Archive for December 21st, 2012

Merry Christmas, Floridians

I really want to wish all homeowners in Florida, and across the USA, a Merry Christmas.  The best way to do that, though, isn’t with words … it’s to post some Orders.  So here you go.

Order Granting Summary Judgment

Order Granting Summary Judgment

Order Granting Summary Judgment

Order Granting Summary Judgment

In each of these cases (all decided within the past few days), the bank argued that it complied with the conditions precedent to foreclosure set forth in paragraph 22 of the subject mortgage by sending the homeowner a letter.  Each time, however, I argued that the content of the letter was insufficient.  Each time, the court agreed, dismissing the case.

As I explained recently in this blog, it is insufficient for a foreclosure plaintiff to show it sent the letter required by paragraph 22 of a mortgage – the letter actually has to say what paragraph 22 requires it to say.  Where the letter doesn’t say the required terms, there is an excellent argument that the plaintiff did not comply with conditions precedent to the filing of the lawsuit, requiring that the case be dismissed.

The reasons the letters are inadequate can run the gamut.  In two of the Orders I posted, the letter was found to be inadequate because it advised the homeowner that he/she could “bring a court action” instead of specifying that the bank would pursue “foreclosure by judicial proceeding.”  This is becoming a common argument in foreclosure cases, and most judges agree – there is a big difference between telling a homeowner “you can sue us if you don’t want to be foreclosed” instead of “we will sue you to foreclose.”

But that’s hardly the only problem with these letters.  In one Order I posted, the letter said the homeowner “may” have the right to reinstate after acceleration.  In another, the letter did not specify what the homeowner had to do to cure the default, telling the homeowner it had to pay charges and expenses without identifying the amount of those monies.  In both instances, the judge found the letter insufficient and dismissed the case.

Let this be another illustration is that there are almost always valid, legitimate ways to defend foreclosure cases.

Merry Christmas, Floridians.  May you all enjoy the day with family and friends – in your homes.

Mark Stopa

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Knowing the Way to the Second DCA

About a month ago, I wrote this blog, explaining why I filed a Petition for Writ of Prohibition in Florida’s Second District Court of Appeal (after a local, circuit judge denied my motion to dismiss for lack of prosecution).  My point was to highlight the importance of making jurisdictional allegations in foreclosure cases and, where necessary, pursuing appellate relief.  Well, shortly after filing the Petition, the Second District ruled, and I lost.  Or did I?

In its Order, the Second District ruled that my petition was “dismissed without prejudice.”  In that sense, it certainly seems, at first blush, like I lost.  After all, the Second District did not grant any relief, and dismissed my petition.

However, anyone who regularly practices in the appellate courts knows it was more complicated than that.  The Second District could have dismissed ‘with prejudice,” which means the Court considered the arguments in the petition and rejected them.  Instead, the court dismissed “without prejudice,” meaning the Second District was allowing me to bring the arguments at the end of the case.

Meanwhile, I filed this Motion for Rehearing or Stay Pending Appeal in the lower court, explaining why the Motion to Dismiss for Lack of Prosecution should have been granted.  At the hearing on that motion, my opponent argued that I had already gone to the appellate court, and lost, so the lower court should rule the same way and deny the motion.  He was pretty confident in that position, and it probably seemed like a good argument.  “Judge, you ruled in the bank’s favor the first time on this motion, and he lost in the appellate court, so you should rule the same way now.”

It sounds right.  But it’s not.  The bank’s lawyer obviously didn’t realize that an Order from the Second District which dismisses a petition for writ of prohibition “without prejudice,” does not mean that I lost on the merits, it means the Second District thought I should bring the appeal at the end of the case.  At the hearing, it was certainly fun to be able to make that distinction.  In fact, the way I see it, the Second District’s dismissal without prejudice showed it may have liked my argument on the merits, because it could have dismissed ”with prejudice,” and prevented an appeal at the end of the case, but it chose not to do so.

Anyway, upon making these arguments on rehearing, guess what?  I won.  Motion granted, case dismissed.

I’ll never know for sure why I won the argument the second time where it didn’t win the first.  After all, the judge was the same, and the argument was the same, so why the different rulings?  Maybe I presented the argument better the second time.  Maybe I argued more coherently or persuasively.  Or perhaps the judge realized that I knew what I was talking about when it comes to appellate matters and that not following the law risked reversal on appeal.  Again, I’ll never know for sure.  However, one theme I’ve often seen/felt/experienced is that I get better results before judges who realize I know my way to the Second DCA.  Maybe that’s just my perception, and maybe it’s just a coincidence, but it sure feels like the threat of an appeal (“threat” isn’t the right word, but it’s the only one that comes to mind) makes a difference.

For those looking for case cites on dismissals for lack of prosecution, here is the Order of Dismissal I’m submitting to the Court for entry.

Mark Stopa

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