Posts Tagged ‘foreclosure defense lawyer Orlando’
Posted on January 25th, 2011 by Mark Stopa
It’s sometimes difficult to explain, in layman’s terms, how a foreclosure defense attorney can assist homeowners who are behind on their mortgage. Sure, most Americans are aware, at this point, how attorneys such as myself force the bank that is suing to prove it is the “right” bank, i.e. force the bank to prove it owns and holds the original note and mortgage. As I see it, though, a better explanation of how I help my clients comes through an understanding of the Florida Rules of Civil Procedure.
Generally speaking, there are only two ways a bank can “win” a foreclosure lawsuit in Florida (as required to foreclose on a Florida homeowner). First, the bank can prevail on a motion for summary judgment. This is when there are no material facts in dispute and the bank is entitled to judgment as a matter of law. Nearly 100% of foreclosure cases are adjudicated this way, typically after a bank presents an affidavit supporting its position and the homeowner presents no conflicting affidavits.
Second, the bank can win at trial.
When a competent foreclosure defense attorney handles a file, it is often, quite candidly, not terribly difficult to defeat a motion for summary judgment brought by the bank. Yes, some cases are harder to defend than others, and no, I’m not saying summary judgment is impossible. However, in my experience, most homeowners have sufficient defenses to preclude a foreclosure via a motion for summary judgment. To understand why that is so, try not to get bogged down in legal jargon. Instead, think about it like this. For a bank to obtain a foreclosure via summary judgment, the judge must accept all facts asserted by the homeowner as true (even if the bank disagrees with those facts) and, based on the homeowner’s version of the evidence, must conclude whether the bank is entitled to a foreclosure. See Fla.R.Civ.P. 1.510.
To explain how this standard works, I like to use a traffic light analogy. Suppose it’s a personal injury case and the plaintiff’s lawyers line up 10 witnesses, all of whom say the traffic light was red at the time of the accident. Now suppose the defendant presents one witness, himself, who says the light was green. Even though the plaintiff has many more witnesses, the judge is required, at summary judgment, to accept what the defendant says – the light was green – and to rule accordingly. This is a high legal standard, and it’s a big reason why it’s so hard for banks to obtain a foreclosure via summary judgment when the homeowner retains counsel. Essentially, the homeowner just needs to find one material fact in the bank’s case with which it disagrees to prevent summary judgment. When that happens, the bank is left with just one option – trial.
If you’ve watched Law and Order or a similar lawyer show on TV, a trial may not seem like a big deal. Let me assure you – trials don’t happen like you see on TV. In fact, in my experience, banks don’t like to go to trial in foreclosure cases, even if that’s the only way they can get a foreclosure. I won’t speculate about banks’ motives too much, but I strongly suspect the banks are afraid of losing at trial and the precedent/fallout that would ensue. With media coverage of foreclosure cases how it is, can you imagine if a big bank like Bank of America went to trial against a homeowner who hadn’t paid his/her mortgage in two years and lost? Homeowners throughout the country would be emboldened not to pay their mortgages and to push cases to trial. To put it differently (and forgive me if this sounds sexist, but it’s a comparison with which I can related since I have a little sister) … going to trial for a bank is like a big brother getting into a fight with his little sister. Why do it? If you win, you’re supposed to win – you’re bigger, and she’s a girl. If you lose, then, good grief! You lost a fight to a girl! Rather than risking that humiliation, isn’t it better to avoid the possibility altogether?
Hence, there are only two ways a bank can “win” a foreclosure case – summary judgment and trial – but summary judgment is hard to get and banks typically don’t want trials. So what happens? Foreclosure cases often languish. Banks file them, but when homeowners defend those cases with an experienced foreclosure attorney, the cases often progress at a slow rate. The banks’ lawyers have so many other cases, it’s easy for them to ignore these cases and work on others.
Personally, I don’t see anything wrong with this dynamic. When I represent plaintiffs in lawsuits against insurance companies, I have to work to push the case towards judgment, and if I don’t, the case languishes. Do you think anybody is helping me move the case forward if I don’t work on that file? Heck no! That’s just how it works – when you’re the plaintiff, and you want a remedy through the court system, it’s your burden to prosecute your case towards judgment; if you don’t, you don’t get that remedy. Foreclosure cases operate the same way – the banks want relief, so they must prosecute their cases towards judgment; if they don’t, then they don’t get a foreclosure (and the homeowner remains in his/her home while the case is pending).
Many Florida judges don’t like this dynamic. They see cases languishing and, in an ongoing effort to reduce the backlog of cases from their docket, they sometimes take actions to advance cases towards judgment. Lee County in particular is notorious for this, setting cases for trial right after they are filed. I’ve already expressed my dislike for judges acting in this manner at length, so instead of rehashing that, let’s evaluate this issue from a procedural perspective.
Under established law, a case can only be set for trial (in a foreclosure lawsuit or any other type of case) if it is “at issue.” This means, in layman’s terms, that all motions to dismiss filed by the homeowner have been denied and the homeowner has filed an Answer to the Complaint. (It’s more complicated than that, but that’s the simple explanation.) See Fla.R.Civ.P. 1.440.
If a foreclosure case has not progressed to that point, i.e. where it is “at issue,” yet the judge sets it for trial anyway, then the judge is committing legal error that should be reversed on appeal. It may seem hard to believe, but if a judge sets a foreclosure lawsuit for trial prematurely, and the bank wins at trial, the appellate court would/should reverse that foreclosure. It doesn’t matter if, substantively, the bank was perfectly entitled to foreclosure – from a procedural perspective, the trial was set prematurely and should not have taken place. See Bennett v. Continental Chemicals, Inc., 492 So. 2d 724 (Fla. 1st DCA 1986) (en banc); Precision Constructors, Inc. v. Valtec Construction Corp., 825 So. 2d 1062 (Fla. 3d DCA 2002).
If you’re defending a foreclosure lawsuit and the bank or the judge is trying to set it for trial prematurely, make sure you cite Rule 1.440, Bennett, and Precision Constructors. Respectfully let the judge know that he/she will be reversed on appeal, even if the bank is otherwise entitled to foreclosure. That may sound harsh, but these rules of procedure are in place for a reason, and it’s incumbent on everyone to follow these rules in all lawsuits, including foreclosure cases.
Mark Stopa
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Posted on November 21st, 2010 by Mark Stopa
Thank you to everyone who attended yesterday’s foreclosure seminar at the Tampa Convention Center. To Matt Weidner, thank you for your terrific presentation and leadership in the foreclosure fight. To my terrific staff, thanks for giving up your Saturday; it couldn’t have happened without you. And to the hundreds of Florida homeowners who attended, thank you for your interest, your passion, and your willingness to come out from the shadows and fight back.
Homeowners, please keep spreading the word about the issues we discussed. We’ve come a long way in the foreclosure fight, but most Floridians still don’t realize the rights they enjoy as homeowners or how the foreclosure process actually works. Worse yet, many are still hiding in shame. We just can’t let that happen any longer – if anything, the banks are the ones who should be hiding in shame. Please help educate your friends and neighbors – not just about the process, but to hold their heads high as they fight for their rights.
If you couldn’t attend, Stopa Law Firm will be sponsoring a similar seminar in the future, so be on the lookout for that. And thanks again to all involved.
Mark Stopa
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Posted on November 18th, 2010 by Mark Stopa
Today’s Washington Post reports that Citimortgage has admitted mistakes in its foreclosure filings. Unfortunately, news like this has become so common that it’s easy to say “ho, hum,” but we must not fall into that trap. For instance, here’s a quote that is buried in the story but, upon reflection, is really, really disturbing:
“to assure that these affidavits are substantively correct and properly executed, Citi expects that affidavits executed prior to the fall of 2009 will need to be refiled”
Think about that for a minute. As I read that, Citi is admitting that all affidavits executed in and before the Summer of 2009 must be re-filed, apparently because every such affidavit was done incorrectly. You may think that’s a good thing, but ask yourself this – what about all of the homes Citi foreclosed on from before the Fall of 2009?
I can’t speak for Citi, but I can vitually guarantee you that Citi isn’t going to unwind any of those foreclosures. The new affidavits wil only be filed in the cases that aren’t already over. For those that lost their homes to improper evidence, there is, apparently, no remedy.
Here’s the entire story…
http://voices.washingtonpost.com/political-economy/2010/11/citimortgage_admits_to_foreclo.html
Citigroup, which for almost two months has claimed its process for preparing foreclosure affidavits was sound, is reviewing about 14,000 documents, including 4,000 that may have been notarized improperly, a company official said in written testimony to Congress to be delivered Thursday.
Unlike other large mortgage servicers it competes with, Citi had not frozen foreclosures and had repeatedly declined to publicly discuss any internal reviews it was conducting. Harold Lewis, managing director of CitiMortgage, said in the written remarks that 10,000 of the 14,000 documents being reviewed are for judicial foreclosures.
The purpose of the review is “to assure that these affidavits are substantively correct and properly executed. Citi expects that affidavits executed prior to the fall of 2009 will need to be refiled,” Lewis said. The other 4,000 documents that are being reviewed were prepared at its Dallas processing center and “may not have been signed in the presence of a notary, to assure that these affidavits are substantively correct and properly executed.” Lewis said these affidavits were also be refiled.
Lewis and other representatives from large mortgage servicers-Bank of America, J.P. Morgan Chase, Ally Financial-will take questions from members of Congress Thursday starting at 10 a.m. at a House Financial Services Committee hearing. Lewis said that Citibank had been taking steps to improve its foreclosure practices since the fall of 2009.
In responding to questions about the robo-signing problems at other servicers, Citi has previously said that it has “have strong training to ensure that appropriate employees are fully aware of the proper procedures.”
Mark Stopa
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Posted on November 10th, 2010 by Mark Stopa
As a foreclosure defense attorney, I overwhelmingly prefer to attend hearings in person. There’s something to be said for getting to look the judge in the eye as I make my argument, and I like being able to hand the judge copies of documents and case law when necessary. Basically, all else equal, I prefer attending hearings in person rather than by phone.
That said, there are instances when phone appearances make sense. Some hearings, quite candidly, are less significant than others, and for such hearings, it often makes sense to appear by phone. For one, it’s certainly more convenient. More importantly, the unfortunate reality is that, as a foreclosure defense attorney, many of my clients don’t have a lot of money. When clients are operating with a limited budget, I try to make that budget stretch as far as possible, and sometimes that means attending less significant hearings by phone.
Fortunately, the Florida Supreme Court has envoked a Rule of Judicial Administration – Rule 2.530(c) – that facilitates phone appearances. The rule says, essentially, that for all hearings of 15 minutes or less, the judge “shall” allow phone attendance “absent good cause.” In my experience, requests to appear by phone are routinely granted in most Florida counties. Essentially, there is almost never “good cause” to preclude a phone appearance, particularly if a hearing is brief and does not require the presentation of evidence.
Unfortunately, a few counties in Florida, including Orange and Lee, have issued administrative orders that preclude phone appearances in all foreclosure cases. Respectfully, I find this procedure out of line. As I see it, the chief judges of Orange and Lee (and any other counties that have issued such an administrative order) cannot create a rule that contravenes Rule 2.530. The Florida Supreme Court has created Rule 2.530 pursuant to its exclusive authority to envoke rules of practice and procedure in all Florida courts, an authority expressly granted to it by Article V, Section II of the Florida Constitution. It’s not within the powers of a circuit court judge, even a chief judge, to apply a blanket rule that contravenes Rule 2.530.
In a recent case, I decided to push this argument. I filed a motion to attend a hearing by phone in Orange County, which, in light of the administrative order, the judge denied. However, I then filed a motion to stay the hearing pending appellate review, which the judge granted. I then filed this Petition for Writ of Certiorari or Mandamus, laying out the argument I just made, above, with some legal authority in support.
You may not think this is earth-shattering news, but check out footnote three of the Petition. Candidly, I’m concerned that some judges issue administrative orders precluding phone appearances with the specific intent of making it harder for foreclosure defense attorneys to represent clients, making it easier for them to “push through” foreclosure cases. That sounds harsh, but some of these judges actually set hearings on their own, without clearing the date, and order me to personally attend, even knowing I’m out of town. With all due respect, that’s wrong. And respectfully, I’m not going to be bullied into foregoing legal representation of clients who need my help. Hence, I consider this Petition for Writ of Certiorari or Mandamus my most recent attempt at curbing the perverse judicial procedures that permeate foreclosure cases in Florida. For me, it’s not just an issue of appearing by phone – it’s forcing judges to follow the law and ensuring my ability to represent homeowners in all foreclosure cases.
Mark Stopa
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Posted on November 8th, 2010 by Mark Stopa
It’s bad enough that the loan modification process is not helping homeowners as intended, a failure I’ve reported in this blog many times. Unfortunately, it’s even worse than that. As numerous media outlets are now reporting, and as I’ve seen in my daily practice as a foreclosure defense attorney in Florida, temporary loan modifications often *cause* a homeowner who was otherwise not behind on mortgage payments to go into foreclosure.
The New York Times has a real-life story, but here’s the simplified version:
The homeowner is making monthly mortgage payments as required, but finances are tight. The homeowner asks the bank for a loan modification. The bank says it needs to review the homeowner’s financial information to make a decision, but agrees to a temporary modification while the application is being reviewed. The homeowner’s payments are temporarily reduced from $1,500/month to $1,000, pending the review process, which the bank says should take a couple of months. The homeowner diligently makes the $1,000 payments each month and anxiously awaits approval on the permanent modification. The process seems simple enough, so the homeowner is optimistic.
Two months turn into six, then eight, then ten. The homeowner keep making the required $1,000/month payments, never imagining it would drag on this long. The homeowner keeps calling, and the bank keeps saying the permanent modification is being reviewed. Then, bam. The bank rejects the permanent modification, without explanation (or a flimsy explanation that shouldn’t have taken 10 months to disclose). But instead of telling the homeowner to resume the $1,500/month payments, the bank requires the homeowner pay all of the arrearages. In other words, the $500/month that the homeowner didn’t have to pay while the modification was being reviewed – those monies need to be paid, all at once, in one lump-sum, plus interest, late fees, attorneys’ fees, etc. When the homeowner can’t/doesn’t pay that $7,500 lump sum (10 months x $500/month = $5,000, plus $2,500 estimated interest, late fees, etc.), the bank pursues foreclosure.
This sounds impossible to believe, but this phenemonon is happening to homeowners all across the country. Please, don’t fall prey to such “gotcha” tactics.” Retain a foreclosure defense attorney to assist you through this process.
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Posted on November 2nd, 2010 by Mark Stopa
This article by Kimberly Miller of the Palm Beach Post explains, in layman’s terms, how the judiciary views foreclosure. For most judges, it’s all a numbers game – how quickly the judges can “clear” foreclosure cases. As the article reflects, there is still a huge backlog of foreclosure cases in Florida courts, but senior judges and “rocket dockets” are chipping away at the backlog.
This is a disturbing trend, one that should make all homeowners facing foreclosure realize the need for a competent foreclosure defense attorney. Quite simply, without an attorney, your case might be lumped in with all the other cases that judges are all too quick to try to “clear” from their dockets.
Here’s the entire article:
Florida’s courts cleared 65,830 foreclosure cases in a three-month period beginning July 1, with 71 percent being decided in quickie hearings before the judge sometimes called “rocket dockets.” According to a report released today by the Office of State Courts Administration, only 23 foreclosure cases went to trial statewide during the same time period.
The report, the first of its kind, was conducted between July 1 and Sept. 30 to measure how Florida’s 20 circuit courts are using a $6 million state allotment awarded over the summer to hire additional judges and staff to handle foreclosures. Despite clearing 65,830 cases, 25 percent of which were dismissed for reasons that could include a completed short sale or deed-in-lieu of foreclosure agreement, the report found a backlog of 396,509 cases are still clogging Florida courts.
Lawmakers awarded the $6 million, in part, hoping that getting homes back onto the market will hasten an economic recovery. “We needed a way to see how we are doing and identify reasons for delays or slowdowns,” said Kris Slayden, who oversees foreclosures for the Office of State Courts Administration. “This shows we are doing what we said we would do, reducing the backlog.”
Palm Beach County’s foreclosure court cleared the most cases in the state during the three-month period, wiping 9,846 suits from its system. About 70 percent of those cases were decided via summary judgment, with just one trial being held, according to the report.
The concern among foreclosure defense attorneys has been that some senior judges hired with the state money would rush through foreclosures using summary judgments. A summary judgment is held in lieu of a traditional trial when the facts of the case are considered irrefutable. They are often allowed when the borrower is not contesting the foreclosure or represented by an attorney, having possibly walked away from the home. “Summary judgment is a shortcut that should rarely be used,” said foreclosure defense attorney Tom Ice, of the Royal Palm Beach-based Ice Legal. “In foreclosure cases they are routinely filed and routinely granted. That’s a disturbing trend that there are so few trials.”
Ice said it’s even more of a concern in light of recent revelations that some foreclosure affidavits, which are used in summary judgments, are flawed or fraudulent. Beginning in late September, major lenders including Bank of America, Ally Financial, Inc., and JP Morgan Chase, acknowledged that some of their foreclosure paperwork would need to be re-filed. “All you need is one issue of fact, such as dispute over note ownership, to get a trial,” Ice said.
Palm Beach County Judge John J. Hoy, who took over foreclosure court today, refused to comment for this story. Hoy replaces Judge Meenu Sasser, who is now hearing civil cases.
Palm Beach County, which is the 15th Circuit Court, received $646,540 of the $6 million, using it to hire two senior judges and six case managers to tackle foreclosures. The Palm Beach County Clerk and Comptroller’s Office received $403,000 out of a $3.6 million statewide allowance given to clerks’ offices to handle foreclosure paperwork.
Today’s report showed Palm Beach County had 46,438 foreclosures backlogged as of June 30. That fell to 36,592 as of Sept. 30.
The 19th Circuit Court, which includes Martin and St. Lucie counties, received $212,729 to hire senior judges, case managers and administrative assistants. As of Sept. 30, it had cleared 951 cases, but still had a backlog of 18,110.
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Posted on October 28th, 2010 by Mark Stopa
Several days ago, I blogged about the flawed procedures being utilized in foreclosure cases in Brevard County, precipitating this Motion to Disqualify Judge. Since filing that motion, I’ve continued to reflect on the issues addressed therein, and I remain comfortable with my position. In my eyes, the issue boils down to one inescapable conclusion:
Judges cannot prosecute foreclosure cases!
Today, the Brevard judge agreed with my argument and issued this Order Granting Motion to Disqualify. The Order is quite vanilla, but it contains a phrase that I find telling. The judge notes that “from Defendant’s perspective,” the Motion to Disqualify is legally sufficient and requires disqualification. The key phrase, of course, is ”the Defendant’s perspective.”
From the Defendant’s perspective, when a judge takes it upon him or herself to set a hearing in a case that the Plaintiff has chosen, for whatever reason, to let stagnate, the judge is siding with the Plaintiff. A judge may argue (and may truly believe), that all he/she is doing is advancing the case forward, without bias towards one party or the other with regard to the hearing being scheduled. Particularly in foreclosure cases, though, it’s the mere advancement of the case, at the judge’s initiative, that reflects the bias. After all, the Plaintiff is seeking relief in the case; the Defendant is not. Hence, when the judge is advancing the case, sua sponte, the judge is necessarily helping one party to the detriment of the other.
Let’s put it this way … If a case is languishing, whose job is it to advance the case forward, towards judgment? The Plaintiff. Undoubtedly, the Defendant has no obligation in this regard. I’m not saying the Defendant can stall; I’m saying the Defendant has no obligation to accelerate the case if the Plaintiff lets it stagnate.
Some people reading this may argue I’m a slimy foreclosure defense attorney who’s just trying to delay foreclosure lawsuits. Not so. My concern is ensuring the system is fair for my clients. Lest you doubt that a judge setting a hearing on his/her own initiative is unfair, consider this:
I’ve represented Plaintiffs and Defendants in hundreds if not thousands of lawsuits throughout my career – all types of lawsuits, not just foreclosure cases. Other than recently (in the context of foreclosure cases), I can’t ever recall a judge setting a hearing on his/her own. It’s just not done. For example, I’ve filed dozens of lawsuits for Plaintiffs against insurance companies, seeking monetary relief. I think most of my litigation clients would tell you that I litigate those cases aggressively, but, on occasion, for one reason or another, some of those lawsuits have languished a bit. When that happens, do you think there’s ever been a time when a judge took it upon him or herself to set a hearing? Of course not. Do you think the judge ever tells the insurance company or its lawyer that they need to accelerate the case? Yeah, right. Never happens. As the Plaintiff’s lawyer, if I don’t set a hearing, the hearing never gets set, and the case stagnates. That’s just how it works. The insurance company has no obligation to advance the case forward (and risk entry of an adverse judgment sooner), nor would I expect them to. My client wants affirmative relief through the court system; it’s my duty to move the case forward to obtain that relief.
My point, essentially, is this – when this is how it works in litigation files, why should foreclosure cases be any different? Because the homeowner (allegedly) has not paid? Because the judge perceives the Plaintiff will win? Because the Judge has a lot of cases on his/her docket and wants to remove the backlog? Respectfully, that’s the rub. If a judge is setting a hearing on his/her own initiative, for any of those reasons, it reflects a bias that should not be present among the judiciary. Judges should treat my clients just like they treat insurance companies when I represent Plaintiffs – without any preconceived notions of who is going to win the case and without any agenda as to how quickly the case moves forward.
I can totally understand the judges’ desire to eliminate the high volume of cases with which they are dealing. The answer, though, isn’t for judges to exceed their role as neutral arbiter and act as prosecutor. The solution is to change to the rule on lack of prosecution.
Fla.R.Civ.P. 1.420(e) is currently set up in such a way that it’s virtually impossible, as a practical matter, for a case to be dismissed for lack of prosecution. For such a dismissal to be entered, (1) there can be no activity in the court file at all for 10 consecutive months; (2) the Plaintiff must be notified of the lack of record activity; (3) there must be no record activity in the ensuing 60 days; (4) an interested party must seek dismissal; and (5) there can be no “good cause” to prevent dismissal. Under this standard, cases can languish forever. I can file a Notice that I’m going on vacation for Christmas, and the 10-month clock starts all over again. Respectfully,that’s crazy, particularly vis a vis foreclosure cases.
If the judiciary wants cases to move quicker, it’s time for the Florida Supreme Court to implement an amendment to this rule. How about something like … if six months have passed with no record activity in a foreclosure case, then, boom – automatic dismissal. If that sounds too harsh, then give the Plaintiff a chance to prove good cause after six months. The point isn’t how the rule is amended; the point is that some amendment is necessary to ensure that foreclosure cases progress at the pace the judiciary desires. In other words, what I’m suggesting is this:
Judges, don’t prosecute foreclosure cases just because the bank has let those cases languish. Instead, convince the Florida Supreme Court to amend Rule 1.420 so it’s not so impossible to dismiss a foreclosure lawsuit for lack of prosecution.
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