Archive for August 9th, 2013

Victory on Appeal – Foreclosure Lawsuit Dismissed!!

Florida’s Second District Court of Appeal issued a this written opinion today that I can only characterize as the biggest win of my career, one that will set precedent in foreclosure lawsuits throughout Florida for years to come.  But enough about me – let’s explain what happened and how homeowners can learn from today’s ruling.

In 2007, U.S. Bank filed a foreclosure lawsuit against Tamara Correa in Hillsborough County.  Ms. Correa did not retain counsel, as she represented herself throughout the course of the lawsuit.  Despite little opposition from a pro se homeowner, the bank let the case languish for four years.   Perhaps unsurprisingly, she lost at trial, as the Court entered a Final Judgment of Foreclosure.

At that point, Ms. Correa did a couple of things correctly – important things.  First, she contacted me immediately after the trial was over – soon enough for me to file a Notice of Appeal.  This is a mistake made by many homeowners – they wait too long to seek help, preventing them from obtaining appellate relief they otherwise may have been entitled to receive.  Second, Ms. Correa brought a court reporter to the trial, and gave me a copy of the transcript.

It’s never advisable to handle a foreclosure trial on your own.  However, if you want to have any chance of appealing, you must have the transcript.  After all, if you can’t show the appellate court what happened at trial, you can’t possibly show the appellate court that the trial judge ruled incorrectly.

With the transcript in hand, I reviewed what happened at trial and came to the conclusion Ms. Correa had a meritorious appeal.  I saw two winner issues: (i) the bank did not prove the terms of the lost Note, as required by Fla. Stat. 673.3091, and (ii) the court did not give the required 30-days’ notice of trial.  So I drafted this Initial Brief, laying out those arguments.

I spent a large portion of the brief asking the Second District not only to reverse, but to remand with instructions to dismiss the case.  In other words, I didn’t think the bank should get a second trial, a second chance to prove its case.  Rather, I argued that because the case languished for years against a pro se homeowner, had numerous continuances, and went to trial only after prodding from the judge, the bank shouldn’t get a second bite at the apple.

Today, the Second District agreed with these arguments.  The opinion is important in a few key respects.

First, this case lays out the requirements for a bank to prove a lost note claim in a foreclosure case.  Evidence at trial is required.

Second, the case provides important precedent for the argument that when a bank does not present sufficient evidence at trial, a dismissal should result.  No new trial.  No second bite at the apple.  When the bank can’t prove its case at trial, it’s foreclosure case dismissed, homeowner prevails.

Third, and perhaps most significantly, the opinion lends hope to all homeowners.  Defenses are available in foreclosure cases, even at trial and even on appeal.

Read the opinion.  In foreclosure-world, they don’t get any better than this.

Mark Stopa

Posted in Main | No Comments »