Posts Tagged ‘Motion for Summary Judgment’
Posted on July 31st, 2012 by Mark Stopa
I’m sorry I haven’t posted much in recent days. You see, I’ve been really busy procuring summary judgments for some of my clients. No, not summary judgments of foreclosure (against my clients) … summary judgments in my clients’ favor. Summary judgments as in … case over … case dismissed … you lose, bank – do not pass go, do not foreclose, and do not collect any money. Obviously this doesn’t work every time, but as the Orders below reflect, it certainly works sometimes.
What are the arguments? How have I been able to do this? Well, take a look at the Orders, all of which are also accessible via public records:
Order Granting Summary Judgment
Order Granting Summary Judgment
Order Granting Summary Judgment
Order Granting Summary Judgment
Order Granting Summary Judgment
Order Granting Summary Judgment
Order Granting Summary Judgment
Essentially, there are two arguments … two ways (at least) I believe homeowners can argue they’re entitled to summary judgment and the outright dismissal of a foreclosure case.
The first is predicated on a topic I’ve posted about many times – a plaintiff’s obligation to prove not just its standing to foreclose, but its standing to foreclose as of the time it filed suit. There are many recent cases which have illustrated this proposition of law, reversing summary judgments of foreclosure entered for the banks when they failed to prove the requisite standing at inception. My favorite, though, is McLean v. J.P. Morgan Chase Bank, N.A., 79 So. 3d 170 (Fla. 4th DCA 2012). The reason I like McLean so much is because that case makes it clear that the remedy when a foreclosure plaintiff cannot prove standing at the inception of its lawsuit is the outright dismissal of the case – without prejudice and without leave to amend. In other words, it’s not just that a plaintiff can’t win a foreclosure lawsuit without proving standing at inception; where the plaintiff cannot meet this burden, the defendant must prevail. In the McLean court’s words:
if the evidence shows that the note was endorsed to Chase after the lawsuit was filed, then Chase had no standing at the time the complaint was filed, in which case the trial court should dismiss the instant lawsuit and Chase must file a new complaint.
Following McLean, the argument for summary judgment is rather simple. If the Note attached to the Complaint was not endorsed, and there is no assignment of mortgage in the court file, but an original note with an endorsement and/or an assignment of mortgage shows up later, then the homeowner files a motion for summary judgment asserting this chronology. If the bank goes to the summary judgment hearing without evidence that it had an endorsed note or an assignment of mortgage before suit was filed, then summary judgment for the homeowner is proper.
But wait, one might argue. Isn’t it the moving party’s burden at summary judgment to conclusively disprove the non-existence of factual disputes, i.e. to conclusively prove the bank lacked standing when it filed suit? And isn’t that a high burden? Yes and yes. However, if a homeowner proves that the note attached to the Complaint lacked an endorsement, and that there was no assignment of mortgage before the suit was filed, then the homeowner has done just that. The burden would then shift to the foreclosure plaintiff to present some evidence that it had an endorsed note and/or an assignment at the time the lawsuit was filed. If it cannot, then the homeowner should prevail.
Sound too good to be true? Read this and this. So you’re aware when you’re making these arguments, among the local judges who have granted summary judgment in my clients’ favor on this argument: Honorable Amy Williams (St. Petersburg), Honorable Lynn Tepper (Dade City) and Honorable Robert Foster (Tampa). Obviously the facts of each case can vary, but it’s worth noting that these good judges were willing to look beyond the fact that a homeowner was alleged to be in default and strove to uphold the law.
The second basis for summary judgment is predicated on the bank’s failure to comply with a condition precedent to the filing of the lawsuit. A condition precedent is just what it sounds like – something a bank must do prior to filing a lawsuit. You see, many mortgages in the cases with which I deal (and the majority of mortgages in Florida) have a provision in them, typically in paragraph 22 of the mortgage, which requires the lender provide written notice to the homeowner of any alleged default and an opportunity to cure that default prior to filing suit – what I call a “notice and cure letter.” This paragraph typically spells out certain provisions which must be set forth in the letter, often like such:
22. Acceleration; Remedies. Lender shall give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Instrument (but not prior to acceleration under Section 18 unless Applicable Law provides otherwise). The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument, foreclosure by judicial proceeding and sale of the property. The notice shall further inform the Borrower of the right to reinstate after acceleration and the right to assert in the foreclosure proceeding the non-existence of a default or any other defense of Borrower to acceleration and foreclosure.
As a nice touch, paragraph 22 of most mortgages is written in bold, creating a good argument that the parties obviously intended for that provision to carry great weight in the scope of the contract.
So how can a homeowner use this to obtain summary judgment? Read paragraph 22 closely; there are a variety of ways. The simplest is when the homeowner shows the “notice and cure” letter required by paragraph 22 was not sent, and the bank can’t prove otherwise. When that happens, then summary judgment is proper. Also, if the letter was sent, but it did not say what paragraph 22 required it to say, then summary judgment would also be proper.
To illustrate, take a look at this Order Granting Summary Judgment, where the Court explained that the “notice and cure” letter did not specify what was necessary to cure the default (as the letter indicated that additional monies in unspecified amounts were owed above and beyond that set forth in the letter, leaving the homeowners guessing as to the amounts necessary to cure the default) and the letter did not indicate that failure to cure the default would result in a “foreclosure by judicial proceeding.” Mind you, those are just a few of the ways a letter could be deficient. Just off the top of my head, here are a few things I look for when I’m evaluating if a letter complies with paragraph 22:
– Was the letter sent to the homeowner’s correct address?
– Was at least 30 days’ notice provided (bearing in mind that if the notice is sent by mail, the homeowner obviously didn’t receive the letter on the day it was dated, though that may not matter depending on how “notice” is defined in the mortgage)?
– Is there some admissible evidence from the Plaintiff that the letter was actually sent (as opposed to merely being filed in the court file by plaintiff’s counsel)?
– Does the letter specify the amount necessary to cure the default, or does it make reference to additional, unspecified charges as to the amounts owed, leaving the homeowner in the dark as to the total amount he must pay to cure the default?
– Does the letter apprise the homeowner that a “foreclosure by judicial proceeding” may result if the default is not cured, or does it tell the homeowner that it may initiate a legal action? Many of the letters I’ve seen do the latter, and not the former, and several judges in Florida have found the letter deficient on this basis. In fact, Judge Amy Williams granted a summary judgment in one of my cases based on this distinction earlier today.
– Does the letter inform the homeowner of the right to reinstate after acceleration?
– Does the letter inform the homeowner of the right to assert in the foreclosure proceeding the non-existence of a default or any other defense to acceleration and foreclosure?
In my view, even if the bank satisfied some or most of these obligations, a homeowner should still prevail in a foreclosure lawsuit if the bank didn’t comply with all of them. Yes, all of them.
But that’s crazy, you say. The homeowner is in default, so the bank should win. This paragraph 22 stuff is so technical – would a judge really care about this? Fortunately, yes. This argument may be technical, especially if a letter was sent but it did not contain all of the requisite language. However, this is what the homeowner and the bank negotiated in their contract when the mortgage was entered. The fact that the banks drafted these mortgages, and paragraph 22 is usually bolded, make it all the more appropriate to hold the banks to the terms of their own contracts.
Though homeowners need not prove prejudice to prevail on this issue, there was/is a good reason for judges to enforce the terms of paragraph 22. Quite simply, under the terms of these mortgages, every homeowner is entitled to an opportunity to cure any default before facing foreclosure on his/her home. That’s the point of the letter, and the point of paragraph 22 – to ensure the homeowner knows about the alleged default and can fix it before facing foreclosure. Where the letter didn’t comply, the homeowner is deprived of that chance, and that’s simply not fair.
If you feel bad about making this argument, don’t. Frankly, one of the reasons I love making this argument is because insurance companies have been using it to screw honest homeowners for many years. You see, when homeowners make a claim for money under an insurance policy, insurance companies often deny coverage – not because there’s no coverage, but because that’s what they do to make money – deny coverage and force the homeowners to go to court. Then, once facing a lawsuit, insurance companies love to defend that suit by complaining that the homeowner failed to comply with the conditions precedent set forth in the policy, namely submitting to a proof of loss or an EUO (examination under oath). There are many cases where courts have ruled against homeowners, and in favor of insurance companies, not because insurance company was correct in denying coverage, but because the homeowners didn’t do what they were supposed to do before filing suit. See Goldman v. State Farm Fire Gen. Ins. Co., 660 So. 2d 300 (Fla. 4th DCA 1995); Edwards v. State Farm Fla. Ins. Co., 64 So. 3d 730 (Fla. 3d DCA 2011). While I hate how insurance companies have been able to do this, I love being able to use this case law in support of my arguments in foreclosure cases. After all, Florida courts have been requiring parties to comply with conditions precedent in a contract for many years, and have consistently granted summary judgments where they failed to do so. Though some might argue otherwise, there is no reason to treat foreclosure cases any differently. Hence, where a bank didn’t comply with the terms of paragraph 22, the court should dismiss the lawsuit for failure to comply with conditions precedent.
Sound too good to be true? Read this, this, this, this, this, and this. Among the judges who have granted summary judgment, and/or dismissed a foreclosure lawsuit based on this argument, are Honorable Lynn Tepper (Dade City), Honorable Amy Williams (St. Petersburg), Honorable Robert Foster (Tampa), Honorable James Barton (Tampa), Honorable Donald Evans (Tampa), Honorable John Schaefer (Clearwater), Honorable Walter Schafer (New Port Richey), and Honorable J. Rodgers Padgett (Tampa). Again, the facts of each case may vary, but you should rest assured that there are good judges in Florida willing to follow the law even if some would argue that dismissing a foreclosure lawsuit where the homeowner hasn’t paid his mortgage is inequitable.
Mark Stopa
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Posted on December 10th, 2010 by Mark Stopa
I’m pleased to read this decision from Florida’s First District Court of Appeal. The ruling says, essentially, that when banks mislead homowners into believing their foreclosure lawsuit will be “on hold” while their loan modification is being reviewed, then obtain a Final Judgment of Foreclosure anyway, the foreclosure should not stand. That seems fair – why should a bank be able to lie and say a foreclosure is “on hold” and get a foreclosure anyway? I see two lessons to be learned here: (1) if the bank tells you your foreclosure case is “on hold” while your modification is being reviewed, don’t believe it; and (2) banks cannot obtain a foreclosure judgment if they’ve misled you in this way, so if this happened to you – fight back!
Although the court’s ruling is largely good, I’m still a bit disappointed. This sounds technical, but you may notice how the Court reversed the foreclosure but “remanded” for an evidentiary hearing on the motion to vacate the foreclosure. This means that the appellate court directed the trial court to conduct an evidentiary hearing, i.e. a hearing with live testimony, to evaluate the merits of the motion. Unfortunately, this leaves open the possibility (as crazy as it sounds) that the lower court could deny the motion even after this appellate ruling, keeping the foreclosure judgment in place.
Respectfully, this aspect of the decision is just plain wrong. The court’s decision reveals that the bank presented no evidence in opposition to the motion. In other words, it was undisputed that the bank deceived the homeowner into believing the foreclosure would be “on hold” while the modification was being reviewed – the homeowner presented an affidavit establishing that fact and the bank presented nothing in opposition.
With respect to the judges who wrote this decision, the purpose of an evidentiary hearing is for courts to resolve disputes in the facts. Where only one side presents affidavits, there are no disputes in the facts, so there is no need for an evidentiary hearing. In other words, the homeowner’s affidavit was undisputed, so thoat affidavit should have carried the day, and the motion should have been granted, without the need for an evidentiary hearing (and without any possibility that the motion could be denied).
There are legions of cases about this. I’ve seen many lawyers, even judges, misunderstand this rule of law, but it’s not that complicated. When the bank and a homeowner present affidavits with conflicting facts, the judge must conduct an evidentiary hearing, i.e. a hearing with live testimony, and decide who he believes. If only one side presents an affidavit, however, that side’s affidavit controls and there is no reason for live testimony.
For example, if the homeowner signs an affidavit that the traffic light was red, and the bank signs an affidavit saying the traffic light was green, the judges must conduct an evidentiary hearing. But if the homeowner signs an affidavit that the traffic light was red, and the bank does not present an affidavit, the judge has to conclude the traffic light was red.
It works the same way with loan modifications. If the homeowner presents an affidavit that the bank deceived them into believing the foreclosure lawsuit was “on hold,” and the bank presents no affidavit, the judge must conclude that the bank deceived the homeowner.
Mark Stopa
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Posted on December 3rd, 2010 by Mark Stopa
I’ve read and re-read the Press Release of Honorable Thomas McGrady, Chief Judge of Florida’s Sixth Judicial Circuit. I understand where Judge McGrady is coming from, and I agree with him in certain respects. In others, however, I respectfully but strongly disagree, so much so that I feel compelled to respond.
First off, I agree that many judges should be commended for “upholding their oath of office” and “following the law.” Florida’s judges are facing an unprecedented challenge vis a vis the incredible volume of foreclosure cases, and many judges have performed admirably, particularly those in the Sixth Judicial Circuit over which Judge McGrady presides. Let’s put it this way – my biggest frustration as a foreclosure defense attorney is that judges so routinely treat foreclosure lawsuits much differently than other lawsuits. With a few glaring exceptions (who I will not name but I’m sure Judge McGrady knows who I’m talking about), the judges in the Sixth Judicial Circuit generally do not act this way, and that’s certainly a good thing.
That said, I respectfully but firmly disagree with Judge McGrady’s broad-sweeping statements regarding foreclosure cases in the entire state of Florida. With all due respect, Judge, you may realize what’s happening in the Sixth Judicial Circuit, but I don’t believe you know what’s happening in other counties, so I don’t think it’s fair for you to criticize anyone who is commenting on events in other counties in Florida.
Every day, it’s a battle for foreclosure defense attorneys such as myself to ensure the most basic rights for homeowners in foreclosure cases. Many times, it feels like we aren’t just battling the banks and their lawyers, but the judges as well. Sometimes, I half-expect these judges, as a hearing concludes, to rip apart their robes and reveal a “Bank of America” T-Shirt exposed underneath. You may think that sounds absurd, but, all too often, that is the climate I’ve seen and felt as a foreclosure defense lawyer in Florida.
You obviously feel passionately that these problems are not pervasive in the Sixth Judicial Circuit, and I’m not going to argue with you about that. Instead, I’ll say this – as for the rest of Florida, you haven’t seen what I’ve seen:
– You haven’t seen a Palm Beach senior judge, at the start of a rocket docket of more than 100 summary judgment motions, assert he’s “heard it all before,” limit the arguments of homeowners and their attorneys to sixty seconds, even going so far as to count down the time as the minute concludes. You may think there aren’t “robo-judges” in Florida, but how else would you define this? Remember – those were summary judgment motions.
– You haven’t seen a senior judge in Tampa let the bank’s lawyer argue for 4 pages of transcript at a hearing on a Motion for Ssummary Judgment, then limit the defense argument to 4 lines of transcript, cut off the attorney after those four lines, and enter summary judgment without reading or looking at the opposing affidavit, written response, motion to vacate default, or motion to stay for military status (justifying his conduct in the face of due process objections by asserting it was “too little, too late” since the case had been pending for two years).
– You haven’t seen Lee County judges systematically and sua sponte require docket soundings in all foreclosure cases, immediately after the cases are filed (without clearing the date with counsel and without allowing phone appearances), and require all discovery be completed in two months, for the purpose of granting summary judgment or setting trial, even though the case is not at issue and the homeowner’s motion to dismiss has not been adjudicated.
– You haven’t been told, by a senior judge in Hernando County, that a plaintiff’s attorney can schedule a summary judgment hearing whenever he wants, without clearing the date with defense counsel (or even knowing defense counsel has a conflict), and that if defense counsel has “a problem with it,” he needs to file a motion to strike the hearing. You didn’t hear this judge assert, when defense counsel complained about the procedure, that it was his “job,” at the instruction of the Florida Supreme Court, to dispose of foreclosure cases as quickly as possible.
– You haven’t tried to set hearings on defense motions in foreclosure cases, only to have court assistants or administrators tell you that the available hearing times were reserved exclusively for plaintiffs’ motions. Of course, there is never a time set aside for defense motions – only for the banks’ motions.
– You haven’t tried to attend foreclosure hearings in Tampa (Section I, on the fifth floor) only to be told those hearings are not open for public access.
– You haven’t received dozens of conformed Orders on disputed matters, ex parte, without notice and without hearing, which most Florida judges sign routinely, even when it is obvious that these Orders are not agreed Orders, usually without giving defense counsel a chance to object. For instance, I once had a situation in Tampa where I prevailed on a motion after a hearing and the Judge entered an Order in my client’s favor, I prevailed on rehearing and the Judge entered a second Order in my client’s favor, yet, weeks later, the bank’s attorney submitted an Order, ex parte, that reversed the Court’s rulings, and the judge executed it before I received a copy in the mail or a chance to respond Respectfully, this never happens except in foreclosure cases, yet in the foreclosure context, it happens routinely.
– You haven’t had a client have a Final Judgment of Foreclosure entered against him – hours prior to the beginning of the summary judgment hearing, then have the judge explain this was her “procedure.”
– You haven’t seen the Administrative Orders in Orange, Seminole, and Lee Counties, which systematically prohibit any phone appearances in foreclosure cases, in direct contravention of Fla.R.Jud.Admin. 2.530, which requires that phone appearances be granted for all hearings of 15 minutes or less absent good cause. (It is my opinion that these Orders exist to make it harder for attorneys to defend homeowners and, hence, to cause more foreclosure cases to go uncontested).
– You haven’t witnessed senior judges routinely reschedule hearings where the defense counsel is present but plaintiff’s counsel is not, yet systematically grant the relief sought by plaintiffs when plaintiff’s counsel is present and defense counsel is not. This double-standard is, respectfully, gross, yet it happens on a regular basis throughout Florida courtrooms in foreclosure cases.
– You haven’t successfully argued that a summary judgment hearing should be stricken from the calendar, had plaintiff’s counsel cancel that hearing pursuant to the court’s Order, yet have a senior judge enter a Final Judgment of Foreclosure (even though nobody was present at the hearing) because she did not even look in the court file or the docket, so she did not see that the hearing had been cancelled.
– You haven’t watched a Brevard County judge repeatedly chastize foreclosure defense attorneys for filing motions to dismiss, arguing it was a “waste of time” and that counsel should be “trying to settle the cases,” then, when counsel responded that the motions to dismiss were sometimes granted, angrily retort that “accomplished nothing” because the bank could amend or re-file. Of course, this judge gave no explanation how it was possible to “settle” cases with banks when judges such as himself make it so apparent that he is hostile towards homeowners.
As I re-read your article, Judge, I’m troubled at the apparent insinuation that recent media reports and news stories are not based on fact. Generally speaking, they are. The media is not making up stories about foreclosure fraud and robo-signers. These stories exist because of real events that have happened to real people. Hence, the problem, in my view, is not that the media or foreclosure attorneys have misled the public into a negative perception about the judiciary, but rather that there are legitimate problems in how foreclosure cases are being handled in our courts. That sounds harsh, but, respectfully, if nothing were amiss, then there would be no news stories.
Essentially what I’m saying is this – I hear what you’re saying in your article, but I respectfully submit that your assertions, as well as your target audience, are misplaced. Instead of trying to speak to the public at large, and assure them the judiciary is fair through your words, prove the judiciary is fair through actions. Prove it by influencing other judges, throughout Florida, to handle the foreclosure crisis more like the Sixth Judicial Circuit. Convince Lee County to stop issuing those Orders setting docket soundings at the inception of a case. Tell Orange County to stop prohibiting phone appearances. Help all Florida judges realize that disputed Orders should not be entered ex parte, even in foreclosure cases. Convince all judges that it’s not fair to reschedule hearings where plaintiff’s counsel does not attend but to rule for the plaintiff when defense counsel does not appear. Suggest that the Florida Supreme Court amend the rule on lack of prosecution in foreclosure cases, so as to dismiss foreclosure lawsuits that are languishing.
As I see it, if you can use your influence to help fix the problem, you won’t feel the need to issue press releases like the one you did, as the public’s perception of the judicial system will take care of itself.
Mark Stopa
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Posted on November 17th, 2010 by Mark Stopa
I don’t know that the fact pattern in this case is going to happen very frequently, but I’m sure there are more cases out there where brokers have made misrepresentations in connection with a loan, as in this appeal. In any event, it’s certainly good to see the Second District continuing to reverse summary judgments of foreclosure!
Mark Stopa
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Posted on November 16th, 2010 by Mark Stopa
At this point, we’ve all seen stories in the media about various banks halting or suspending its foreclosure procedures in the wake of news reports about foreclosure fraud, fraudulent affidavits, and robo-signers. In my practice, these stories are just that – stories – and there is little if anything different on the “ground level” for foreclosure defense attorneys such as myself. In other words, cases proceed forward, as normal, despite the purported “moratoriums” by banks such as BofA and GMAC.
Today, though, I received this Motion_for_Temporary_Stay in a case where PNC Bank is the Plaintiff. It’s quite unique, as I can’t recall seeing a motion like it. In the motion, PNC asks that the Court stay (i.e. halt or suspend) the foreclosure lawsuit through the end of November, 2010 “to allow time for the completion of a review of its mortgage servicing procedures,” a review that PNC notes was “commenced following nationwide reports of certain industry-wide deficiencies in the preparation of affidavits submitted in foreclosure proceedings.” PNC goes on to say that it “intends to take all necessary steps to ensure that the documentation provided in connection with foreclosure proceedings, including this one, meets all applicable legal requirements.”
So … what do I make of this motion? Honestly, not much. This motion has essentially no impact on this case (or any other). Candidly, it seems silly to me that PNC would take the time to file a motion asking for a two-week stay. Did PNC really think my client was going to try to aggressively litigate this case in the next two weeks? Let’s put it this way – lots of lawsuits (in and out of the foreclosure arena) lie dormant for two weeks or more as a matter of routine. Even aggressive plaintiffs’ attorneys often have two-week periods with little activity in a particular file. Hence, in my view, PNC could have gone about this “review” process without filing anything at all (and nobody, including me, would have known any different or been affected in the slightest way). The question thus becomes – why is PNC filing these motions? Why is PNC paying its lawyers to file motions alerting attorneys like me (not to mention the public) that it is reviewing its foreclosure procedures? Is it just me, or does something smell here?
You may think I’m being overly harsh. After all, I suppose it’s a good thing that PNC is reviewing its procedures and is (apparently) trying to prosecute foreclosure cases the right way. That said, this feels to me like a public relations stunt. I mean … how much of a review can PNC really do in two weeks? And even if it finds something wrong, is it really going to admit as much (particularly on files where the foreclosures have already been concluded)?
It’s nice that PNC says it’s reviewing its foreclosure proceedings. But let me know when a bank takes the time to do a comprehensive review, makes widespread changes to the process, and/or actually admits it did something wrong – that’s when I’ll take notice. Unfortunately, a motion like this seems like nothing more than a public relations stunt.
Mark Stopa
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Posted on November 10th, 2010 by Mark Stopa
I read lots of articles in the media about foreclosure, and this one may be the best I’ve ever read. It’s a little crass, as it includes a few f-bombs, but put that aside and what you have is an author who does an incredible job of explaining the foreclosure crisis in a way that the typical American can understand.
By: Matt Taibbi, Rolling Stone
The foreclosure lawyers down in Jacksonville had warned me, but I was skeptical. They told me the state of Florida had created a special super-high-speed housing court with a specific mandate to rubber-stamp the legally dicey foreclosures by corporate mortgage pushers like Deutsche Bank and JP Morgan Chase. This “rocket docket,” as it is called in town, is presided over by retired judges who seem to have no clue about the insanely complex financial instruments they are ruling on — securitized mortgages and labyrinthine derivative deals of a type that didn’t even exist when most of them were active members of the bench. Their stated mission isn’t to decide right and wrong, but to clear cases and blast human beings out of their homes with ultimate velocity. They certainly have no incentive to penetrate the profound criminal mysteries of the great American mortgage bubble of the 2000s, perhaps the most complex Ponzi scheme in human history — an epic mountain range of corporate fraud in which Wall Street megabanks conspired first to collect huge numbers of subprime mortgages, then to unload them on unsuspecting third parties like pensions, trade unions and insurance companies (and, ultimately, you and me, as taxpayers) in the guise of AAA-rated investments. Selling lead as gold, shit as Chanel No. 5, was the essence of the booming international fraud scheme that created most all of these now-failing home mortgages.
The rocket docket wasn’t created to investigate any of that. It exists to launder the crime and bury the evidence by speeding thousands of fraudulent and predatory loans to the ends of their life cycles, so that the houses attached to them can be sold again with clean paperwork. The judges, in fact, openly admit that their primary mission is not justice but speed. One Jacksonville judge, the Honorable A.C. Soud, even told a local newspaper that his goal is to resolve 25 cases per hour. Given the way the system is rigged, that means His Honor could well be throwing one ass on the street every 2.4 minutes.
Foreclosure lawyers told me one other thing about the rocket docket. The hearings, they said, aren’t exactly public. “The judges might give you a hard time about watching,” one lawyer warned. “They’re not exactly anxious for people to know about this stuff.” Inwardly, I laughed at this — it sounded like typical activist paranoia. The notion that a judge would try to prevent any citizen, much less a member of the media, from watching an open civil hearing sounded ridiculous. Fucked-up as everyone knows the state of Florida is, it couldn’t be that bad. It isn’t Indonesia. Right?
Read the rest of the article here. It’s worth the read.
Mark Stopa
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Posted on September 21st, 2010 by Mark Stopa
In what has quickly become a national story, GMAC has suspended actions in all foreclosure cases in 23 states, including Florida.
http://www.bloomberg.com/news/2010-09-20/gmac-mortgage-halts-home-foreclosures-in-23-states-including-florida-n-y-.html
http://topics.nytimes.com/top/reference/timestopics/subjects/f/foreclosures/index.html
There is undoubtedly more to come on this huge, breaking story. At this point, though, here is what I know (from my own experience as a foreclosure defense attorney with hundreds of cases in Florida).
Within the past two weeks, I have received notices, in three different cases in which I am counsel, purporting to withdraw an affidavit that had been filed in that case. There are many similarities among these notices. Specifically, in all three cases:
1. The affidavit was used to support a motion for summary judgment (by itemizing the amounts allegedly owed on that note/mortgage).
Significantly, this is how hundreds of thousands of foreclosure cases have been “pushed through” in Florida – by individuals signing an affidavit stating the total amount owed and the Court accepting that affidavit and granting a Final Judgment of Foreclosure.
2. The affiant was Jeffrey Stephan, who purportedly signed, under oath, as a “Limited Signing Officer” for GMAC Mortgage, LLC.
3. The Note was securitized, i.e. the Plaintiff is a trust (Deutsche Bank, “as trustee,” or The Bank of New York Mellon, “as trustee”).
4. The law firm for the Plaintiff was Florida Default Law Group (one of the three firms currently under investigation by the Florida Attorney General).
5. The law firm, Florida Default, tried to withdraw Mr. Stephan’s affidavit “pursuant to Rule 4-3.3, Rules of Professional Conduct of the Rules Regulating The Florida Bar.” (If you’re not familiar with the language in that rule, click here. As you can see, this is really serious stuff. For instance, subsection (b) of the Rule discusses a lawyer’s obligations when a client engages in criminal or fraudulent conduct.)
6. The law firm, Florida Default, admits “the information in the affidavit may not have been properly verified by the affiant [Mr. Stephan].”
For a sample Affidavit and Notice, click here – GMAC Affidavit, Withdrawal
Again, I’m sure there will be more to this story in the coming days. At this point, though, here’s what I’m thinking.
Florida Default must realize the affidavits signed by Mr. Stephan are either untrue or insufficient to support summary judgment (or both). Otherwise they would not be taking the unprecedented step of withdrawing the affidavits. GMAC must realize these same things, or it wouldn’t be taking the unprecedented step of stopping all foreclosure cases.
What does that mean for the average person? Well, if you have a case pending and GMAC is the plaintiff or the servicer for the plaintiff, your case will probably be stagnant for a while. But what about those individuals who have already been foreclosed?
Rule 1.540, Fla.R.Civ.P., authorizes a party who has lost a case, e.g. via entry of Final Judgment of Foreclosure, to move to vacate the Final Judgment on the grounds of fraud. Under the circumstances, it’s hardly a stretch to say there may be thousands of people in Florida who have lost their homes as a result of fraud.
Let me put it this way:
If you are a defendant in a foreclosure case in which GMAC was or is the Plaintiff, or in which GMAC was or is the servicer, I welcome you to contact my office for a free consultation, especially if Jeffrey Stephen signed an affidavit in your case.
Even if your foreclosure case is already over, there may be grounds to vacate it.
In fact, you may be able to move back into your home (even if you’ve already been foreclosed).
If your case is still pending, I strongly urge you to look closely at the affidavits that have been filed in your case. Have they been signed by Jeffrey Stephan? Someone else with GMAC? Bear in mind – just because GMAC is not the Plaintiff does not mean it’s not the servicer, and often it’s the servicer that files affidavits.
The scariest part about all of this is that, in my view, this is just the tip of the iceberg. I strongly believe the actions that caused Florida Default to withdraw the affidavits of Jeffrey Stephan, and for GMAC to halt all foreclosure cases, are prevalent in many other cases, with many other affiants and many other banks. Consider this development yet another reason to defend your foreclosure case with a competent foreclosure defense attorney. You just never know – maybe we’ll find fraud in your case, too.
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Posted on August 20th, 2010 by Mark Stopa
Yesterday, I had an experience in court that has absolutely rocked my world, causing me to wonder:
When do judges decide who wins a foreclosure case?
Do they evaluate each case on the merits? Or do judges see “foreclosure case” and automatically decide, in their minds, that the bank is going to win (but refrain from announcing such until entry of final judgment)? In other words, is the outcome of these cases predetermined by some judges? As a zealous advocate for homeowners, I’d certainly like to think not – particularly in cases where judges see my name. After all, I’ve been in courtrooms throughout Florida for a long time now, fighting to help homeowners avoid foreclosure, and I’d like to think I’ve developed a good reputation as an aggressive foreclosure defense attorney.
My experience yesterday, though, as outlined in this Motion to DQ Judge, makes me wonder, not about myself, but about the thousands of cases in Florida where homeowners don’t have an attorney. I strongly encourage you to read the entire Motion to DQ Judge, as it’s a matter of public record, but here’s the cliff notes version.
On August 19, 2010 at 9:30, a summary judgment hearing was set on a mass-motion calendar. My clients were pro se until just a few days prior, so the documents I filed in opposition to summary judgment had not yet made it into the Court file yet. As such, the Judge thought my clients were pro se. At or before 8:15 a.m. on August 19, 2010, the Judge entered conformed copies of a Final Judgment of foreclosure even though the summary judgment hearing was not scheduled until 9:30 a.m. that day. That’s worth repeating:
The judge entered a Final Judgment of foreclosure more than an hour BEFORE the scheduled hearing.
Sounds impossible to believe, but it’s true. I learned about this, in fact, only by happenstance – my associate went to the courthouse to review the court file before the hearing, and, upon review of the court file, saw conformed copies of the Final Judgment in the file. The hearing was not set to begin for more than an hour, yet the Judge had already made copies of the executed Final Judgment, to be mailed to all parties.
If that sounds too hard to believe, click here – you’ll see the judge’s stamp on a Final Judgment of foreclosure, dated August 19, 2010. The pictures aren’t great (as they were taken by my associate via his cellphone at 8:15 a.m.), but they clearly show the judge’s stamp on a Final Judgment of foreclosure on August 19, 2010, before the summary judgment hearing had begun.
At 9:30, when the hearing began, I voiced my concern about this to the Judge. She was obviously caught off guard, but it quickly became apparent to me that her “procedure” is to make conformed copies of the Final Judgment, to be mailed to the parties, prior to the hearing (and to send out those copies to all parties immediately upon conclusion of the hearing). Essentially, she’s already made up her mind before the hearing, is holding the gavel in the air, and is ready to throw it down as soon as the hearing starts.
In my view, the obvious problem here is that the Judge is pre-judging the outcome of the case even before she’s heard what the homeowner has to say. Apparently, she’s unwilling to wait to see what happens at the hearing – she’s so convinced the bank is going to win, she’s made copies of the Final Judgment and envelopes to mail the judgment to the parties. Essentially, the axe is in the air and she’s ready to drop it as soon as the hearing begins.
I’ll let you draw your own conclusions about this. I’ve set forth mine in the Motion to DQ Judge. Suffice it to say I’m very troubled. What’s really scary is that, prior to this hearing, I had thought this Judge was one of the more friendly judges as far as foreclosure defense goes, which begs the question – if a friendly judge is doing this, what are the other judges doing?
If there are any judges reading this, particularly in Florida, then let me say this. I know the volume of cases with which you’re dealing is frustrating. But you owe it to the people whose homes you are foreclosing upon to give them all a fair chance, whether they’re pro se, represented by Stopa Law Firm, or represented by some other lawyer. Everyone is entitled to a neutral and detached judge. Respectfully, if you’re making conformed copies of a Final Judgment before a hearing even begins, that’s just not fair.
Mark Stopa
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