Archive for August, 2013
Posted on August 15th, 2013 by Mark Stopa
I just received an inquiry from a Florida homeowner about helping him get a loan modification after the bank assured him he’d receive one if he consented to a Final Judgment of Foreclosure. This is something I observe all too frequently in court, too – pro se homeowners being led to believe they can get a modification once a foreclosure judgment is entered.
Please don’t make this mistake, folks.
If a bank wants to give you a mortgage modification, it will do so WITHOUT foreclosing on you! There’s no reason to get a judgment first! I don’t want to sound critical of anyone, but just think about it. If a bank wants to give you a modification, why would it ask the Court to set a sale date on your home? Obviously, that’s not someone who intends to work out an agreement with you.
As a result, if any bank or attorney tries to induce you to “settle” by you allowing a Final Judgment of Foreclosure to be entered (then working on a modification after that), REFUSE! Object! Get help right away!
Or if a judge tells you that you should allow a judgment to be entered and can try to work out a modification afterwards, OBJECT! Say no! Tell the court you know you’re never going to get a modification if a Final Judgment is signed! But be prepared – you better be ready to give the judge a darned good reason not to enter the Final Judgment at that hearing, because hoping to get a modification isn’t good enough.
This might come across as a shock to many of you, but think about it from the bank’s perspective. (That might be hard, to imagine yourself being so crooked, greedy, and fraudulent, but go with me here.) Once a Final Judgment of Foreclosure is entered, the bank has absolutely no incentive to give you a modification. It’s already won the lawsuit. A foreclosure sale has already been scheduled. Why would a bank work out a deal with you in the hopes of getting monthly payments when it can set the sale and get paid in full (either by a third-party purchaser, the government, or an insurance company)? There’s no answer to that question – and that’s why you can’t let a judgment be entered in the hopes of getting a modification afterwards.
The banks aren’t honorable. They’re not honest. They’re duping homeowners throughout Florida, each and every day, into giving up their rights so they can foreclose quicker. Don’t make this mistake. Fight for your rights – before it’s too late.
Mark Stopa
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Posted on August 10th, 2013 by Mark Stopa
Yesterday’s ruling in Correa v. U.S. Bank was fantastic on many levels. One of them, though, was quite subtle, so I want to make a point of highlighting it.
Do you notice, in the opinion, how the court made a point of saying that Ms. Correa had filed bankruptcy? What’s interesting here is that this had ZERO impact on the court’s decision.
You see, Florida homeowners can file bankruptcy, “surrender” the house, and still defend their foreclosure lawsuit. Banks love to argue otherwise, but so long as the homeowner remains on title to the property through the bankruptcy process, nothing stops that homeowner from continuing to defend the foreclosure lawsuit. That means, as Ms. Correa did, that you can, yes, win the suit – even after filing bankruptcy.
So how do you go about making sure you stay on title even upon filing bankruptcy? It’s simple, actually. If you “surrender” the house, and don’t “exempt” it, and the bankruptcy trustee gives some indication that he/she intends to sell title to the property, you amend your bankruptcy filings to keep the house through the bankruptcy. This is totally legal and a perfectly legitimate way to avail oneself of bankruptcy laws, enjoy the benefits of bankruptcy, and still defend your foreclosure lawsuit.
Mark Stopa
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Posted on August 9th, 2013 by Mark Stopa
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
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