Archive for January 7th, 2014

Different Rules in Foreclosure Cases?

After I got a foreclosure case dismissed, the bank appealed.  Then a strange thing happened.  The bank never paid the filing fee.  Of course, except in limited situations which don’t apply here, no litigant can pursue an appeal without paying the filing fee.  So what happened?

First, Florida’s Second District Court of Appeal issued an Order directing that the filing fee be paid within 20 days or risk dismissal.  That was reasonable.  Cases should be decided on the merits, and if failure to pay the fee was an oversight, the bank (or, for that matter, any litigant) should be given a chance to fix it.

At the end of that 20 day period, the bank did not pay the filing fee.  Instead, it filed a motion for extension of time.

Huh?  A behemoth financial institution needs more time to pay a $300 filing fee?

Over a month later, and nearly two months after the 2DCA warned the bank to pay the fee or risk dismissal, the bank had still not paid the filing fee.  As such, the Second District dismissed the appeal.

The bank never sought rehearing of that ruling.  Instead, two (more) months later, the bank asked that the appeal be reinstated when it finally paid the filing fee.  All the bank said to support its position was that failure to pay the fee was due to some unspecified “clerical error.”

A behemoth financial institution takes four months to pay a filing fee, despite receipt of two Orders pertaining to the issue … and that’s a clerical error?

Over my objection, the Second District reinstated the appeal.  No explanation was given, and the Order reinstating the appeal did not identify any judges who joined in that ruling.

Disappointed, I filed this Motion for Clarification, Reconsideration, and Written Opinion.  I explained how there shouldn’t be two sets of rules, one for foreclosure cases and one for every other type of case.  I lamented the absence of any legal authority for reinstating a dismissed appeal two months after the fact.  I asked the Second District to identify the procedural mechanism which authorized the appeal to be reinstated.  I asked that the judges who joined in that ruling identify themselves.  I argued defendants in foreclosure cases should not be made to feel the rules are different for them.

Today, I received an Order directing the bank to respond to that motion.  What an interesting and unique opportunity for the Second District to comment on the banking industry’s failure to perform the most basic tasks inherent in prosecuting foreclosure cases – and to let everyone know the rules aren’t different for homeowners in foreclosure.

Mark Stopa

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