Archive for July 23rd, 2014

Making the Right Legal Arguments in the Right Way, at the Right Time

Do you know how and when to make legal arguments in such a way that those arguments are preserved for appeal and not deemed waived?  It’s not nearly as easy as you might think.

Take a look at this Initial Brief.  This appeal emanated from an Order granting summary judgment in one of my cases.  I won, and the foreclosure case was dismissed.  The bank appealed, raising, essentially, two arguments.  First, the bank contends summary judgment was improper because the hearing took place with less than 20 days’ notice, in violation of Fla.R.Civ.P. 1.510.  Second, it asserts summary judgment should not have been granted because the basis for the judge’s ruling, a defective paragraph 22 letter, was not specified in the written motion, another violation of Fla.R.Civ.P. 1.510.

In many ways, the bank is probably right.  I certainly agree the two legal propositions it makes are an accurate representation of the law.  Summary judgment motions can’t be heard without 20 days’ notice, and the motion must specifically set forth the grounds therefor.  See Fla.R.Civ.P. 1.510.  Nonetheless, I’m confident I’m going to win this appeal because the bank waived these arguments and did not preserve them.  In other words, the bank can’t win an appeal based on these alleged procedural irregularities when it did not assert those arguments at the right time, in the right way.

Here, check out this Answer Brief.  Do you see all of the procedural traps?  All of the nuanced ways a litigant can lose a case by not presenting an argument at the right time or in the right way?  Bear in mind – this bank had lawyers, and, in my view, they still did it wrong.  Do you really think you could avoid these pitfalls on your own?

Finding a competent counsel to help in cases like this – as opposed to handling it yourself – is really no different than hiring a doctor to perform surgery on your broken arm.  You’d never even think of operating on yourself.  Make sure you have that same mentality with your foreclosure case.  And if you don’t live near me (or in Florida at all), there are competent counsel out there – you just have to find them.



Mark Stopa

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