Posted on October 31st, 2012 by Mark Stopa
In addition to foreclosure defense, my firm also represents homeowners in bankruptcy proceedings throughout the Middle District of Florida. Even though bankruptcy isn’t for everyone, I couldn’t imagine not offering this service, as bankruptcy and foreclosure often go hand in hand. To illustrate, one of the benefits of bankruptcy is that it entitles homeowners to an “automatic stay” of their foreclosure case. In layman’s terms, this means the foreclosure case must stop, dead in its tracks, until the bankruptcy court rules it can proceed. As a result, it makes perfect sense for many homeowners to incorporate bankruptcy into their foreclosure defense strategies.
For example, suppose a homeowner has a trial approaching in the foreclosure case and is concerned he/she may lose. It may make sense to file bankruptcy, right before the trial, as, that way, the state court is required to cancel the trial as the bankruptcy proceeds. This “stay” doesn’t last forever, of course, but it’s a good way to prevent a bank from proceeding with a scheduled hearing or trial in a foreclosure case.
Typically, whenever any attorney mentions that a bankruptcy has been filed or that an automatic stay is in place, the state court judges are loathe to do anything. That’s how federal law works – when the stay is in place, the state court lawsuit cannot proceed. It’s an “automatic” stay – the foreclosure case automatically stops when the bankruptcy is filed.
Recently, however, I’ve encountered a judge who thought it was okay to proceed with the foreclosure case even when a homeowner filed bankruptcy. The judge was not intending to proceed with substantive motions, but to hold a “case management conference” or a “status conference” right after a bankruptcy is filed.
That prompted me to file this motion, where I asked the bankruptcy court to require the foreclosure court to honor the automatic stay and to refrain from conducting further court proceedings in the face of that stay. Today, I received this signed Order, granting the motion and directing the foreclosure court to refrain from any court proceedings in light of the automatic stay.
As you’re fighting foreclosure, keep this dynamic in mind. A state court judge cannot proceed with a foreclosure case when you file bankruptcy, and if the judge tries to do so, the bankruptcy court can and likely will intervene.
Mark Stopa
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Posted on October 31st, 2012 by Mark Stopa
Have you ever made an argument in a foreclosure case, and you think it’s a solid, well-taken argument, but there is no case law directly on point? It can create a sinking feeling. “I think I’m right, but how will I ever get a judge to agree with me when there aren’t any appellate court decisions which have ruled this way already?” The tendency, when presented with such a situation, can be to shy away from the argument. To back down. To let someone else try to make the argument first. “I don’t want to look foolish.” “I don’t want to be wrong.” “If this is such a good argument, why aren’t there any cases that have ruled this way already?”
While I understand this feeling, this is absolutely and unequivocally the wrong mindset.
As foreclosure defense lawyers, many of the issues with which we are confronted are novel. That’s just the nature of the beast. Just think of it this way – when, prior to now, in the entire history of America, have property values collapsed by half (or more), causing millions of Americans to face foreclosure, essentially all at once? Obviously, the answer is “never.” These are unprecedented times, so it should come as no surprise that, in the history of jurisprudence, our court system has never before been confronted with some of the legal issues with which we now deal on a daily basis. As a result, to defend homeowners the right way, we have no choice but to argue things we may have never argued before – to present arguments to judges they may have never heard before, for which there is no case law.
One such example? Asking a judge to enter summary judgment for a homeowner in a foreclosure case.
In Florida, I know of no appellate decisions that directly authorize this. Such case law may exist, for example, if it’s undisputed the homeowner paid the mortgage in full all along, but that’s not what I’m talking about here. I’m talking about cases where homeowners are behind on their mortgage payments, perhaps significantly behind, and the bank has filed suit for foreclosure, but the homeowner is entitled to prevail on that case anyway.
I introduced this concept a few months ago,via this blog post. In the ensuing months, I’ve made that same argument many times before Florida judges, often before judges who had never heard it before.
Sometimes, quite candidly, it’s not easy. A few times, the judge seemed to think I was nuts, at least at first, when I told the court that I wanted summary judgment for my client. Typically, however, once I get into the argument, and explain why my client should prevail, that initial skepticism is replaced with intrigue at the argument. Often, in fact, these judges have agreed with my position, entering orders granting summary judgment and dismissing the case.
Invariably, do you know what happens when I go back before that same judge a second time? Or a third time? It’s easier. The judge is familiar with the argument. The judge understands the legal issues and knows how they apply. I’m no longer the crazy lawyer asking for a client who hasn’t paid his/her mortgage to prevail, but the lawyer making sound, legitimate arguments that are perfectly consistent with the law.
Do you know what makes all of this a bit easier? When the judge I’m arguing before sees that other judges have agreed with my argument. That’s why, whenever I have a hearing on this issue, I bring the Orders I’ve obtained which entered summary judgments for my clients in other cases. It’s one thing for me to argue something – it’s another for the judge to see that 5, 10, or 15 other, Florida judges have agreed with my argument and dismissed the case as a result.
In the grand scheme of things, my “success” here is limited. I know that this argument isn’t being made everywhere in Florida. I know there are many capable judges who have yet to hear the argument. I can’t argue this for everyone.
It’s time to get the word out, folks.
Below are several of the Orders I’ve obtained upon making these arguments. By posting these Orders, I am not suggesting that the same result will happen in any particular case. That said, it’s certainly possible, and I have to think the chances for any particular homeowner will improve if/when the judge sees that numerous other, Florida judges have agreed with this argument. Hence, that’s the point here – to blaze a trail. To help everyone (including judges unfamiliar with the argument) realize this argument has worked, and can work in the future. Everyone in foreclosure-world should be aware of these arguments.
Order Granting Summary Judgment – Judge Carven Angel (Hernando County)
Order Granting Summary Judgment – Judge Amy Williams (Pinellas County)
Order Granting Summary Judgment – Judge Pamela Campbell (Pinellas County)
Order Granting Summary Judgment – Judge John Schaefer (Pinellas County)
Order Granting Summary Judgment – Judge Amy Williams (Pinellas County)
Order Granting Summary Judgment – Judge W. Douglas Baird (Pinellas County)
Order Granting Summary Judgment – Judge Robert Foster (Hillsborough County)
Order Granting Summary Judgment – Judge Donald Evans (Hillsborough County)
Order Granting Summary Judgment – Judge Michele Sisco (Hillsborough County)
Order Granting Summary Judgment – Judge Frank Gomez (Hillsborough County)
Order Granting Summary Judgment – Judge James Barton (Hillsborough County)
Order Granting Summary Judgment – Judge J. Rogers Padgett (Hillsborough County)
Order Granting Summary Judgment – Judge Robert Foster (Hillsborough County)
Order Granting Summary Judgment – Judge James Barton (Hillsborough County)
Order Granting Summary Judgment – Judge Donald Evans (Hillsborough County)
Order Granting Summary Judgment – Judge Donald Evans (Hillsborough County)
Order Granting Summary Judgment – Judge George Shahood (St. Lucie County)
Order Granting Summary Judgment – Judge Thomas Kirkland (Orange County)
Order Granting Summary Judgment – Judge Lynn Tepper (Pasco County)
For those of you counting, that’s 14 different Florida judges who have entered summary judgment for a homeowner in a foreclosure case. (Undoubtedly there may be more of which I’m not aware.)
So take these arguments. Use them and apply them, as appropriate. Keep fighting. And, more than anything, realize that there are virtually always defenses that homeowners can utilize, even those facing foreclosure.
Mark Stopa
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