was pro se and was filing papers that were inartfully drafted.  He made a point of this, at length, before granting my motion.

Bear in mind, the argument I made, which the judge agreed with, was the exact same argument the homeowner made, pro se, which the judge rejected.  I’d like to think I made the argument more eloquently than my client did, and I supported the argument with case law.  But the judge was aware of that line of cases already.  Hence, in a sense, I didn’t do anything different than the homeowner did, except he lost and I won. 

If you think this is unfair, and the result shouldn’t be different simply because it is argued by a lawyer, I wouldn’t disagree with you.  But here’s the point.  Judges in foreclosure cases are, in my opinion, more likely to follow the law when a lawyer is arguing for the homeowner.  The way I presented the argument, I made it clear to the judge, in a respectful way, that if he didn’t vacate the Final Judgment that I would procure that result in the appellate court.  To illustrate, after showing him several cases which reversed judgments where discovery was outstanding, I asked the judge, as an alternative argument, to cancel the sale and stay the case pending appeal.  Pro se homeowners just aren’t able to do that, and without the threat of appeal, judges are more likely to what they think is fair.  Often, given how many judges feel about foreclosure cases, that is a Final Judgment of Foreclosure. 

Think about it this way – if you know your boss is looking over your shoulder while you’re working, aren’t you a little more cautious about crossing your Ts and dotting your Is?  That’s my take on how judges are in this context.  Judges often don’t want to let pro se homeowners live for free.  They’ll often do so if the law requires, but if a lawyer isn’t there showing them the law, they’re more likely to do what they want.

In sum, if you’re wondering how a lawyer can help, remember this case.  I made the same argument this pro se homeowner did, but he lost and I won.  And if you’re wondering when to hire a lawyer, remember those procedural bars.  This homeowner was lucky; many wait too long, and at that point, they’re out of luck.

Mark Stopa

Posted in Main | 11 Comments »