Archive for May 22nd, 2013

What is a Judge’s Job?

I had a fascinating hearing recently, one that left me asking “What is a judge’s job?”  First, a little background …

I was not counsel for this homeowner at trial, but she had a great defense.  She argued the bank lacked standing when it filed the lawsuit, as it did not have possession of the original Note at the inception of the case.  See McLean v. J.P. Morgan Chase Bank, N.A., 79 So. 3d 170 (Fla. 4th DCA 2012).  Lots of homeowners make that argument, but the facts here were particularly good.  After all, the argument in this case did not turn on whether the bank’s witness was credible or what the business records may have shown.  Rather, it was undisputed that the original note was sitting in a court file in a totally different case filed by a totally different plaintiff for six months after this bank filed its lawsuit.

Follow the timeline.  Bank A filed suit in 2008, the case was dismissed, and the original Note was returned to that plaintiff on August 31, 2010.  Bank B filed suit in March of 2010.  Do you think Bank B had possession of the original Note in March of 2010 when the Note was sitting in the court file?  I sure don’t.  It’s necessarily impossible to be the “holder” when you lack possession of the original Note.  See Fla. Stat. 671.201(21) (defining “holder” as one in possession of an original, endorsed note).

In my opinion, this argument should have prompted a dismissal of the case, but the judge entered a Final Judgment for the bank.  I entered the case and asked for a stay pending appeal.  I thought that motion was well-taken.  After all, the judge herself had said (at trial) that my client’s position was a good argument, so why should a foreclosure sale take place before she could pursue an appeal?

Unfortunately, the judge denied the stay and set the first available sale date.

I was surprised, so I pushed the judge to explain her ruling.  The explanation surprised me.  Here’s what the transcript reflects (starting on page 16):

Mr. Stopa:  Judge, you acknowledged yourself, on multiple occasions, on the record, that, you know — Initially, you had multiple times where you said you were ruling for the defendant, and then you said if you didn’t, it would be reversed.  I’m not arguing with you, but my point is that I think there are legitimate grounds to go to the Appellate Court, and before my client is divested of the property and a third party purchaser tries to buy it and, potentially, take possession, ultimately to potentially be removed, then a stay should be entered so that we can pursue our right on an appeal.  We’d be happy to have a condition in the stay being that my client will continue to maintain the property, as she has.  There won’t be any harm to the bank, if we were to lose the appeal.  It simply will have the foreclosure sale rescheduled, once the appeal is over.  The collateral is not going anywhere.  So I think a stay is a fair result here, under the circumstances, so that we can pursue an appeal on these issues.

The Court:  You’re welcome to do that.

Mr. Stopa:  Can I submit you an Order that grants a stay?

The Court:  No.  Your stay is denied.  …

Mr. Stopa:  On the issue of stay, can I ask for an explanation, or what have you, because, you know –

The Court:  My job is to move cases.

Mr. Stopa:  I’m sorry?

The Court:  My job is to move cases and that’s what I’m doing.

Mr. Stopa: Okay, and you moved the case by entering a judgment.  A stay doesn’t stop you from moving the case, because the judgment will have been entered.  It won’t appear as a pending case on the docket, but it allows us to pursue an appeal.

The Court:  May 29.

Mr. Stopa:  Why are we having a sale date scheduled so quickly?  Can’t we get –

The Court:  Because if you practiced in front of me in this division, you will have known that 35 days is the most I give, unless there’s extenuating circumstances.

Mr. Stopa:  I think the extenuating circumstances here are that we have the issue of the note in the other file, which I know you didn’t agree with, ultimately, and the amount issue.  I mean, Judge, those are two very legitimate things to be appealing about.  So I think — Think about it from a third party perspective.  Do we really want a third party purchaser to buy this house, when we have an appeal pending, then they would be divested, when they have done nothing wrong?  That’s the point of a stay, is it prevents harm to third parties, as well as these parties.

The Court:  Okay.  I’ve ruled. …

I realize the judge wears the robe, and it’s not my place to criticize.  That said, I’m bothered by the judge’s statement that her “job is to move cases.”  Listening to that really made me ponder …

What is a judge’s job?

Here’s how Wikipedia defines a judge.  And with respect to this judge, I note the definition does not include “moving cases.”

A judge is an official who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open court. The judge hears all the witnesses and any other evidence presented by the parties of the case, assesses the credibility and arguments of the parties, and then issues a ruling on the matter at hand based on his or her interpretation of the law and his or her own personal judgment.

These are tough times for our judiciary.  There’s a backlog of cases, and all judges face pressure from many angles to eliminate the backlog.  I sincerely hope, however, that all judges don’t allow these pressures to distort their perspective on what a judge’s “job” is.

Mark Stopa

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Is a Foreclosure Plaintiff Likely to Prevail Merely by Filing Suit? NO! Second District Changes its Ruling!

On March 13, 2013, I posted this blog, where I voiced my concern about portions of the Second District’s ruling in Deutsche Bank v. Prevratil, a case in which I was not counsel that the Second District ruled upon a few days earlier.  That was the case, you may recall, where the Second District ruled that an entity other than the Plaintiff could verify a mortgage foreclosure complaint under Rule 1.110(b) in some circumstances.  My concerns with the opinion were twofold: (1) the court’s statement that a foreclosure plaintiff was “likely” to prevail merely by filing suit, and (2) the lack of discussion about Fla. Stat. 709.2105, which requires a power of attorney to be a natural person or a financial institution with trust powers.

This is the opinion the Second District issued at the time, and this was the Motion for Leave to File Amicus and Motion for Rehearing that I filed in the Second District in response, explaining my two concerns.

Today, the Second District quashed its initial decision in Prevratil and issued this revised opinion.  Wow.  We won!  On a case I wasn’t even counsel!

Although the opinion makes no mention of me or my amicus, the Second District addressed both of the issues I raised in my motion, changing its initial ruling!

The first change is a fantastic one.  Now, instead of saying a foreclosure plaintiff is “likely” to prevail merely by filing suit, the Prevratil decision says a foreclosure plaintiff “could” prevail.  Beautiful.  That’s exactly right.  Foreclosure plaintiffs aren’t “likely” to prevail by filing suit – they “could” prevail.  Major kudos to the Second District for clarifying that point on rehearing.  For reasons I will explain in a future blog, that distinction might make an enormous difference in how foreclosure cases are litigated throughout Florida.  Yes, that was a ground-breaking change, even if nobody realizes why just yet.

The second change is more subtle. In its revised opinion, the Second District provides four footnotes which explain why the court relied upon versions of the statutes in effect at the time.  This was my second concern in the motion, to wonder why the court did not mention Fla. Stat. 709.2105, which requires a power of attorney to be a natural person or a financial institution with trust powers, and to invite the Second District to explain why the statute did not apply.  These footnotes answer that question.  The POA statutes were revised in October of 2011.  The Prevratil complaint was filed before those statutes came into effect, so the court relied on the prior version of the statutes.  However, for any lawsuits filed after October of 2011, the requirements of Fla. Stat. 709.2015 would be in effect.  That means, to be a valid power of attorney and sign a verification under Rule 1.110(b) on any complaints filed after October of 2011, the person/company verifying must be a natural person or a financial institution with trust powers.

This was a fight that, candidly, I wasn’t sure I could win.  Suffice it to say I’m elated to help change the law on these two issues, even if my motion wasn’t mentioned in the opinion.


Mark Stopa

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