Archive for October 2nd, 2013

Standing at Inception … to the Florida Supreme Court?

On September 25, 2013, Florida’s Second District Court of Appeal issued a written opinion in Focht v. Wells Fargo Bank, N.A., where it reversed a Final Judgment of Foreclosure based on the plaintiff’s failure to introduce any evidence that it had standing when it filed the lawsuit.

The bank’s obligation to prove its standing to foreclose at the time it filed suit (as opposed to at the time of trial or the summary judgment hearing) is well-established in Florida law.  It’s a concept I’ve discussed many times on this blog, including here, here, here and here.  As such, the Focht decision might seem uneventful, as it merely upheld established precedent – one of many cases to do so.

However, the Second District didn’t stop there.  Instead of simply following the prior case law and ruling the homeowner prevailed in the appeal, the Second District went on to rule, in layman’s terms, that it didn’t think the homeowner should prevail on that type of fact pattern any more and that the Florida Supreme Court should change the law regarding “standing at inception.”  In legal terms, the Second District certified the following question of “great public importance” to the Florida Supreme Court:

Can a plaintiff in a foreclosure action cure the inability to prove standing at the inception of suit by proof that the plaintiff has since acquired standing?

The concurring opinion is particularly alarming.  I’ll let you read it for yourself, but one judge essentially explains why he believes the law should be changed on this issue.

My reaction?  Wow.

I’m very surprised to see the Second District – which has always, in my view, been fair and even-handed in the foreclosure context – propose to change established law for the sake of expediency.  I’m particularly surprised to see it do so without mentioning stare decisis, any case law about the circumstances in which the law is changed for expediency’s sake, Fla. Stat. 702.015, or Rule 1.110(b).  As a result, though I was not counsel up until this point, I’m pleased to file this Motion for Rehearing in the Second District.

I’m optimistic the Second District will reconsider the certification of this question to the Florida Supreme Court and will retract that portion of its ruling from the written opinion.  Otherwise, I look forward to fighting this issue, on behalf of Ms. Focht and, frankly, all Florida homeowners, in the Florida Supreme Court.

Mark Stopa

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