Posts Tagged ‘foreclosure defense attorney Orlando’

5DCA Issues Order to Show Cause to KEL Attorneys

I’m sad as I write this.  Today, Florida’s Fifth District Court of Appeal issued a written opinion in a foreclosure case that affirmed a Final Judgment of Foreclosure.  I’m sad because it didn’t have to be this way.  It shouldn’t have been this way.

Here are the unfortunate facts …

A bank filed suit for mortgage foreclosure against a homeowner, who retained KEL Attorneys as counsel.  The bank set a hearing on its motion for summary judgment, as often happens in these cases.  When KEL Attorneys did not attend the hearing, the court entered a Final Judgment of Foreclosure without opposition.  KEL moved to vacate that judgment, asserting it acted with “excusable neglect” by not attending the hearing, having inadvertently failed to calendar it.  The court denied that motion, so KEL appealed.

At that point, KEL had a pretty good chance of winning on appeal in the Fifth District.  After all, there are many cases which hold it is excusable neglect to not attend a hearing where the hearing was inadvertently not calendared.  To the surprise and dismay of the Fifth District, however, KEL did not frame the issue on appeal in this manner in its Initial Brief.  Instead, KEL asserted that it received no notice of the hearing.  In its Answer Brief, the bank showed that was plainly not true.  By its own admission, KEL had received notice of the hearing – it just failed to calendar it and failed to attend.  KEL tried to fix the problem, and set forth the issue correctly in its Reply Brief, but by that point it was too late.  When an issue is not raised in the Initial Brief in an appeal, it is waived.

On these facts, the Fifth District issued this opinion, which included an Order to Show Cause why KEL Attorneys should not be sanctioned.

The saddest part, meanwhile, is the innocent homeowner who lost this appeal – the foreclosure judgment on her home being affirmed – to no fault of her own.

I’m not going to disparage KEL Attorneys.  That’s not ethical, and it’s not my place.  That said, this opinion is a great illustration of how a homeowner’s choice of counsel can make a huge difference.  Choose wisely, folks.

Mark Stopa

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300 Foreclosures in 3 Days? … Not on My Watch

Making the rounds this week was a story about a Seminole County judge who heard 300 foreclosure cases over a three-day period.  Many media outlets and consumer advocates found this troubling, as it gave the judge less than a minute to adjudicate each case.

This is a terribly sad and unfortunate dynamic.  You know the story – as Florida courts are inundated with foreclosure cases, and the Florida legislature refuses to give our courts the money it needs to function properly, some judges have felt they have no choice but to operate in this fashion. 

I’m pleased to say this type of time crunch rarely if ever happens in cases in which I’m counsel.  Why?  Three simple reasons:

1.  I’m a lawyer.  I hate to say it, but sometimes attorneys are given more respect than pro se litigants.  Remember, all judges are lawyers, and most judges are unlikely to force a fellow attorney to conduct a hearing in 30 seconds. 

I can certainly see how some would think it’s unfair to treat lawyers better than pro se homeowners.  However, candidly, I can see this from both sides.  I’ve watched many hearings where homeowners try to defend themselves but, frankly, have no idea what arguments to make or how to make them.  For instance, “I lost my job” is almost never relevant in a foreclosure case. 

Like it or not, hiring an attorney may give homeowners a better chance of being heard in court. 

2.  “Contested” cases are treated differently.  Many Florida judges treat “contested” foreclosure cases and “uncontested” foreclosure cases differently.  “Uncontested” cases often get set for hearing at the same time as dozens of other cases.  The judges’ rationale in doing so is that nobody is opposing these cases (hence the “uncontested”), so the court can have hearings in such cases quickly, one after another.  Hence, if a homeowner shows up to attend a hearing in such a case, it may have already been set on the court’s calendar for a quick, “uncontested” hearing. 

Conversely, judges know that hearings in “contested” cases will take longer to adjudicate, as someone is there defending them.  Hence, hearings in these cases are often scheduled differently on the court’s calendar.  As a result, contesting your foreclosure case from the outset may ensure your hearing is set in a manner that ensures you have more time to be heard.   

If that doesn’t make sense, look at it this way …

Many Florida judges know that my colleagues and I aren’t going to roll over and consent to foreclosure in a 30-second hearing.  We’re going to have extensive legal arguments and case law.  So the judges aren’t likely to set a hearing in our cases at the same time as hearings in other cases where nobody is arguing.  My hearing might take 20 minutes, while the court could take that same 20 minutes to hear 20 cases.  What do you think the court is going to do, wait on 20 other cases to hear my one case for 20 minutes, or handle the 20 uncontested cases?   

3.  I ask.  In the unusual situation where a hearing in one of my cases is set on a “mass motion” calendar with many other cases, all at once, I ask that the hearing be continued, i.e. file a Motion for Continuance, to ensure more hearing time. 

This is a really simple argument, actually. 

“Judge, I see you have many other cases set for hearing today.  My argument is going to be 15-20 minutes, with case law, so I respectfully submit this case should be heard on another day.” 

What do you think the judge is going to do, delay the hearing in 20 other cases, or the hearing in my one case? 

Having 300 foreclosure cases heard in a three-day period is unfortunate.  Frankly, however, it’s a problem that, quite often, is fairly easy to avoid.

Mark Stopa

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Non-Lawyers Giving Legal Advice on Foreclosure Defense

The information I post on this blog is accessible to the public, and I’m fine with that.  I want Florida homeowners to be aware of the issues that arise in foreclosure cases and, more generally, various political issues.  In today’s business world, knowledge is power, and without knowledge, we’re all doomed to be crushed (by big banks and a largely corrupt system spearheaded by Wall Street). 

In recent months, I’ve come to realize my posts on this blog are sometimes copied and pasted and posted by others, and generally, I’m okay with that.  If people want to share my thoughts, I see that as a compliment.  Recently, however, I’m seeing my posts being copied and pasted verbatim, without citing me, by non-lawyers who are trying to use the information I provide to give homeowners legal advice on defending foreclosures.  Sometimes, the information being posted is horribly wrong and very misleading.  I’m very concerned, so much so that I’m writing this post.   

Do I write this blog to help educate the homeowners and the public at large?  Absolutely.  Does that mean that anyone reading these posts is qualified to teach others how to defend foreclosure cases?  Absolutely not. 

I’ve worked very hard my entire career to prepare/educate myself to litigate lawsuits such as the foreclosure cases I now defend.  I keep myself abreast of emerging case law, I communicate with other lawyers in the industry on a daily basis … I do everything possible to litigate as well as possible.  For any non-lawyer to think he/she can read a few posts and start giving advice to the public is horribly misguided.  In fact, in many instances, I’m concerned this constitutes the unlicensed practice of law, which can be deemed a criminal offense in Florida.

To illustrate, I’ve recently come across a website that encourages Florida homeowners to “take back their homes.”  The site is run by a non-lawyer who seems adamant on convincing the public that homeowners should get to keep their homes, free and clear of mortgages.  Among other things, he tells homeowners that the most important criteria to consider in retaining a foreclosure defense lawyer is whether the lawyer will take the case on a contingent fee.  Apparently, this website author would have his readers believe that getting a house free and clear (eliminating the mortgage) for homeowners is so likely that foreclosure defense attorneys should be willing to take cases on a contingent fee. 

In theory, this “advice” may sound great.  Who wouldn’t want a free house?  Of course, that’s precisely the problem.  This non-lawyer is espousing a result that sounds very appealing but is terribly impractical and horribly misguided. 

I’m not going to lie.  Is it theoretically possible for a mortgage to be “eliminated” in the process of defending a mortgage foreclosure case?  Sure.  However, the chances of that in any given case are so infinitesimally small (and often the result of random luck, not any pre-planned defense strategies) that it is not something worth discussing, much less planning a defense strategy around. 

Let’s put it this way.  I’ve been defending foreclosure cases as aggressively as anyone in Florida, perhaps the country.  Don’t you think if there was any reasonable chance of getting my clients a free house that I’d be incorporating that approach into my defense strategies?  I’d love to get my clients a free house.  Hell, I’d love to get a free house for myself.  But I’m not going to blow smoke to people, giving false hope where it isn’t warranted, and I’m certainly not going to do so just because it would help me collect a fee.  There’s right and there’s wrong, and misleading consumers is wrong. 

I know there are some lawyers in the industry who incorporate a contingent fee into their fee agreements with homeowners.  However, I know of no lawyers who charge a straight contingent fee – those who charge these fees view them as a “bonus,” something in addition to the hourly rates or monthly fees charged by that firm.  I’ve spoken out against those types of fee agreements before, so I see no reason to do so again, as that’s not the point.  The point, in my view, is that I cannot envision a scenario where a competent foreclosure defense attorney is going to charge a contingent fee, without any other fees, to defend a foreclosure case.  Hence, if anyone is encouraging you to find a lawyer who will do so, I strongly encourage you to take a moment and evaluate with whom you’re communicating.  Unfortunately, there are a lot of non-lawyers passing off advice as lawyers, and often, this advice is terribly misleading and, possibly, a criminal violation of Florida’s prohibition against the unlicensed practice of law.

Mark Stopa

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The Cause of the Foreclosure Crisis

David Bornstein of the New York Times penned a nice article today called When Lenders Won’t Listen.  Here’s the part that really jumped off the page at me…

After describing the injustices experienced by several homeowners in their experiences with lenders, a competing view was presented:

There are those of us who were raised with the idea that if you make a bargain you keep it.  If you say you will return something you have borrowed, whether it is a lawnmower from next door or a bank loan, then you do what you have said. … But then I was raised in a different America.

Unfortunately, I fear too many Americans, who remain unfamiliar with the foreclosure process, feel this way (presuming, of course, that position is from a homeowner and not a bank crony who is paid by the banks to sway public opinion by submitting such posts).  Anyway, I loved the response of David Bornstein, the author of the article, who wrote:

Not all bargains are made in good faith, however. Borrowers and lenders, it turns out, did not share equal information in many cases. … It was predatory lending that decimated inner city neighborhoods — not anything that resembled fair deals. … [M]any homeowners across the nation did understand what they were signing even if they failed to appreciate the real risks.  The difference was that the borrowers made their mistakes one house at a time, effectively as amateurs. The lenders made these mistakes as professionals, dealing with hundreds of thousands of borrowers, and they concealed the cumulative problem even as it was metastasizing. So now we have millions of homeowners who wouldn’t be in distress if not for the fact that they lost their jobs as a result of a recession that was precipitated by the very bankers who are now threatening to foreclose on them.

Wow.  What a truly awesome way to describe the impetus for the problems we’re facing. 

I urge all of you to forward that paragraph to your family, friends, and neighbors – unless, of course, you just want to forward this entire blog.  😉  From the words of a New York Times columnist, let’s make everyone realize the banks are the bad actors in the foreclosure crisis.  After all, the first step to a solution is recognizing the problem – and clearly the greed of the Wall Street Fat Cats was and is the problem.

Mark Stopa

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Foreclosure News – Mark Stopa, Matt Weidner on MSNBC

Foreclosure defense attorneys Mark Stopa and Matt Weidner appeared today, live, on The Dylan Ratigan Show.

Here is a link to the show.                   

Even with the plethora of media reports in recent months, most Florda homeowners do not defend their foreclosure cases.  That’s an absolute shame.  I really hope stories like this help homeowners realize they can’t give up – loan modifications are going to happen on a widespread basis only if homeowners fight, stand up to the banks, and advocate for change.

Mark Stopa

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Free Foreclosure Seminar

Florida Law Firms Conducting Free Foreclosure Seminar

Mark Stopa and Matt Weidner to speak to Florida homeowners about foreclosure-related issues from a defense lawyer’s perspective on November 20, 2010 in Tampa.

Two prominent foreclosure attorneys, each of whom handle several hundred foreclosure lawsuits, are joining forces to put on a free foreclosure seminar for Florida homeowners.

Mark Stopa, Esq. of Stopa Law Firm and Matthew Weidner, Esq. of The Law Offices of Matthew Weidner, P.A. are conducting the free seminar on Saturday, November 20, 2010 at the Tampa Convention Center in Tampa, Florida. Mr. Stopa and Mr. Weidner intend to speak about a myriad of foreclosure-related topics, including loan modifications, strategic default, short sales, bankruptcy, and other “hot button” foreclosure issues.

Mr. Stopa, whose Stopa Law Firm is sponsoring the event, envisions the seminar as a way for Florida homeowners to learn about foreclosure-related issues from the perspective of a foreclosure defense attorney.

“There is so much misinformation out there,” said Mr. Stopa. “I’ve seen banks hold foreclosure seminars, and even some realtors, and I’m concerned that many Florida homeowners are unaware of the legal rights they enjoy or how the foreclosure process actually works.”

“It sounds hard to believe,” continued Mr. Stopa, “but banks are often the ones that cause this misinformation by actively misleading homeowners. Many homeowners think they can trust the banks, and they don’t retain counsel, so they don’t realize what’s actually going on until it’s too late.”

Mr. Weidner views the seminar as a way for homeowners to exchange stories, support each other, and seek widespread change in the foreclosure process. “The American people have become too passive in the foreclosure crisis,” said Mr. Weidner. “This seminar gives all of us a chance to ensure that our voices are heard.”

The seminar will begin in Ballroom “A” of the Tampa Convention Center at 11:00 a.m. on Saturday, November 20, 2010 and will proceed until late afternoon. Ballroom “A” seats 700 people, and it is anticipated that homeowners from all across Florida will attend.

Stopa Law Firm has offices in Tampa, Orlando, Jacksonville, and Ft. Lauderdale and currently handles several hundred foreclosure lawsuits throughout Florida. Stopa Law Firm can be reached at 888-450-1549 or

Matt Weidner handles several hundred foreclosure foreclosure lawsuits, primarily in the Tampa/St. Pete area. He can be reached at 727-894-3159 or

Mr. Stopa and Mr. Weidner both write a blog about foreclosure-related issues. Their blogs can be found on their respective websites.

Mark Stopa

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Foreclosure courts – are they fair?

I had the opportunity today to interview with Bay News 9 in Tampa, essentially to give my opinions about the flaws with senior judges and rocket dockets.  The interview aired in Tampa and Orlando.    Here’s a link to the story, with video; the written version is below. 

Jacqueline Fell, the reporter on this story, did a really nice job showing the contrast between how judges view the foreclosure process and how foreclosure defense lawyers do.  Unfortunately, this debate isn’t going to end any time soon. 


Foreclosure courts started in Orange and Osceola counties in July.  It’s money straight from the legislature to pay separate judges to hear just foreclosure cases. It’s helping keep the court system moving.  But some have said it’s helping banks kick people out of their homes faster.

Foreclosure courts were supposed to be the answer to the back log of cases at the courthouse.  But just a few months and thousands of cases later, it’s now heavily criticized by national media and advocates for going too fast.

Administrative Circuit Judge Fred Lauten was hearing a number of cases before foreclosure court started.  He said 10,000 cases in Orange and Osceola counties have been resolved since July, and it’s not moving too quickly. 

“There are days when I’ve heard 10 cases in a hour, and there are days when I may have heard 30 cases an hour,” Lauten said.

“In a particular morning, a judge could rule on 100 foreclosures between morning session and break for lunch. The next day, the judge may only get to 25 to 30 of them. [It] depends on what the issues are on the case,” Lauten said. 

Mark Stopa, who is one of the most outspoken foreclosure defense attorneys in the state, disagrees and said the foreclosure process is broken. “What happens is these rocket dockets and senior judges and everything just goes on a fast track, especially when homeowners don’t have a lawyer,” Stopa said.

When concerns of faulty paperwork made newspaper headlines, big banks put a moratorium on foreclosures to investigate.  But things are back up and running.

Lauten said it’s not the job of the judge to find the proper lending owner and so criticism shouldn’t lie within the courts.  “Any individual judge needs to decide the case based on what they hear in the courtroom, based on the evidence that’s presented before him or her and not based on something he might read in a newspaper or see on television,” Lauten said. 

Stopa is urging for government intervention, saying homeowners aren’t given a fair chance to voice their arguments.  He also continues to stress this process is so convoluted and complex that a homeowner shouldn’t go at it alone.

Stopa said getting an attorney for a year can be less than one month’s mortgage and could mean the difference in moving out or staying in your home.

Federal lawmakers are about to take a closer look at the judicial system’s role in the foreclosure crisis.

The House Judiciary Committee will hold a hearing next Wednesday.

A Florida congressman requested a hearing on the implications accelerated foreclosure courts have had on the rights of homeowners facing foreclosure.

Mark Stopa

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“Lawyers Got it Right on the Foreclosure Mess”

This article from the Washington Post is worth the read.

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