Archive for June 15th, 2014

What Does a Winning Foreclosure Appeal Look Like?

I get a lot of calls from homeowners wanting help on appeals, and unfortunately I have to turn many of them away.  You see, going to the appellate courts is expensive (even after I throw in the standard Stopa discount for Florida consumers), it’s very hard to win, and many homeowners fail at the procedural requirements that are necessary to prevail on appeal (e.g. timely appeal, timely motion for rehearing, transcript of the trial proceedings).

One homeowner’s fact pattern, however, grabbed my attention.  This homeowner proved at trial that the original promissory note was sitting in a court file in a totally different lawsuit – filed by a totally different plaintiff – at the time suit was filed against her.  As a result, it seemed clear to me the bank lacked standing at the inception of the case, so I took the appeal and filed this Initial Brief.  The bank responded with an Answer Brief that surprised me (though after so many years of doing this, I guess I shouldn’t be surprised).  The bank didn’t even try to counter my argument that it was not the “holder” when it filed suit, but how could it?  The note was in a different court file with a different plaintiff.  Rather, the bank argued it had standing via an Assignment of Mortgage.  As I explained in this Reply Brief, however, that assignment could not convey standing because the assignor had already assigned the Note and Mortgage to a totally different entity two years prior, and the assignment only transferred the Mortgage, not the Note.

I do a lot of appellate writing, and I’m constantly trying to help consumers and prospective clients understand what it takes to win on appeal.  The Fourth District hasn’t ruled yet (so perhaps I’m counting my eggs before they hatch), but this is my explanation of what it takes.  The original Note in this case was sitting in a totally different court file, filed by a totally different plaintiff, at the time my client was sued for foreclosure, and when the bank tried to change course and rely on an assignment, I showed that assignment was insufficient to transfer the Note and Mortgage to that Plaintiff for two different, clear-cut reasons.

I guess what I’m saying is this … don’t give up on your appeals, folks.  Just know that winning requires a transcript of the trial proceedings, a timely notice of appeal, and a fact pattern as compelling as this one.

Mark Stopa

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