Archive for September 11th, 2011

Ex Parte Orders Substituting Plaintiffs, Entitlement to Attorneys’ Fees

I’m so tired of watching banks’ lawyers seeking and obtaining relief from judges, ex parte, without notice and without hearing, especially when that relief is on significant issues in the lawsuit. 

In one case I’m defending, for example, a Tampa judge recently denied a Motion to Dismiss without hearing and without explanation, even though the Note attached to the Complaint is in the name of a different bank, the Note has no indorsement, and there is no Assignment of Mortgage. 

Sadly, I’m used to well-taken arguments like that getting rejected.  My bigger concern is that I’ve been defending the case based on the plaintiff’s lack of standing for two years, yet the bank’s lawyer submitted an Order to the judge, without my knowledge, changing the plaintiff from Chase Home Finance, LLC to Fannie Mae.  Worse yet, the judge signed the Order, without notice, without hearing, and without me even knowing the Order had been submitted! 

This triggers two significant thoughts. 

First, how appalling is this process?  I mean, seriously – do I even need to elaborate here?  How can a bank lawyer change the plaintiff, ex parte, when the identity of the plaintiff is the very issue being litigated? 

Second, it seems to me like my client is entitled to attorneys’ fees for having prevailed on all claims brought by the initial plaintiff, Chase Home Finance, LLC.  A homeowner’s entitlement to attorneys’ fees is well-established when a bank voluntarily dismisses a foreclosure case or when the court dismisses it without leave to amend.  I realize an Order changing the plaintiff isn’t the same thing, but it’s close.  Here, for instance, Chase Home Finance, LLC is no longer bringing any claims against my client, even though my client spent the last two years defending such claims.  As between Chase and my client, that’s basically the same as a voluntary dismissal.   

From a bigger-picture perspective, my hope is that pushing this argument will force changes to this rather obvious lack of due process.  It’s time that banks’ lawyers stop seeking ex parte relief on significant issues in contested foreclosure cases, and it’s time that judges stop awarding that relief ex parte.  If it takes some fee awards to make everyone realize that ex parte orders changing the plaintiff should not be a part of normal procedure in foreclosure cases, then so be it. 

Here is the motion I filed on this issue.

Mark Stopa

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