Posted on December 19th, 2011 by Mark Stopa
Suppose someone found thousands of terminally ill, cancer ridden patients and systematically killed them. Do you think he/she would avoid criminal prosecution for murder by arguing they were going to die anyway?
That sounds bizarre, I realize. But take a look at the statement issued today by Lender Processing Services in response to the Complaint filed by the Nevada Attorney General. The part that stuck out to me:
the company is not aware of any person who was wrongfully foreclosed upon as a result of a potential error in the processes used by its employees.
Apparently, in the eyes of LPS, the end always justifies the means, so I’d love to ask LPS:
Do you think you could commit murder without penalty if the victims were terminally ill?
Mark Stopa
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Posted on December 19th, 2011 by Mark Stopa
Several months ago, I got a foreclosure lawsuit against a Florida homeowner dismissed without prejudice and without leave to amend. Shapiro & Fishman filed an appeal on behalf of the bank, arguing the court shouldn’t have dismissed the case because verifications of foreclosure complaints can be done “on information and belief,” not in the manner set forth in Fla. Stat. 92.525.
Here is the bank’s Initial Brief and here is my Answer Brief. As you can see, the bank tried to limit the scope of the appeal to the issue of verification, i.e. whether the lower court’s interpretation of Fla.R.Civ.P. 1.110(b) is correct. My Answer Brief, by contrast, highlights several reasons why the dismissal should be affirmed, including that the court acted within its discretion by denying a 76-day extension of time for the bank to file an Amended Complaint and dismissing the lawsuit where the bank willfully disregarded the court’s Order. (Shocking, I know, that a bank would violate a Court Order.)
Before your eyes gloss over at the legalese, bear this in mind. Banks are pushing for a ruling from a Florida appellate court on the issue of verification because they don’t want to have to verify complaints in foreclosure cases in a manner that would subject them to perjury charges. Instead, they want to verify “on information and belief,” which lends itself to virtually no sanction at all. Let’s hope the Second District doesn’t allow this nebulous form of verification or, at minimum, affirms the dismissal for the other reasons stated.
Mark Stopa
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