Archive for November, 2012

Resolving Bank Disputes, Credit Card Debts in 2012

As the end of 2012 draws near, it may not matter to you if your old credit card debts and other bank obligations remain outstanding as the calendar flips to 2013.  What difference does a new calendar year make?  None, right?

Well, it might not matter to you or me, but let me assure you … it matters to the banks.  You see, this is the time of year when the banks and credit card companies are scrambling.  They’re trying to get bad debts off their books before the end of the year so their books are cleaner for 2013.  Don’t believe me?  Trust me – I’ve started seeing it with the volume of unsolicited offers I’ve seen in my cases in the past few days, some with specific instructions that the offers have to be accepted and completed before the end of 2012.

So how can this matter for you?

If you owe $20,000 in credit card debt that you haven’t paid in two years, offer $5,000 as a one-time cash payment – to be made before the end of the year.

If you’ve been saving to try to pay a second mortgage, now is the time to offer 10 or 20 cents on the dollar – to be paid by December 31.

Yes, deals like this are possible any time of year.  The next 31 days, though, are probably your best chance of getting the best possible deal.  In fact, the closer we get to the end of the year, and the greater your ability to pay cash, the more likely you are to get a good deal.

So while you’re enjoying the holidays, take a minute and re-assess your finances.  If you’re able, make an offer to try to resolve some of your debts before the end of the year.  With the banks motivated to clean up their books heading into 2013, you might be surprised at the deal you can get.

Mark Stopa

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Florida Bar Journal article on Negotiability

This article, published in The Florida Bar journal, is a scholarly and informative, if dry, explanation of the concept of negotiability as it applies in foreclosure cases.  I really wish our courts were applying the principles of law set forth herein instead of the robotic “I have possession of the original note, with an endorsement, so I’m the holder” arguments that are inundating the courts nowadays.

Mark Stopa

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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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Homeowners in the Florida Panhandle, Here You Go

I try to help as many homeowners in Florida as possible, but I really can’t take cases in the panhandle.  It’s just too far.

Those of you in the panhandle, though, might be happy to see this Order, signed by Judge Judy Pittman Biebel, granting summary judgment for my client in a foreclosure case.  Judge Biebel was a judge in Panama City for many years before recently retiring and, apparently, she was filling in for the judges in Tampa this week.  As you can see, Judge Biebel agreed with my argument that the case should be dismissed given the plaintiff’s failure to comply with the conditions precedent set forth in paragraph 22 of the mortgage.

For those of you in the Panama City area, the Order may have some persuasive value for other judges in that area, particularly Judge Biebel, if she is acting as a senior judge in foreclosure cases in Bay County, Florida.  It’s too far for me to go, but I’d love it if others could benefit by showing the judges that this argument has already worked in other cases.

Mark Stopa

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Understanding Jurisdiction, Lack of Prosecution

This is a Petition for Writ of Prohibition that I’m filing in Florida’s Second District Court of Appeal.  It includes complicated but useful arguments about jurisdiction and dismissing cases for lack of prosecution.  These are arguments with which we must all be familiar … and if you’re not familiar or don’t understand the issues, and you’re not my client, then, well, my number is 888-450-1549.

Mark Stopa

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Procedural Fun on My Birthday

Tomorrow is my birthday, but foreclosure cases don’t stop for my birthday, so my work doesn’t, either.  Hence, though I have to go to court, I get a hearing on a fact-pattern I love.

I prevailed in obtaining an Order Granting Summary Judgment, a final order where the court dismissed the pending foreclosure case without prejudice.  The plaintiff moved for rehearing, making what may appear to be some half-way-decent arguments, centered around their contention that the hearing was cancelled, so they didn’t attend.

But here’s the fun part.  Established rules of procedure require that motions for rehearing such as this be filed within 10 days.  See Fla.R.Civ.P. 1.530.  Since Plaintiff did not do so, the court lacks jurisdiction to consider the motion, and it must be denied.  See Galvez v. Ramos, 941 So. 2d 475 (Fla. 3d DCA 2006) (“a motion for rehearing must be served within ten days after the date judgment was filed.  If not, the court lacks authority to grant rehearing. … Ramos was required to serve his Motion for Rehearing within the ten days afforded under Florida Rule of Civil Procedure 1.530(b).  He did not do this, and thus, the trial court lacked jurisdiction to entertain his motion.”); Fuller v. Fuller, 706 So. 2d 57 (Fla. 4th DCA 1998) (“Rule 1.530 provides that a motion for rehearing shall be served not later than 10 days after the date of filing of the judgment … Where a motion for rehearing was untimely, the trial court is without jurisdiction to grant it.”); Catsicas v. Catsicas, 669 So. 2d 1126 (Fla. 4th DCA 1996) (“Because the March motion for rehearing was untimely, the trial court was without jurisdiction to grant it.”).

Here, the plaintiff didn’t serve the motion within 10 days.  Hence, it should not matter whether the motion otherwise had merit – it has to be denied.

In case you hadn’t noticed, I love making arguments like this.  Applying the Florida Rules of Civil Procedure and rigidly enforcing them … this approach must be at the heart of any good foreclosure defense.

Mark Stopa

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Elizabeth Warren, Keeping Hope Alive

I don’t like politicizing on this blog.  No matter what I say, half of you reading this will disagree.  Today is a particularly sensitive time in that regard, as half of you are disappointed.  Heck, many of you dislike both parties, feeling like neither side is doing enough to help our housing crisis or middle class America.  I know from our chats on Facebook that many of you harbored little hope regardless of who won.

All of that said, take a look at Elizabeth Warren, Senator-elect from Massachusetts.  Put aside her Democratic party affiliation and listen to the message.  I have, and I’m not even a Democrat.  In her case, the message transcends party affiliations.  She’s been battling Wall Street for years.  She genuinely seems to care (about things besides her own enrichment).  Listen to her.  Read about her.  Google her.  Whether you’re Democrat, Republican, or independent, I’m confident you’ll like the message.  Heck, if you’re reading this blog, you probably believe in the very things she’s been saying/doing for several years.  I’m not talking about social issues like abortion, that’s not the point here.  I’m talking about battling the corruption on Wall Street.

Over the past few years, I’ve often felt like nobody in our government is doing anything to fight Wall Street.  I feel like I fight the big banks on a small scale, in Florida, but on a bigger, national scale, real change sometimes feels hopeless.  Elizabeth Warren helps keep my hope alive in that regard.  Let’s hope we see more candidates like her in future elections – from both Democrats and Republicans.

Mark Stopa

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BOA Offering Unsolicited Loan Mods with Principal Reductions

The past two business days, I’ve received a handful of unsolicited offers from Bank of America for loan modifications.  I’ve received similar letters in the past, but these are different.  These include principal reductions, in some cases significant principal reductions.

In the grand scheme of things, these offers remain few and far between.  However, if you receive such an offer, make sure you assess it carefully.  Getting a significant principal reduction might be the solution necessary to keep you in your home on a permanent basis.

Mark Stopa

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