Archive for May 11th, 2012

“Findings” Without Evidence – An Appellate Brief

I had a Case Management Conference in a foreclosure case back in April.  The Court scheduled the CMC and warned the Plaintiff, in its Order, that its failure to attend “will” result in dismissal of the pending foreclosure lawsuit.  The CMC proceeded as scheduled (along with many others that same time) and despite the court’s warning, and despite the hearing lasting for an hour, nobody attended for the Plaintiff.  As such, the court entered an Order dismissing the case.  All is good, right?

Well, four days later, a different judge signed an Order vacating that Order of Dismissal, sua sponte, without notice, without hearing, and without evidence, making a “finding” that “local counsel was tied up in a different courtroom,” as if to justify the plaintiff’s failure to appear.  I respectfully but firmly disagree with this ruling, so I’ve filed an appeal of this Order vacating the dismissal.  Here is the Initial Brief.

I think it’s clear that a court cannot make a factual “finding” that “local counsel was tied up in a different courtroom” without evidence and without affording me notice and an opportunity to be heard.  For instance, who was this “local counsel”?  How could he/she have been “tied up” for over an hour without anyone knowing it?  Why did he/she not advice court personnel of his/her alleged conflict?  If there was an attorney who was truly “tied up,” why didn’t the Order identify this attorney and the nature of the conflict?  These are all questions that I could and should have been afforded the opportunity to ask before the court sua sponte vacated its Order of dismissal.  In other words, how could the court have concluded this “local counsel” was “tied up” without a hearing and without any evidence?  In my view, it could not.

I also believe the Order setting aside the dismissal was improper because it was entered by a different judge than the one who dismissed the case and because, even if “local counsel” was “tied up,” the actions of any attorney who is not counsel of record are a nullity.  The Initial Brief spells out these arguments, with case law.

Perhaps the biggest thing to take from this situation is to remember that, regardless of the type of case, judges can’t make findings without evidence.  For example, if you’re at trial in a personal injury case, the defendant can’t argue in closing argument that the traffic light was red if there was not some testimony/evidence establishing such.  In the foreclosure context, judges can’t find a homeowner defaulted on payments without proof in that regard.

Regardless of the type of case, the need for evidence also necessitates notice and an opportunity to be heard – a basic notion of due process.  Without it, I’ll keep filing appeals like this one.

Mark Stopa

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Stay Pending Appeal, Cancellation of a Foreclosure Sale

I blogged previously about this transcript, where a pro se homeowner defended herself at trial but was smart enough to bring a court reporter.  Well, I took her case for purposes of an appeal, and I loved her position so much that I’ve already drafted the Initial Brief for the Second District.  The brief is not yet complete (as I can’t include the record cites – the parts where there are random “R”s in the brief – until the clerk finishes the record), but I found the argument so compelling that I decided to ask the trial court (the very court which entered the Final Judgment) to cancel the foreclosure sale and stay the foreclosure pending my prosecution of the appeal.

That may sound confusing, so let’s simplify.  When a court grants a Final Judgment of Foreclosure, a foreclosure sale is set along with it – often as soon as 30 days later.  As a result, the homeowner may think he/she has a meritorious appeal, but there is virtually no chance of an appeal being finished before the scheduled sale, no matter how meritorious the appeal might be.  The briefing process alone takes months, sometimes more.  Hence, unless something is done to stop the sale, the home will get sold – and the homeowner forced to move – before the appeal can be completed.

This is where Fla.R.App.Pro. 9.310 comes into play.  Under that Rule, the trial court judge has the discretion to basically say “I know I granted a Final Judgment of Foreclosure against you, and I know I scheduled a foreclosure sale, but I think your chances of winning on appeal are strong enough that I’m going to cancel the foreclosure sale to allow you to bring the appeal.”  Then, if the trial court judge denies that motion, the Second District can entertain such a motion as well.

As you could imagine, this creates a pretty awkward dynamic.  Essentially, it’s like saying “Judge, I know you just ruled against me, but I think you were wrong, and I want you to admit you may have been wrong and allow me to appeal your ruling.”  For obvious reasons, stays pending appeal are often denied, putting homeowners in the unenviable position of trying to prosecute an appeal even after a foreclosure sale is over.

I’m thrilled to say, though, that when I gave the lower court judge this Emergency Motion for Stay Pending Appeal, he granted it, cancelling the scheduled foreclosure sale and allowing me to finish the appeal without risk of my client being dispossessed in the meantime.  The motion was pretty straightforward – I basically said the appeal was meritorious and attached the Initial Brief so the judge could see for himself.

If you can bear a bit of legal jargon, I think the Initial Brief is worth the read.  It discusses what’s necessary to re-establish a lost note under Fla. Stat. 673.3091 and the procedure for setting trial under Rule 1.440.  There’s also a lengthy discussion about why this plaintiff should suffer an adverse judgment, as opposed to getting a new trial, given the unconscionable fact-pattern with which we have all become far too accustomed in foreclosure-world (nearly five years of delays in prosecution by the plaintiff despite going against a pro se homeowner, numerous continuances given for the bank despite its apathetic prosecution of its own case, and the judge sua sponte prosecuting the case and helping the plaintiff along, etc.).

Two other things to keep in mind here – if you’re thinking about an appeal, make sure you keep Rule 9.310 in mind.  A meritorious appeal may not mean a lot if you’re forced to move in the meantime.  And if your case isn’t over and you think you might want to appeal, make sure you get a transcript of the trial – none of this is possible without a trial transcript.

Mark Stopa

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