Archive for November 19th, 2012

Motion to Cancel and NOT Reschedule Foreclosure

This motion (not in one of my cases, but available through public records) is an excellent synopsis of everything that’s wrong in foreclosure-world.  Plaintiff, a securitized trust, prosecuted a foreclosure lawsuit against a St. Petersburg homeowner.  The homeowner never defended, lost by default, and the Court entered a Final Judgment of Foreclosure in August of 2012.  On November 19, 2012, just 15 minutes before the scheduled foreclosure sale, plaintiff’s counsel filed this motion, asking the Court to cancel the sale and to NOT reschedule it, asserting:

1.  The Plaintiff is part of the National Mortgage settlement agreement entered into with HUD, the Department of Justice and the state attorneys general.

2.  This case involves a loan encompassed within said agreement.

3.  Due to conditions imposed in the settlement agreement, the Plaintiff cannot proceed to foreclosure sale at this time without potentially violating said agreement.

These allegations are eye-opening and prompt numerous, significant concerns and, unfortunately, more questions than answers.

First, if the plaintiff cannot proceed with a foreclosure sale, then what is the point of a Final Judgment of Foreclosure?  Why ask the Court for a foreclosure judgment?  Why inform this homeowner that he was in foreclosure, undoubtedly inducing him to vacate possession and not even defend the case, if the plaintiff cannot even conduct a foreclosure sale?  What, exactly, was accomplished here?  In my view, this is a great illustration of what’s wrong with foreclosure-world.  Plaintiffs are dispossessing homeowners of their homes yet aren’t taking title and aren’t putting houses back on the market.  Why?  Why?  Why?  It’s all so infuriating.

Second, why didn’t the plaintiff’s counsel inform the Court, *before* obtaining the foreclosure judgment, that the plaintiff could not proceed to sale?

Third, how many foreclosure cases presently exist where the plaintiff cannot proceed with a foreclosure sale yet that plaintiff is prosecuting the case anyway?  Thousands?  Hundreds of thousands?  Millions?  If there truly are prohibitions on conducting a foreclosure sale, then why haven’t I heard about it in any of the cases I’m actively defending?  Worse yet, how many foreclosures have already been finalized where the plaintiff was not permitted to proceed, yet foreclosed anyway?

Fourth, why are our courts continually criticized for not pushing through cases when the plaintiffs themselves can’t or won’t proceed with foreclosure?  Why are some courts set up in a manner that foreclosure cases are pushed through so quickly when the plaintiffs themselves can’t or won’t take title?

I wish I had some answers here, folks.  For now, I have to be content to raise these questions and hope that everyone involved starts to realize the perversity of the situation.

Mark Stopa

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