Posted on September 26th, 2014 by Mark Stopa
I’ve blogged about a bank’s obligation to provide face-to-face counseling in an FHA Mortgage a couple of times now, introducing the concept here and providing a detailed appellate brief with many case citations here. Those banksters, though … they’re good. And they won’t go down without a fight. Just take a look at what they did in Real Estate Mortgage Network, Inc. v. Knight, Case No. 4D13-1880 (Fla. 4th DCA 2014).
In that case, the lower court granted summary judgment in the homeowner’s favor based on the bank’s failure to comply with HUD Regulations, essentially adopting the argument I’ve set forth in these blogs. Unfortunately, that ruling was incorrect for procedural reasons. As the Fourth District explained, where the homeowner introduced evidence at the summary judgment hearing that the bank did not comply with HUD Regulations, but the bank introduced evidence it did comply, the court should have denied summary judgment and allowed the case to go to trial. You see, at the summary judgment stage, the court cannot resolve conflict evidence, as that is the purpose of trial. That’s basically what the Fourth District ruled in Knight.
The banksters, though, they didn’t want to win merely on the procedural issue. They wanted the whole shebang. They wrote a brief – a really good brief, actually – and asked the appellate court to rule the HUD Regulations don’t apply at all. If this were a baseball game, the banksters were swinging for the fences – and they picked a good pitch to do it on, too. After all, the opinion doesn’t reflect it, but if you look at the Fourth District’s docket, you’ll see the homeowner’s lawyer did not even write a brief. Yes, the banksters pushed a case to the appellate courts – a significant appeal, challenging an issue for which there is little precedent – in a case where the homeowner’s lawyer did not even file a brief!! What a scary thought, to ponder the possibility that a Florida appellate court could have ruled that HUD Regulations do not apply to banks even in FHA Mortgages based on one appeal where the homeowner’s lawyer didn’t even present an argument!
Anyway, we’re all fortunate the Fourth District did not buy what the banksters were selling – at least not all of it. Yes, the bank won Knight on the procedural issue. But the question of whether the HUD Regulations apply in an FHA Mortgage – that’s the big question, the legal issue that affects the entire industry. On that point, here’s what the Fourth District ruled:
REMN argues on appeal that the court erred in applying the HUD Regulations and finding they were a mandatory condition precedent. We have held that non-compliance with HUD Regulations may be asserted as an equitable defense in mortgage foreclosure proceedings. Cross v. Fed. Nat’l Mortg. Ass’n, 369 So. 2d 464, 465 (Fla. 4th DCA 1978).
As I read that, the Fourth District is clearly saying that HUD Regulations may be used as a defense to foreclosure of an FHA mortgage, i.e., yes, this is a defense. As a result, even though Knight ruled in favor of the bank, I’ll be using it to support my arguments for consumers in FHA cases.
Could the opinion be clearer in that regard? Certainly. It could be better. It could say that the HUD Regulations are a mandatory condition precedent in an FHA Mortgage. But think of it this way … if the banksters couldn’t get what they wanted out of the appellate courts despite a well-written brief in a case where the homeowner did not even present any arguments, they’re certainly not going to get what they want in the future (particularly now that I’ve laid the arguments and case law out there for all to see).
The banks’ failure to comply with HUD compliance with HUD Regulations is a viable defense to foreclosure of an FHA Mortgage, and I’m confident the defense is here to stay.
Mark Stopa
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Posted on September 19th, 2014 by Mark Stopa
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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