Posted on October 16th, 2010 by Mark Stopa
I received a call today from a prospective client who read this article on Yahoo! Finance. He lost his home to foreclosure in 2008 even though BofA admitted, in writing, both before the foreclosure and after, that the foreclosure was wrongful and that his home would be returned (which never happened). Additionally, he was never served with a Summons and Complaint, so service upon him was improper. Unfortunately, he didn’t know how to exercise his rights until he read the article.
Anyway, this got me thinking … there must be thousands of Floridians who have been foreclosed upon wrongfully but don’t know what to do about it. If you think you’re in that boat, please read on.
First off, a caveat. The circumstances in which a foreclosure judgment can be vacated in Florida are limited. If you defended your case (either with an attorney or on your own) and lost, it’s quite possible there is nothing that Stopa Law Firm – or anyone else – can do anything about it. That said, I’m interested in speaking with you, even if you’ve already lost your home to foreclosure, if you fit one or more of the following criteria:
1) You lost your home to foreclosure but were never served by a process server or sheriff and never defended the case (either on your own or with an attorney). I’m particularly interested in homeowners who were served by publication.
2) Your bank assured you that your foreclosure case was “on hold” – or there would be no foreclosure case at all – (perhaps because you were in the middle of a loan modification or short sale agreement), yet the bank obtained a foreclosure anyway. If you have documentation confirming the case was “on hold,” that’s even better (and though that sounds impossible to believe, I have cases fitting that description).
3) You never received copies of any court filings in your foreclosure case, particularly the notice of the hearing at which a Final Judgment of Foreclosure was entered and/or the Final Judgment itself.
4) The affidavit filed by the bank in support of summary judgment was signed by one of the “robo-signers” who has been in the news in recent weeks, e.g. Jeffrey Stephan.
It’s important to me that I not get anyone’s hopes up unjustifiably. Hence, I need to say – even if you fit these criteria, that does not necessarily mean you have a case. In other words, I can’t possibly give legal advice without knowing the specifics of your case. That said, if you meet one or more of the above criteria, please feel free to give us a call for a free consultation. 888-450-1549. You may have a claim for wrongful foreclosure and may even be able to inhabit – and own – your home again.
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Posted on October 16th, 2010 by Mark Stopa
It’s a bit awkward to openly criticize judges’ handling of foreclosure cases, especially since I appear before these judges on a regular basis. That said, unless someone is willing to tell these judges, respectfully but firmly, their decisions are wrong (with an intelligent explanation why), meaningful change in foreclosure cases is just a pipe dream.
For instance, I’ve been quite perturbed by this recent quote from W. Douglas Baird, a judge in Clearwater:
“We’re processing thousands of cases where no one is really contesting them, and in those instances, something like that just would not be brought to our attention. It’s not a situation where the courts have the ability to go through every document that’s filed and challenge and question those documents.”
I’ve been before you enough, Judge, that you know I respect you. That said, on this issue, you are mistaken. Even in a case that is uncontested, it is the judge’s obligation to ensure that the Plaintiff met its burden of proof. To illustrate, let’s remove ourselves from the foreclosure arena for a moment. Suppose you’re presiding over a trial in a negligence action. Suppose the Defendant, for whatever reason, does not attend trial, via counsel or otherwise, and puts up no opposition. Are you going to sign a Final Judgment without making the Plaintiff put on evidence? Of course not (or, at least I’d hope not). The Plaintiff’s obligation to prove its case is not eliminated simply because the Defendant is not present. Now suppose the Plaintiff puts on evidence of duty and breach but no evidence of damages, then rests its case. Are you going to sign a Final Judgment for $100,000 in damages merely because Plaintiff’s counsel asks for it in closing? Again, of course not. If there is no evidence of $100,000 in damages, you can’t award that relief – even if the relief sought is uncontested. Respectfully, these principles are not reasonably in dispute.
Now let’s evaluate this in the foreclosure context. Suppose you’re at a hearing on a Motion for Summary Judgment. The Defendant has been defaulted, did not try to defend the case, and is not present at the hearing. Judge, you’d have the public believe you essentially have no obligation to review the file before signing a Final Judgment of Foreclosure. I’m sorry, Judge, but you’re mistaken. It’s still your obligation, even in an uncontested case, to make sure the Plaintiff has met its burden of proof. The volume of cases before you does not change the Plaintiff’s burden.
Now – does anyone expect you to review the file as closely as you would if the case is contested? Of course not. But it’s still your job, as presiding judge, to ensure the Plaintiff has done what needs to be done for summary judgment to be entered.
In my view, the most obvious shortcoming in foreclosure cases – even those that are uncontested – is with respect to the affidavits the foreclosure mills use in support of summary judgment. Fla.R.Civ.P. 1.510 clearly provides:
Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.
I don’t know that I have ever seen a plaintiff comply with this rule in a single foreclosure case, yet judges such as yourself repeatedly enter summary judgment anyway. Why? The rule is clear – when the affiant references documents in an affidavit, those papers must be attached. In foreclosure cases, the affiant always references documents (because the affiant never has personal knowledge of the amounts owed and has to rely on a life of loan history), yet these documents are never attached. This is a fatal flaw under the plain language of the rule. In fact, there are many appellate court decisions that reverse summary judgment on these facts. (If you disagree, Judge, then please talk to your colleague, Judge Rondolino. He routinely cites these cases at hearings.)
Judge, I don’t expect you to pore over every page in the court file before entering summary judgment in an uncontested case. But it takes two seconds to look at the Plaintiff’s Affidavit in Support of Summary Judgment and see if any documents are attached. Heck, that’s something an intern or judicial assistant could do. If no documents are attached, and the affidavit references such documents (as they invariably all do), then summary judgment should not be entered, even in an uncontested case.
Despite all of this, you told the media “[w]e’re processing thousands of cases where no one is really contesting them, and in those instances, something like that just would not be brought to our attention. It’s not a situation where the courts have the ability to go through every document that’s filed and challenge and question those documents.”
I respectfully but firmly disagree, Judge. You don’t have to look at “every document that’s filed” to realize summary judgment is improper. All you had to do was look at the only document the Plaintiffs rely upon – the affidavit. If you had, and you followed the plain language of Rule 1.510, you’d deny summary judgment, even in uncontested cases. To act otherwise – and to tell the media otherwise – is to close your eyes to the glaring problems in foreclosure cases and to enter final judgment anyway (what the law calls “willful blindness,” hence the title of this blog).
The unfortunate irony here, Judge, is that the foreclosure crisis has spun out of control in recent weeks because of these affidavits. Robo-signers executed these affidavits by the thousands without having personal knowledge of their contents, as required. What’s most unfortunate about this, in my view, is this could have – and should have – been prevented. After all, the very purpose of the rule requiring the documents be attached is to restore credibility to the filings when the affiant lacks personal knowledge. Unfortunately, too many judges allowed foreclosures without this required credibility, and now the situation has blown up in our faces. (A question worth pondering – would the fraudulent affidavits be as big of a controversy if the requisite documents were attached?)
I’m not saying this is your fault. However, I firmly believe that if judges applied the law and stopped bending over backwards to help the foreclosure mills “push through” cases the problems we’re now facing would be far less pervasive. Even if you disagree, it’s time for you to stop acting like you have no obligation to review files. You do, even in uncontested cases. Also, it’s also time for you to stop systematically denying motions to dimiss without a hearing. This causes reasonable people, including myself (and, yes, even other judges with whom I’ve spoken) to question whether you are fair and impartial. After all, when you’re openly telling the media that you don’t review files, it’s not unfair for me to wonder (as in this Motion to DQ Judge) whether you’re reviewing my clients’ files before you deny their motions to dismiss, via a form Order, without a hearing.
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