Posts Tagged ‘foreclosure defense attorney Mark Stopa’
Posted on May 28th, 2012 by Mark Stopa
I’ve had many clients come into my office recently, having paid tens of thousands of dollars pursuant to loan modification agreements with banks. This Memorial Day, I’m so thankful for the honest bankers who cared enough to work out agreements with these homeowners so as to avoid foreclosure, enabling these allow hard-working homeowners to make monthly mortgage payments and remain in their homes. OH, WAIT.
These hard-working homeowners paid tens of thousands of dollars, diligently made all monthly mortgage payments, and did everything the banks asked them to do to stay in their homes and avoid foreclosures. But the bankers weren’t honest and, and these loan modifications were nothing to be thankful for. It was all a fraud. A farce. You see, these homeowners entered a loan modification agreement and made all of the monthly payments required thereunder, but they got sued for foreclosure anyway, often waiving all defenses to that foreclosure as part of the loan modification!
Please, please don’t make this mistake. Please, please don’t fall into this trap. Please, please, please read these articles:
Tempoary loan modifications are the ultimate scam!
Loan Modifications can CAUSE foreclosure!
Banks Offer Loan Modifications to Dupe Homeowners!
I’m not trying to say homeowners should never do a loan modification. My point, simply, is this … banks know how desperate many homeowners are for a loan modification, and bankers prey on that desperation, resulting in agreements that are terribly one-sided and, yes, even fraudulent. If you’re going to enter an agreement like this, you have to do so with both eyes open.
I could write pages and pages of terms that I think a loan modification should include. I could give horror story after horror story of homeowners who made tens of thousands of dollars in payments yet got sued for foreclosure anyway. Instead, I’ll put it like this … if you’re adamant about entering a mortgage modification, and you have a bank willing to do so, I’d make sure, at worst, of the following:
1. The loan modification is in writing, signed by you and the bank. A bankster telling you over the phone that you have a deal is about as trustworthy as an email from Nigeria telling you that you’ve won $10,000,000 and that you need to mail them a $10,000 check to claim your prize.
2. The loan modification specifically says, in writing, that the bank will not sue you if you make the monthly payments, or, if a suit is already pending, that the suit will be dismissed (upon your entry into that agreement). That might sound obvious, but what good is a loan modification – and what purpose does it serve to mke monthly payments – if the bank can still sue you for foreclosure anyway?
3. The loan modification has some type of written representation from the bank that it is the owner/holder of the Note and Mortgage. Incredibly, I often see loan modifications where the bank asks the homeowner to represent that it is the owner/holder of the Note and Mortgage. This is bass ackwards. The typical homeowner has no idea whatsoever which bank owns that Note/Mortgage – that’s something the bank should have to represent, to the homeowner, so the homeowner has some recourse if it turns out to be false.
4. The mortgage modification is recorded in the Official Records of the county where the property is located. If it’s not recorded (or not in a format that it can be recorded), chances are pretty good that it’s not real.
5. The loan modification agreement does not require you to waive all defenses to foreclosure. If I’ve seen this once, I’ve seen it 100 times. A homeowner is desperate for a modification, so he/she will sign anything, even something that says all defenses to foreclosure are waived upon any default in the modified agreement. This might be kosher for homeowners who know they won’t re-default, but few are in that boat. Even if you really want a loan modification, do you really want to be in a position of not being able to defend a foreclosure because you’ve waived all defenses?
If we all stand up, and insist on these basic terms, then perhaps we can collectively force banks to enter loan modifications that aren’t so one-sided.
Mark Stopa
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Posted on April 11th, 2012 by Mark Stopa
I talked to two prospective clients this week, and both conversations broke my heart. In both cases, it was clear to me that I really could have helped these homeowners, but they waited too long to consult me.
In the first case, the homeowner failed to defend and was defaulted by the clerk. A default, of course, is like a forfeit in sports. It’s the court’s way of saying a defendant does not get to participate in a lawsuit or assert any defenses in opposition to foreclosure. It is possible to vacate a default (and, hence, defend a case), but the longer one fails to act after having been defaulted, the harder it is to defend a case.
In this particular case, the bank was so slow to prosecute (even after getting a default against the homeowner) that the clerk issued a notice of intent to dismiss for lack of prosecution. Incredibly, even after receiving that, the bank still failed to do anything for 60 days. If this homeowner had consulted me at that point, I would have filed a motion to dismiss for lack of prosecution. While I can’t “guarantee” anything, I am virtually certain I would have gotten that motion granted and the case would have been dismissed. Alas, the homeowner did not consult with me, and about 120 days after the notice was issued, the bank finally woke up and filed something, precluding a dismissal.
An opportunity for a great result presented itself, but the homeowner didn’t have a lawyer, so the opportunity was lost.
In the second case, an elderly homeowner suffered a final judgment of foreclosure while trying to defend his foreclosure case himself. He was desperate to file an appeal and willing to pay me to do so. Sounds good, right? Well, for me, it doesn’t matter if a client is willing to pay; if I don’t think I can help, I’m not going to take somone’s money. Don’t get me wrong; I’m more than happy to take on an appeal. The problem is that if a homeowner doesn’t make the appropriate arguments (in a procedurally proper way) before the foreclosure judgment was entered, then there is little any foreclosure defense lawyer can do about it on appeal. After all, the purpose of an appeal is to ask the higher court to rule that the lower court made a legal error. If the homeowner didn’t argue something correctly (or at all), then the appeal won’t be successful.
What really frustrated me about this case was that, prior to suffering the final judgment of foreclosure, the homeowner actually got the judge to dismiss the case with prejudice! Unfortunately, the judge later vacated that order of dismissal upon a motion from the bank. When I reviewed the transcript from the hearing on that motion, I was pulling my hair out with frustration, feeling confident that the judge would not have vacated his order of dismissal if I was involved in the case at that stage of the case. Alas, I was not involved, so the motion was granted, the order of dismissal was vacated, and, ultimately, the homeowner was foreclosed.
What’s perhaps more frustrating about that is that the homeowner had enough money to pay for a court reporter and order a transcript of the hearing, but he tried to handle the hearing himself. I’m sorry, but that’s ass backwards.
Look, I know that many homeowners think they know a lot about foreclosure law. Some of them, quite frankly, have taken advantage of their unemployment (to the extent that’s even possible) by studying foreclosure laws. That’s all fine and good, but I’d bet anything that I know far, far more about the arguments to make in opposition to a bank seeking to vacate an order of dismissal under Rule 1.540. As I read the transcript, it was clear this homeowner had no idea what to argue or what to say. The bank brought witnesses to testify and the homeowner had no idea what to do.
This was a huge hearing, mind you. If he won, then the order dismissing his foreclosure lawsuit with prejudice would have remained in place. It was important enough for him to hire a court reporter, and he had the financial means to do so, yet he decided to handle this hearing without a lawyer. Sigh.
By no means are lawyers perfect, and that includes foreclosure defense lawyers. However, these were two examples, just from this week, where it was very apparent to me that I could have helped homeowners avoid foreclosure if only those homeowners had consulted with me sooner.
So if you’re wondering when to retain a foreclosure defense attorney, learn from the mistakes of these two homeowners. Hire a lawyer to defend your case from the outset. If you don’t, you risk missing out on viable arguments and defenses that may well help you avoid foreclosure.
Mark Stopa
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Posted on September 21st, 2011 by Mark Stopa
Today’s St. Pete Times discusses how Florida Governor Rick Scott and various members of the Florida legislature are considering whether to convert foreclosure lawsuits in Florida to non-judicial proceedings. This would mean, essentially, that instead of having to prevail in court to be entitled to a foreclosure, a bank could obtain a foreclosure without any court involvement, essentially by declaring its right to foreclose on its own.
First off, any existing clients of Stopa Law Firm should not be worried. While I can’t predict the actions of our idiot governor or the legislators who may or may not be paid off by bank lobbyists, I cannot imagine any circumstance in which existing lawsuits which are currently pending in our courts would somehow be removed from the court process. In other words, no matter what, this proposed legislation should not impact pending cases.
That said, this entire concept is so absolutely ridiculous – pending cases or not – that it’s hard to know where to begin.
We’ve all seen, over the course of the past year, how the foreclosure process is filled with fraud. We’ve seen banks knowingly create false evidence and try to use that evidence to procure a foreclosure. We’ve seen banks foreclose on the wrong home, sue people who were current on their payments, lie about the amounts owed, and take countless other nefarious acts. Anyone lobbying for non-judicial foreclosure has to realize:
if banks are willing to commit such awful acts of fraud when foreclosures are supervised by courts, what would they do without supervision?
And what would it say about you to bless this misconduct, to the detriment of Florida homeowners?
I trust most people reading this don’t need me to point out the ridiculousness of non-judicial foreclosures given what we now know about bank misconduct.
Banksters like to retort by saying “pushing through foreclosures faster will help the economy?” Oh, really? Banks aren’t taking title to properties now, even after obtaining foreclosure judgments (as seen by the incredibly frequency with which foreclosure sales are cancelled), because they can’t handle or don’t want these homes. That’s why countless properties remain vacant, uninhabited and dilapidated – banks don’t want them, even at the slow pace at which foreclosures are being processed. Hence, what will happen if all of these properties are thrown onto the market, all at once, accelerating the process? Who’s going to buy, or live in, 100,000 homes? 500,000 homes? 1,000,000 homes?
Again, I’m confident most of you reading this realize the absurdity of the bankers’ position. Hence, let me address the issue that you may not have realized – what I deem the insurmoutable obstacle to any proposed legislation for non-judicial foreclosures.
Quite simply, most mortgages entered in Florida require banks to foreclose via a court proceeding. If you’re not sure what I mean, read your mortgage. It probably contains a clause similar to the following:
Mortgagee, at its option, may [upon default in payments] elect to require immediate payment in full of all sums secured by this Mortgage without notice or demand and may, at its option, foreclose this mortgage by judicial proceeding.
Did you catch the key language? By judicial proceeding. You see, most Florida mortgages explicitly require that banks foreclose by a judicial proceeding.
Do you think Florida’s governor or the legislature can override that requirement? I sure don’t. This term of the mortgage is part of a contract between the bank and the homeowner. The governor and the legislature are strangers to that contract. Hence, they have no right whatsoever to change the terms of that contract.
By way of example, most people know that most foreclosure lawsuits, when they go to trial, are tried by a judge, not a jury. This is because most mortgages have a clause wherein the homeowner agreed to waive any right he/she had to a jury trial. Generally speaking, courts enforce this provision because the parties agreed to it, and no matter how inequitable it may seem, the parties are free to contract to whatever terms they choose, and those contract terms must be honored. In other words, no matter how unfair or inequitable we may think these jury trial waivers are, courts honor them because the parties agreed to them.
With this in mind, I cannot fathom how Florida’s governor or legislature could create a law (even if they were so inclined) that removes foreclosures from the court system. Where a homeowner and a bank agreed that the bank had to obtain a foreclosure via a judicial proceeding, this contractual obligation cannot be changed by a third party. It simply can’t, any more than the jury trial waiver can.
To clarify, I suppose it’s possible (idiotic, but possible) to allow non-judicial foreclosures on mortgages that have not yet been entered/signed (presuming those mortgages are written in a way that allow non-judicial foreclosures). In that circumstance, the legislature would not be enacting a requirement that is contrary to the express terms of the parties’ agreement. However, the legislature simply cannot allow non-judicial foreclosures on existing mortgages given how mortgages in Florida are presently written. This is, quite clearly, an insurmountable obstacle to non-judicial foreclosures in Florida.
Mark Stopa
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Posted on July 15th, 2011 by Mark Stopa
About a month ago, I had an interesting hearing on a Motion to Dismiss for Lack of Prosecution. Ten months had passed with no record activity (nothing at all in the court file), so I filed a Notice of Intent to Dismiss for Lack of Prosecution, as contemplated by Fla.R.Civ.P. 1.420(e). In the ensuing sixty days, the only document that appeared in the court file was a Notice of Appearance (by a new attorney for Plaintiff). That sure sounds to me like a “lack of prosecution,” huh? One year and the only thing the Plaintiff did was hire a lawyer.
I filed a Motion to Dismiss for lack of prosecution, citing Chemrock Corp. v. Tampa Electric Co., 23 So. 3d 759 (Fla. 1st DCA 2009). Chemrock held that a document filed within the 60-day window after a notice of intent to dismiss would not preclude dismissal unless it was designed to advance the case towards judgment. Under a littany of cases (interpreting the old version of the rule, which Chemrock deemed to apply to the 60-day window), a Notice of Appearance did not qualify.
Opposing counsel cited Pagan v. Facilicorp, Inc., 989 So. 2d 21 (Fla. 2d DCA 2008) and Edwards v. City of St. Petersburg, 961 So. 2d 1048 (Fla. 2d DCA 2007). These cases are in direct conflict wiht Pagan, as they hold that any paper filed in that 60-day window precludes dismissal for lack of prosecution, regardless of whether it advances the case towards judgment.
So here we have two different appellate courts, and they disagree about how the rule should be applied. Personally, I think the analysis and rationale in Chamrock is the far better way to apply the rule. As the First District explains, if the law is not as it held, a plaintiff “will be able to continue the litigation perpetually by filing similar acknowledgements (“Yes — we have still not done anything”) whenever a notice of lack of prosecution is filed.” 23 So. 3d at 673.
In other words, if Chemrock is not the law, then a plaintiff can do nothing to advance a case towards judgment but can nonetheless prevent dismissal of the case merely by filing any innocuous paper (Notice of Unavailability of Counsel, Notice of Change of Address, etc.). Such a rule would have no “teeth” whatsoever, as it would be virtually impossible to dismiss a case for lack of prosecution, even where the plaintiff is doing nothing.
Under my example, above, a plaintiff could do nothing for 10 months, but then right before the 60-day window passes, file the Notice of Appearance and avoid dismissal.
With what is transpiring in foreclosure cases today, our court system desperately needs Rule 1.420(e) to be applied as the First District held in Chemrock. Rightly or wrongly, trial court judges are desperately trying to find ways to adjudicate/dispose of cases. Allowing Rule 1.420(e) to have some “teeth,” as it did for many years prior to the amendment of the rule in 2006, would enable judges to appropriately dismiss cases, ease the burden of clogged dockets, and ensure a revenue stream to the courts via additional filings. After all, more dismissals for lack of prosecution (without prejudice) means more filings and more filing fees. This would be an incredibly pragmatic way to deal with a huge, state-wide problem.
So what does the Florida Supreme Court do? Disapproves the First District’s decision in Chemrock and approves Pagan and Edwards. What does this mean? A plaintiff can file any piece of paper in the sixty-day period after 10 months of no activity and prevent dismissal. In other words, unless the plaintiff’s lawyer is totally unconscious for a year, a dismissal for lack of prosecution is basically impossible.
With all due respect, this is the absolute wrong time for such a rigid rule. It’s totally impractical. Our courts are flooded with an unprecedented number of foreclosures – many of which have had little or no activity for long periods of time – and now is when the Florida Supreme Court makes it harder to dismiss cases?
I find the last paragraph of Justice Pariente’s concurring opinion quite telling:
Unfortunately, the significantly diminished resources available to the trial courts, including lost case managers and the flood of mortgage foreclosure cases, have taxed our trial courts to the limit, making active case management more difficult in all cases. Regardless, the bottom line is that these problems cannot be solved by using Rule 1.420(e) to dismiss cases where the litigants intend to continue to prosecute the case to a conclusion.
Justice Pariente acknowledges the problem, but she refuses to create a rule to help fix it. With all due respect, Justice Pariente (and every other justice except for Justice Quince, who appropriately dissented), you missed this boat here.
I understand the rationale for the Court’s decision. However, the Court’s refusal to ”use Rule 1.420(e) to dismiss cases” will only cause trial court judges to adjudicate/dispose of cases in other ways. In other words, if the judges can’t dismiss cases under Rule 1.420(e), then they’re going to dispose of cases in other, less appropriate ways.
To illustrate, I’ve blogged previously about how Florida’s Fifth Judicial Circuit (Hernando, Marion, Lake) was employing a procedure whereby if a Plaintiff was not prosecuting a case, the judges would “administratively close” the file. There is absolutely zero legal authority for such a procedure – it’s something that the judges are simply not allowed to do. In fact, a recent decision out of the Fourth District held as much:
the trial court may have considered the case dormant and simply ordered the closing of the file, a procedure not found in the Florida Rules of Civil Procedure or case law. In doing so, the plaintiff’s case fell into a dark void in the courthouse. Florida RCP 1.420(e) articulates the correct process to be utilized by litigants and trial courts when a case has been dormant too long. The trial court erred in directing the clerk to close the file.
Arzuman v. Budin, 36 FLW D371 (Fla. 4th DCA 2011).
When I first saw this procedure being employed, I inquired with court personnel in the Fifth Circuit about why this was being done. Two different personnel admitted to me that the court was employing this procedure because it enabled them to report a case as “closed,” i.e. not active, even though the case was not over. In other words, the court would look better to the legislature (or whomever else those numbers were reported to).
Suffice it to say I was not pleased. After all, these Orders which “administratively close” a case are terribly biased towards plaintiffs, as they enable a case to be “closed,” yet allow the case to be re-opened whenever the plaintiff chooses, even years later (as opposed to dismissed, which requires a new lawsuit and a new filing fee). Why should the plaintiff, after months/years of inactivity, get to wake up one day and say “OK, I’m ready to prosecute my case now?”
Months ago, I had a lengthy discussion/argument with the General Counsel for the Fifth Circuit about this procedure. When the Budin case came out, I thought for sure the Fifth Circuit would change its procedure on an administrative level. Nope. This week, I received another Order Administratively Closing Case. So I wrote the General Counsel another email, reminding her of Budin and asking that this procedure cease.
After a series of unpleasant emails about it (where she berated me for criticizing the judiciary and said she felt “compelled” to report me to The Florida Bar, yet, ironically, accused me of trying to intimidate the court), she told me she had discussed the matter with the Chief Judge and that he was not going to change the procedure. My remedy was to bring an appeal, i.e. to handle the issue on a case-by-case basis. To clarify, I had informed her of Budin, she talked to the Chief Judge, and yet the Court was continuing to employ a procedure that, if we’re being honest, clearly has no legal basis.
So, Justice Pariente, do you see the point now? You may think Rule 1.420(e) shouldn’t be “used to dismiss cases.” But the trial court judges in Florida are so inundated with cases that your refusal to create a rule enabling them to dismiss dormant cases has resulted in trial court judges employing procedures like this … “closing” cases administratively without any legal basis to do so.
But it’s worse than that. The backlog of cases (and having their hands tied on dismissals) is causing judges to do other inappropriate things as well. In Hillsborough, judges have been denying motions without notice and without a hearing. As I write this, I find myself writing a letter to the judges in Hillsborough trying to convince them that I should get a hearing on my motions to dismiss before the judge denies them. After all, even the senior judges (who were soundly cricitized by many) were often granting these motions.
Respectfully, is that what this has come to? I have to convince judges to give me a hearing (on motions that, in similar cases, have often been granted)?
Look at it this way … Which is better – adopting a version of Rule 1.420(e) that has some “teeth,” enabling cases to be dismissed where they’ve been dormant, or leaving so many dormant cases active that judges are so overwhelmed they feel compelled to dispose of cases by denying motions without notice and without hearing?
Which is better – adopting a version of Rule 1.420(e) that has some “teeth,” and enables cases to be dismissed when they’ve been dormant, or having judges arbitrarily, with no procedure/rule in place whatsoever, choose to “administratively close” a case without notice, at their 100% whim/discretion?
I feel, respectfully, like the Florida Supreme Court is out of touch with what is going on in trial courts throughout the state. It’s as if they’re parents who are talking to their child about sex/abstinence for the first time and the “child” is 23 and just graduated college.
Florida’s court system is a mess. In some senses, it’s a free-for-all, with different judges in different counties employing various “procedures” to dispose of cases. It’s long past time that the Florida Supreme Court was willing to take stock of the situation and employ rules that can help everyone get through the mess.
Mark Stopa
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Posted on June 8th, 2011 by Mark Stopa
I was just perusing the comments to these blogs and I saw a good question, one worthy of its own blog:
“At what point do I need to retain an attorney; I am currently two months behind [on my mortgage payments]“
Here’s my take.
No matter what, I urge everyone to retain a foreclosure defense attorney within the first 20 days after being served with process, i.e. after a process server or sheriff serves you with a Summons and Complaint. It is far, far better (and, often, much less expensive) to retain counsel from the outset than to wait until the last possible minute to retain a lawyer. Many homeowners don’t realize it, but by trying to defend the case yourself (or not at all) you may waive viable defenses, putting your lawyer in the position of not being able to assert defenses that otherwise would have been meritorious by not filing them soon enough. Don’t make this mistake; make sure you have a lawyer on board as soon as you’ve been sued.
This begs the question of whether a homeowner should retain counsel prior to being sued? Honestly, that’s not absolutely necessary, but there’s certainly an argument for it. For instance, many homeowners enjoy the piece of mind of knowing that an attorney is on board, ready to defend the case, once the foreclosure suit arrives. Also, if you’ve retained an attorney, it is easier to deal with those harassing phone calls that inevitably come when you’re behind on your mortgage – all you need to do is say: “Stopa Law Firm is my attorney on this matter. Don’t call me any more.” Under the Fair Debt Collection Practices Act, those phone calls should cease from that point forward, and if they don’t, you have additional defenses to foreclosure as well as possible counterclaims.
So when is the best time to hire a foreclosure defense attorney? As soon as you go into default, or, at worst, right after you’ve been sued.
That said, if your case is still ongoing and you haven’t retained a lawyer, don’t give up. During a free consultation, Stopa Law Firm can quickly and easily evaluate whether it’s still possible to defend your foreclosure case, even if it’s been pending for a long time. Time and time again, we find that it is. Just don’t wait too long – it’s a totally different dynamic after the court signs a Final Judgment of Foreclosure.
Mark Stopa
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Posted on April 30th, 2011 by Mark Stopa
According to today’s St. Pete Times, Chase is offering cash incentives to some homeowners to consent to foreclosure. I have yet to see this happen on a widespread basis, but it certainly seems like this is becoming more of a possibility for homeowners who fight their foreclosure cases.
This is indicative of what I’ve been telling homeowners for many years now – if you defend your case, you never know what type of settlement a bank may be induced to offer. Who knows; maybe the bank will offer a deal like this to you. Or, if you defend your foreclosure, maybe the laws will change in a way that helps you. The only certainty is this – if you give up, and get foreclosed, you lose any ability to take advantage of these possibilities.
Also, how cool is it that banks are being forced to pay cash to homeowners in foreclosure? Banks got their bailouts; it’s nice to see some homeowners getting a little relief, too.
Here is the article.
JP Morgan Chase has a deal for some homeowners behind on their payments: If they’ll accept a quick sale of their home, the bank will give them $10,000 to $20,000 and forgive what it loses on the mortgage. Homeowners get the cash after the home is purchased in a short sale, meaning the buyer pays less than what the bank is owed.
What’s in it for Chase? By avoiding foreclosure, a process that can take nearly two years in Florida, the bank saves attorney fees, court costs and property taxes. And it speeds the process of getting bad loans off its books. The bank began offering the incentive in late 2010.
“The net result is better for homeowners and investors,” said Mary Kay Bean, a Chase spokeswoman.
Chase still suffers a loss in the process. But generally speaking, sale prices on foreclosure homes are lower than those on short-sale homes.
Bean declined to discuss the criteria used to select homes in the program. But Realtors said the homes are in more desirable locations and newer.
Chase’s offer of cash to walk away from a home and forgiving the loan balance applies only to mortgages the banks owns.
Chase is also offering the cash payment to other homeowners whose mortgages it services. However, whether unpaid balances on these loans will be forgiven depends on the investors who own the mortgages.
In either case, borrowers aren’t walking away without consequence. After a home is sold, the settlement is reported to credit bureaus, Bean said. Sellers must also pay taxes on the money forgiven by Chase since it is considered income. Obviously, homeowners whose mortgage balance was not waived will be in worse shape creditwise.
Realtor blogs are buzzing with chatter about this program, saying Chase is offering up to $35,000. Bean declined to confirm that amount.
Another factor beneficial for homeowners and real estate agents: Chase provides an answer in about 35 to 40 days after an offer is made on a home. Most short sales typically take six to nine months to finalize.
“We’ve been working to get than down,” Bean said, stressing that Chase has closed more than 100,000 short sales since 2009.
Florida is saddled with more than 300,000 foreclosures. Thousands of other loans are nearing default because the homes are worth less than what is owed.
Bean declined to discuss whether the cash offer would propel more borrowers into a “strategic default.” The term describes homeowners who can pay their mortgages but stop because they owe more than the home is worth.
“It’s a very individual decision on how some people handle their financial decisions,” she said.
The St. Petersburg Times found two real estate agents who represent borrowers in the Chase program. The homeowners declined to talk.
Andrew Duncan, leader of the Duncan Duo & Associates at Keller Williams Realty in Tampa, is listing a Clearwater home for $150,000. He was skeptical of the offer until holding a conference call with a Chase representative.
“It’s a win-win all around,” he said. “The banks need to do something to get these homes on the market.”
Chris Hounchell, a short sale specialist with RE/MAX Metro in St. Petersburg, represents the seller of a high-end condo. Banks have finally realized they need to prevent more foreclosures, he said. More importantly, Hounchell said, the cash offers will help stabilize the housing market by ridding the rolls of distressed properties.
“It’s a step in the right direction,” he said. “Chase is offering more money than anybody else.”
Bean offered this advice to borrowers: “You should open your mail. This could be very important for some.”
Mark Stopa
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Posted on April 20th, 2011 by Mark Stopa
I recently had a hearing on a Motion to Quash Service. The Plaintiff was unable to serve my client via personal service, i.e. a process server hand-delivering the Summons and Complaint, see Fla. Stat. 48.031, so it resorted to service of process by publication. This is where a plaintiff can follow statutory procedures to effectuate service on a defendant through the Secretary of State.
There were several problems, any one of which required that service be quashed.
First, by including a request for a deficiency judgment in its Complaint, Plaintiff was seeking monetary relief, and Florida law does not authorize service of process by publication in cases where the plaintiff seeks monetary relief. See Fla. Stat. 49.011; see also Huguenor v. Huguenor, 420 So. 2d 344 (Fla. 5th DCA 1982) (“The action here is one for money damages based on the tort of conversion. It is simply not the type of action where service may be obtained by publication.”).
Second, Plaintiff contended my client had evaded service, but failed to so allege in the body of its Complaint. This failure requires that service be quashed. See Monaco v. Nealon, 810 So. 2d 1084 (Fla. 4th 2002); Drake v. Scharlau, 353 So. 2d 961 (Fla. 2d DCA 1978).
When I argued this second principle of law, the judge found it difficult to believe – “How can a plaintiff allege evasion of service in the Complaint?” This is a fair criticism, particularly since a plaintiff would have no way to know a defendant will evade service when it drafts the Complaint. However, the law requires this, and the requirements for service by publication are strictly construed, so this requirement must be followed. As I told the judge, it’s not as hard as one might think – the plaintiff just needs to file an Amended Complaint.
Third, my client did not evade service; the plaintiff resorted to service by publication too quickly. To illustrate, the process server went to my client’s property on just six different occasions, and he easily could have not been home. Also, the process server left a business card, and my client called and offered to cooperate, but by that point was told the process server no longer had the paperwork.
When I made the third argument, the judge appropriately wondered whether an evidentiary hearing was required to resolve the factual dispute. I told him it was necessary to resolve the factual dispute on that issue, i.e. whether my client evaded service, but the motion should be granted for both of the first two reasons (which required that the motion be granted regardless of anything else).
I also asked for a stay pending appeal, as in the event the court ruled against me, I was entitled to seek appellate review and have the case stayed while I did. (And, yes, there is case law on this as well.)
The plaintiff’s attorney realized he was getting destroyed in the arguments. Hence, before the judge could rule, he offered to waive deficiency if my client agreed to have the motion to quash service be denied. His thought process made sense, sort of – if service by publication was not authorized in cases that seek monetary relief, as I argued, the plaintiff could cure the problem (or that problem, anyway), by striking the request for monetary relief. It was as if the lawyer was saying “we struck the request for monetary relief, so now service by publication was okay.”
The judge asked if I agreed to this request. When I said I’d need to speak to my client, he stopped the hearing to allow me to do so. My client agreed, and I hand-wrote an Order, to which the other side agreed and the judge signed, saying:
The motion to quash service is denied. Plaintiff’s request for a deficiency judgment and monetary relief is stricken with prejudice. This is an in rem proceeding only, and Plaintiff is entitled to no relief against Defendant.
Perhaps my favorite part about this episode, aside from the fact that the deficiency was stricken with prejudice (meaning it cannot be pursued ever again) is that the case is still not over; in fact, my client’s Motion to Dismiss is still pending. In other words, my client is still able to defend the foreclosure case on the merits, and continue living in his home while he does, without risk of a money judgment against him.
This sounds like an impossibly good result, but I can see this scenario unfolding again. So make sure you challenge service of process by publication. Make sure you point out that deficiency judgments are unavailable if process is served by publication. It wouldn’t surprise me if the plaintiff agrees to waive/strike the claim for deficiency to try to avoid more headaches with deficient service of process (particularly if you request a stay pending appeal, as that will lawfully throw a huge monkey wrench into any attempts to move the foreclosure suit forward).
Mark Stopa
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Posted on January 28th, 2011 by Mark Stopa
One of my ongoing frustrations as a foreclosure defense attorney is seeing banks and their lawyers repeatedly and systematically refuse to comply with basic rules of procedure and/or Florida law. One common example is their repeated refusal to verify their Complaints in residential foreclosure cases, as required by Fla.R.Civ.P. 1.110(b). This is a really simple thing to do (or, at least it should be, if banks are acting appropriately), yet banks and their lawyers routinely file foreclosure lawsuits on residential property without a verification. Respectfully, there is absolutely no excuse for this.
When any party in a Florida lawsuit fails to comply with a rule of procedure or an Order of the Court, e.g. the requirement in 1.110(b) to verify foreclosure complaints, dismissal is an authorized remedy. See Fla.R.Civ.P. 1.420(b). Unfortunately, all too often, when banks fail to include the requisite verification, judges give them a second chance, giving them leave to file an Amended Complaint. Essentially, this means the bank can fix the problem within the confines of the pending lawsuit.
Respectfully, this drives me nuts. Banks and their lawyers are willfully and intentionally violating a rule of the Florida Supreme Court on a routine, systematic basis. Why is there no sanction for this? Why should they get a “do-over”?
When this happens, I believe dismissal with prejudice is an appropriate sanction. At minimum, the dismissal should be without prejudice but without leave to amend. This way, the banks will have to re-file a new lawsuit, with a new case number, and pay a new filing fee. If more judges ruled this way, like this judge just did, then banks and their lawyers would learn their lesson (presumably) and stop refusing to comply with basic rules of procedure.
The judge’s Final Order of Dismissal sets forth this precise rationale. I’ve been waiting for a ruling like this for months – what a joy to read. After months of watching banks’ willful misconduct go unpunished, it’s great to see a Florida judge enter a sanction for such obvious misconduct.
Mark Stopa
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Posted on January 21st, 2011 by Mark Stopa
Foreclosure defense attorney Mark Stopa and a client of the firm were profiled today on Bay News 9 (Tampa’s NBC affiliate). Here is a video version of the story; the written version is below.
What should you take from this? Easy. Fight your foreclosure. Don’t give up. You may be able to improve your situation drastically if you retain a competent foreclosure defense lawyer to defend your foreclosure case.
ST. PETERSBURG –
Susan Reboyras has lived in her St. Petersburg home for nearly eight years but she hasn’t paid her mortgage in nearly two. “When the boom was high, we thought it was going to stay high, and we pulled equity out,” Reboyras said.
Reboyras and her fiancé run A-Plus Restorations out of the home. When the economy stalled, they made a decision. “We had to decide were we going to make the payments,” Reboyras said, “or were we going to continue with advertising to bring money in the door to keep the business going so we could make payments.”
Many are in the same situation all across the state. According to data from LPS Applied Analytics, the average is 677 days before a house in foreclosure is sold and the homeowners kicked out. It’s one of the highest totals in the country.
Foreclosure defense attorney Mark Stopa said more homeowners in foreclosure should fight it. “Don’t just give up and walk away. Defend and fight your case and save up your money,” Stopa said.
Stopa said foreclosed homeowners staying in their home benefits the community more than if the bank was in control of the home.
“Time and time again, these banks, even when they get that foreclosure judgment, they don’t actually set the sale,” Stopa said. “What results is this lengthy period of limbo where the homeowner has lost and they’re scared into leaving, but the bank doesn’t take the title, so the property sits vacant for months, sometimes years.”
In Reboyras’s case, she believes she made the right decision for her family. “Right now, we’re self-sustaining, she said. “Yeah, we’re not making the mortgage payments but it’s going to a means that keeps us from the government supporting us.”
Mark Stopa
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Posted on December 22nd, 2010 by Mark Stopa
I hate foreclosures. Whether a home is old or new, big or small, in tip-top shape or in need of TLC … foreclosure stinks. I particularly dislike foreclosures when the homeowners dutifully paid their montly mortgage payments for 10, 15, even 20 years – only to now be facing foreclosure.
This cartoon sums up my feelings on that issue quite nicely.
Mark Stopa
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