Archive for November 10th, 2013

The Aftermath of Focht

When Florida’ Second District Court of Appeal issued a written opinion in Focht v. Wells Fargo Bank, N.A. on September 25, 2013, Florida homeowners, consumer advocates, and defense attorneys were concerned.  After all, there was potential for the Florida Supreme Court to change the law and take away one of the biggest defenses homeowners can raise in a foreclosure case, the bank’s standing at the inception of the suit.

Fortunately, that issue is now dead.  Wells Fargo decided not to appeal to the Florida Supreme Court, and even though the Second District certified the issue, the Florida Supreme Court lacks jurisdiction to rule when an appeal is not filed. mI’d like to think Wells Fargo realized it had no chance of prevailing after reading my motion for rehearing, but whatever the reason, there is no imminent risk of the law being changed on this issue.  “Standing at inception” remains a requirement in all foreclosure cases in Florida, and that’s great news for homeowners, obviously.

Meanwhile, though, some bank lawyers and even some judges are pointing to the Focht ruling as proof of a changing of the guard in the foreclosure arena.  They see Focht as proof that judges are tiring of defense arguments and should just rule in favor of banks.  In support, they point not only to the certified question and, in particular, Judge Altenbernd’s concurring opinion.

I suppose I can understand this logic.  After all, three appellate court judges openly campaigned that the Florida Supreme Court change the law to prevent homeowners from raising “standing at inception” as a defense in foreclosure cases.  Judge Altenbernd is so troubled at the equities of foreclosure defense that he openly lamented something that is totally lawful, homeowners collecting rents while a foreclosure suit is pending.

Hence, it might seem easy to argue Focht as proof that the tide is turning.  It might be easy, but it’s wrong.   

Focht doesn’t help banks.  Focht helps homeowners!  Just look at who won the appeal – not Wells Fargo, but Focht!  Yes, the judges didn’t want to have to rule in Focht’s favor.  Yes, Judge Altenbernd finds it inequitable.  The point, though, is that despite their personal feelings on the matter, these judges still ruled in favor of the homeowner!

This is the essence of foreclosure defense.  Frankly, I don’t care if judges want to rule in my favor.  I don’t care about their personal feelings on the matter.  All I ask, as defense counsel, is that they follow the law.  In that sense, Focht is the poster-child for foreclosure defense.  Quite simply:

Judges’ personal feelings on foreclosures are irrelevant.  All that matters is that they continue to follow the law.

So if any bank lawyer tries to say Focht somehow proves a trial court judge should rule in favor of a homeowner, that it proves the tide is turning, make sure you argue otherwise.  Focht doesn’t help banks – it helps us.

Mark Stopa

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