Archive for September 19th, 2014

Unveiling My Pet Defense & the Judges Who Follow It

Newsweek did a story recently about “Florida’s Foreclosure Nightmare.”  I was quoted the story, and it was a national story, but I didn’t even blog about it.  You see, the story was so darn depressing.  Frankly, I’m tired of talking about how hard it is to defend foreclosure cases in the Florida court system.  Yes, it’s hard, and yes, the system is stacked against us.  We all know this.  Truth be told, though, it is certainly possible to fight foreclosure.  Yes, it’s hard, but it’s possible.  And yes, like the Newsweek article suggests, there are times I feel like I’m battling the judge/court system rather than the bank or its counsel.  But there are plenty of judges in Florida who are fair and who try to follow the law.  Today, it’s time to mention some of them, and to unveil a defense I’ve been using regularly to help Florida homeowners but which I have yet to mention on this blog.

Take a look at Florida Statute 559.715.  It provides:  “…the assignee must give the debtor written notice of such assignment as soon as practical after the assignment is made, but at least 30 days before any action to collect the debt.”  This statute is part of Florida’s Consumer Collection Practices Act (“FCCPA”), Florida’s version of the Fair Debt Collection Practices Act (“FDCPA”).  While the statute is a Florida statute (and I’m only licensed to practice law in Florida), the FDCPA applies everywhere, and most states have some statutory scheme similar to the FCCPA.  Hence, I see no reason the argument I’m raising here can’t work everywhere – at least sometimes.

In layman’s terms, the argument is simple.  If the bank filing the foreclosure lawsuit is not the original creditor, that bank has to give the homeowner written notice of the assignment of the debt at least 30 days before filing that suit.  Where the notice is not given, the plaintiff has not complied with the statute, so the case should be dismissed.  Such a dismissal would not be a judgment on the merits and would not give rise to a free house, but, similar to the result on the paragraph 22 dismissals I’ve spoken of so many times, where a plaintiff fails to comply with this condition precedent, the case should be dismissed without prejudice.

I’ve made this argument hundreds of times (yes, hundreds) over the last couple of years.  The argument the banks regularly make against me is that mortgage foreclosure is not an “action to collect the debt,” as it is merely a foreclosure action, not a suit for money.  For the reasons set forth in this Answer Brief, I think that argument is wrong.  In fact, I believe Florida’s Second District Court of Appeal explicitly held it is wrong in a decision issued on August 15, 2014.  See Gann v. BAC Home Loans Servicing, LLP, Case No. 2D12-6271 (Fla. 2d DCA 2014).

Check out the Answer Brief.  This is the argument I’ve been making across Florida courts over the last two years.  And as I say in the brief (see Issue IV), I’ve prevailed on this 559.715 argument before thirty (yes, 30) different Florida circuit court judges.

At present, there is not a published Florida decision which says a foreclosure lawsuit should be dismissed for failure to give the notice set forth in Fla. Stat. 559.715.  But since this issue is now in the appellate courts, I think that decision is coming.  In the meantime, I want to take note of the judges who have followed the law (or what they believe the law to be) and dismissed at least one case based on a foreclosure plaintiff’s failure to give the notice required by Fla. Stat. 559.715.  If you’re before these judges with this fact pattern, you should at least have a fighting chance.  And if your judge isn’t listed here, maybe I just haven’t had a chance to argue this precise before him or her yet (or maybe, candidly, I have so many of these Orders I inadvertently left a few off the list).  Regardless, at a time when Newsweek is criticizing Florida judges, I’d like to note a few who try their best to follow the law, despite a system that’s rigged against consumers:

Pinellas:  Hon. Mark Shames, Hon, Pamela Campbell, Hon. John Schaefer, Hon. Bruce Boyer, Hon. David Demers, Hon. Jack Day, Hon. Walt Logan, Hon. Thomas Minkoff, Hon. Amy Williams

Hillsborough:  Hon. Sandra Taylor, Hon. Perry Little, Hon. Donald Evans, Hon. Christine Vogel, Hon. Raul Palomino, Hon. Judy Biebel, Hon. J. Rodgers Padgett, Hon. Frank Gomez

Pasco:  Hon. Ray Ulmer

Orange:  Hon. Alice Blackwell, Hon. Donald A. Myers, Jr., Hon. Lisa Munyon, Hon. Emerson Thompson, Hon. John Adams

Marion:  Hon. Carven Angel

Brevard:  Hon. W. David Dugan, Hon. Lisa Davidson

Seminole:  Hon. Carmine Bravo, Hon. Alan Dickey

You’ll note my Answer Brief also sets forth another defense – the bank’s obligation to give the face-to-face counseling set forth in 24 C.F.R. 203.604 on an FHA mortgage.  I’ve blogged about this issue previously, but the write-up and case law citations are much more comprehensive in the brief.  Oh, and note all the out-of-state cases?  I’m extremely confident this argument should work any and everywhere, so long as you have an FHA mortgage.  But while we’re naming judges, let’s mention those who have dismissed at least one of my cases based on failure to give face-to-face counseling (understanding that FHA mortgages are far less common than the mortgages with paragraph 22, so the issue does not come up nearly as frequently):

Pinellas:  Hon. Jack Hellinger, Hon. Walt Logan, Hon. Pamela Campbell, Hon. Walter Schafer, Hon. John Schaefer

Hillsborough:  Hon. Sandra Taylor, Hon. Perry Little, Hon. Donald Evans, Hon. Christine Vogel, Hon. Judy Biebel, Hon. J. Rodgers Padgett

Orange:  Hon. Emerson Thompson

Lee:  Hon. James Thompson

Polk:  Hon. Randall McDonald, Hon. Cecilia Wilhite

So when you’re reading the Newsweek article, know that, yes, the system of fighting foreclosures in Florida is hard, but it is possible, and there are many circuit judges – many of them named herein – who do try their best to follow the law.


Mark Stopa

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