Archive for June 30th, 2013

Paragraph 22 … Briefing an Appeal in the 2DCA

Those in the foreclosure industry know I’ve been able to get a lot of foreclosure cases dismissed where the bank did not comply with the conditions precedent in paragraph 22.  Not all, of course, but a lot.

For a long time, the banks have been unwilling, unable, or just plain scared to appeal any of the cases where I prevailed.  Recently, however, they appealed one.

Here is the Order Granting Summary Judgment entered by a circuit judge in Tampa.

Here is the bank’s Initial Brief

Here is my Answer Brief.

I’m not going to elaborate too much, as the Answer Brief says it all.  48 pages.  50(+) legal citations.  Read it.  Understand the arguments/issues.  That said, here are a few thoughts:

The more I dug into this project, the more I realized … Substantial compliance is a joke.  It’s not defined anywhere in Florida law, and the cases make it clear “substantial compliance” is really no different than “compliance.”

Banks want courts to believe there’s a difference so they can win foreclosure cases easier.  But when it comes time to writing a brief and defining “substantial compliance” or citing cases that explain what it means, they can’t.  Tellingly, the bank doesn’t cite a single case which articulates any difference between “compliance” and “substantial compliance.”  And they can’t cite a single appellate decision in Florida which employs a “substantial compliance” standard in the paragraph 22 context.

I’m very confident the Second District won’t employ some nebulous concept of “that’s close enough.”  That’s what the banks want judges to do – look at a defective paragraph 22 letter and conclude “yeah, that’s defective, but it’s close enough.”  There’s no case law that employs such a standard.  None.  That’s a big part of what my Answer Brief tries to accomplish – beat the bank over the head with the concept that there’s no legal authority for its position.

As I’ve explained in recent blogs, the Second District has already made it clear that “compliance” is the standard when adjudicating an acceleration letter under paragraph 22 of a mortgage, not substantial compliance.  After this appeal, I’m confident that will be even more clear.

Mark Stopa

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