Archive for May 17th, 2013

5DCA Issues Order to Show Cause to KEL Attorneys

I’m sad as I write this.  Today, Florida’s Fifth District Court of Appeal issued a written opinion in a foreclosure case that affirmed a Final Judgment of Foreclosure.  I’m sad because it didn’t have to be this way.  It shouldn’t have been this way.

Here are the unfortunate facts …

A bank filed suit for mortgage foreclosure against a homeowner, who retained KEL Attorneys as counsel.  The bank set a hearing on its motion for summary judgment, as often happens in these cases.  When KEL Attorneys did not attend the hearing, the court entered a Final Judgment of Foreclosure without opposition.  KEL moved to vacate that judgment, asserting it acted with “excusable neglect” by not attending the hearing, having inadvertently failed to calendar it.  The court denied that motion, so KEL appealed.

At that point, KEL had a pretty good chance of winning on appeal in the Fifth District.  After all, there are many cases which hold it is excusable neglect to not attend a hearing where the hearing was inadvertently not calendared.  To the surprise and dismay of the Fifth District, however, KEL did not frame the issue on appeal in this manner in its Initial Brief.  Instead, KEL asserted that it received no notice of the hearing.  In its Answer Brief, the bank showed that was plainly not true.  By its own admission, KEL had received notice of the hearing – it just failed to calendar it and failed to attend.  KEL tried to fix the problem, and set forth the issue correctly in its Reply Brief, but by that point it was too late.  When an issue is not raised in the Initial Brief in an appeal, it is waived.

On these facts, the Fifth District issued this opinion, which included an Order to Show Cause why KEL Attorneys should not be sanctioned.

The saddest part, meanwhile, is the innocent homeowner who lost this appeal – the foreclosure judgment on her home being affirmed – to no fault of her own.

I’m not going to disparage KEL Attorneys.  That’s not ethical, and it’s not my place.  That said, this opinion is a great illustration of how a homeowner’s choice of counsel can make a huge difference.  Choose wisely, folks.

Mark Stopa

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