Posts Tagged ‘Tampa’
Posted on October 30th, 2010 by Mark Stopa
Have you ever wondered why banks sue “unknown tenant 1, unknown tenant 2, unknown spouse of John Doe, and unknown spouse of Jane Doe,” in addition to the homeowners? Sometimes, these individuals are necessary in a foreclosure case. For instance, if the property in foreclosure is a rental property, then the tenants must be sued and served with process.
Often, though, as the Tampa Tribune explains, banks and their lawyers know there is no need to sue these parties, but they do so anyway – just to pad the bill. And who receives that bill? The homeowner, of course. Incurring expenses that don’t need to be incurred just to pass on an expense to homeowners – ya gotta love the foreclosure mills.
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Posted on October 29th, 2010 by Mark Stopa
After numerous reports in recent weeks that they were going to hold banks’ feet to the fire about blighted titles resulting from faulty foreclosures, and shift the risk of loss onto the banks, title insurance companies have relented. Apparently, amidst threats from the banking industry, title insurance companies are going to keep writing title insurance policies, as if the foreclosure fraud fiasco never happened.
This is another sickening illustration how banks run the country, but let’s ignore that for a moment. From a business perspective, this is pure insanity. How can title insurance companies continue to issue title policies knowing about all the foreclosure fraud? It’s like swimming in a fresh-water lake in Florida – sure you may come out of it okay a few times, but is it really worth the risk of getting attacked by an alligator?
Next week, I’m going to post two motions I’m filing (in two separate cases) to vacate Final Judgments of Foreclosure. In one, BOA sold the house to a third party purchaser, who obtained title insurance and has been living in the house for a year but is facing an unexpected eviction/loss of ownership. Once those types of claims get filed on a regular basis (which is inevitable at this point), the title insurance industry will either: (1) collapse; or (2) be forced to change their business model (so as to shift the risk of loss from blighted titles via faulty foreclosures onto banks).
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Posted on October 27th, 2010 by Mark Stopa
As if we needed more proof that the banks’ foreclosure procedures are fundamentally flawed, Wells Fargo just announced it is re-doing affidavits in 55,000 foreclosure cases, as the original affidavits, executed by robo-signers, were flawed. Lest you think 55,000 improper foreclosure filings is not a big deal, bear in mind – that’s just what Wells Fargo is admitting, based on its own, internal investigation. If Wells Fargo is admitting to 55,000, you can bet the problem is far more widespread.
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Posted on October 27th, 2010 by Mark Stopa
One of my goals, both as a foreclosure defense attorney and the author of this blog, is to make everyone – the public, homeowners, and judges – aware of the many pitfalls with the way foreclosure cases are handled by our courts. I realize not everyone agrees with my positions on all of these issues, and that’s okay. I also realize I’m not well-liked in some circles for being so vocal in my views, and that’s okay, too. My job isn’t to be well-liked – it’s to represent homeowners as well as I possibly can (consistent with the law and my ethical obligations). Besides, meaningful change in how foreclosure lawsuits are handled is nothing but a pipe dream unless someone such as myself is willing to stand up and say “this is wrong.” Not everyone will agree 100% of the time, but I stand no chance if I don’t try.
For example, a few weeks ago, I started receiving Orders from Honorable Douglas Baird in Clearwater which systematically denied my clients’ Motions to Dismiss, without a hearing. I found this troubling, particularly since Judge Baird had not even placed me on notice that he might be ruling on such motions without a hearing. Given my overwhelming belief that this disregarded the most basic notions of due process, I felt compelled to file a Motion to Disqualify the judge.
As I’ve said before in this blog, I don’t want this to appear as if I disrespect Judge Baird. I respect him plenty. The issue is that I strongly disagree with him on these issues and, candidly, felt compelled to tell him so. As I see it, if I can’t express respectful disagreement (especially on issues for which there is no clear “right” answer), what’s the point of being a lawyer?
Anyway, Judge Baird granted the Motions to Disqualify, and in so doing, wrote me a letter. The letter said, in essence, ”I figured foreclosure defense attorneys such as yourself realized that it was my procedure to deny motions to dismiss without a hearing, but since you didn’t realize that, I’m granting the Motions to Disqualify.”
Judge Baird and I are never going to agree on some of these issues. What I respect, though, is that even though he disagrees with me, Judge Baird realized how his procedure could be construed to others as unfair, particularly when I didn’t know about it beforehand. In fact, since that happened, I have yet to receive an Order denying a Motion to Dismiss without a hearing from Judge Baird. Is that a coincidence? Maybe. That said, I just received an Order (in a different case) from Judge Baird directing me to file a written memorandum to the bank’s response to my Motion to Dismiss within five days, after which he may rule on the Motion to Dismiss without a hearing.
Respectfully, I still find this new procedure patently unfair, and I said as much in another Motion to Disqualify. As I see it, the judge should not be taking it upon himself to prosecute a lawsuit that the Plaintiff has chosen, for whatever reason, to let stagnate. In other words, it’s not a judge’s role to say “I see the Plaintiff has stopped prosecuting this case. It’s time for me to help advance the case towards judgment.” My concern about this conduct is heightened by the fact that the Plaintiff is seeking relief in the case and the Defendant is not. Where only one party is seeking relief, the judge’s attempts to advance a dormant case towards judgment, sua sponte, reveal bias.
Also, I find it unfair to be given five days “from the date of the Order to file a written response.” By the time I received the Order, that gave me three business days to respond. Respectfully, that’s unreasonable. There is no emergency here; this case has been languishing for months. For the judge to suddenly, out of the blue, require me to file a written response within three business days, failing which my client’s argument may be denied without a hearing … I find that inappropriate. What if I were on vacation? What if I were in trial? What if I were busy with other files? I have handled all types of lawsuits, from inception through trial and appeal, and I can’t ever recall being given such a short deadline. Respectfully, why should I have to drop everything to file a written memo (in three days)? Simply because the judge decided, on his own, to start prosecuting this case towards judgment?
All of that said, I can’t help but feel a bit encouraged. After all, even though I suspect he still disagrees with me, it appears that Judge Baird has changed his procedure, if only a little. Instead of denying a Motion to Dismiss outright, without a hearing (and without any warning that a ruling may be coming), he’s at least giving me a chance to file a written memorandum before he rules. I still think this is insufficient, but at least it shows that the judges are receptive to opposing viewpoints. It’s a baby step, yes, but Rome wasn’t built in a day.
Candidly, I’m don’t know how Judge Baird is going to react to this most recent Motion to Disqualify. I’m sure no judge likes receiving such a motion, and I suspect he still disagrees with my belief that his procedures are flawed. That said, I remain hopeful that he will continue to re-evaluate his stance on these issues. After all, I’ll argue all day long, as I have several times now, that it’s not a judge’s role to set a foreclosure case for hearing when the plaintiff has decided, for whatever reason, not to push the case towards judgment.
Part of my willingness to express these views in an open forum, other than my stern conviction that I’m right, is that judges are all over the map on issues such as these. To illustrate, consider the procedures of Judge Anthony Rondolino. Like Judge Baird, Judge Rondolino is a Pinellas County judge. The rules are the same for both judges, the law is the same, and the cases are generally the same. Nonetheless, Judge Rondolino often grants Motions to Dismiss, most recently via this seven-page Order (entered after a 45-minute hearing), yet Judge Baird routinely denies Motions to Dismiss, often without a hearing. When one Pinellas County judge is regularly granting well-taken Motions to Dismiss, after duly-noticed hearings, and another is regularly denying them without a hearing, there is clearly room for reasonable people – even reasonable judges – to disagree. As such, it’s up to us, as foreclosure defense attorneys, to assert our views as respectfully but persuasively as possible. Be respectful, but don’t back down, and don’t give up. Judges are paying attention, and your efforts may make a difference.
As for homeowners out there, I strongly encourage you to evaluate which foreclosure defense lawyers are willing to fight, respectfully but forcefully, and which are just “going through the motions” of a foreclosure case.
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Posted on October 27th, 2010 by Mark Stopa
I’m seeing an increasing number of reports that banks are cancelling foreclosure sales, and, candidly, I’m as perturbed about it as the judges, but for different reasons.
Judges are upset because they want to keep “pushing through” foreclosure cases so as to reduce their caseloads. I’m perturbed because these cancellations show that the entire foreclosure process is senseless.
When a foreclosure case gets to the stage that the bank is cancelling a foreclosure sale, that means the bank has convinced a judge to grant a Final Judgment of Foreclosure, and caused the homeowner to vacate possession (presumably), but won’t take title to the property. I suppose I could sort of understand, maybe, a little bit, sort of, if the property was going on the market. But if it’s just going to sit, abandoned, then what’s the point?
Judges, why rush to enter judgments, and foreclose on Florida homeowners, when banks are leaving the houses vacant (and aren’t even taking title)?
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Posted on October 25th, 2010 by Mark Stopa
Earlier today, Stopa Law Firm tried to set a hearing in a foreclosure case in which David Stern is opposing counsel. An assistant with Stern’s office informed us that all cases with Fannie Mae are “on hold” and she was “not allowed” to set a hearing.
The media has previously reported that Fannie Mae was not sending new files to Stern, but this is the first indication I’ve seen that existing cases were “on hold.” In fact, Stern’s assistant told Stopa Law Firm that she had “just received” an email in this regard.
Suffice it to say that with each passing day, the walls continue to close in around David J. Stern. I don’t want to sound like I’m picking on him, but there’s a lesson to be learned here – one can only commit fraud in the prosecution of foreclosure lawsuits for so long without penalty.
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Posted on October 23rd, 2010 by Mark Stopa
With foreclosure-related stories dominating national headlines on a daily basis, many lawyers, judges, and reporters have gotten knee-deep, if not neck-deep, in the foreclosure crisis. Sometimes, we’re so immersed in the battle, so deep in the forest, it’s easy to forget that many Floridians are unaware of the basics when it comes to foreclosure defense. Let’s take a step back, dispel some myths, and re-visit the basics:
1. As a Florida homeowner, you don’t need to leave your home unless and until the bank *wins* a foreclosure lawsuit. As such, even if you’re hopelessly behind on your mortgage, you don’t have to leave your home. Even if the bank writes you a default letter and sends it by certified mail, files suit against you, and threatens you on the phone, you don’t have to leave your home. You don’t need to leave your home unless and until the bank wins a foreclosure lawsuit against you.
To put it differently, there’s a reason I chose the name of this website – www.stayinmyhome.com.
Repeat after me: “I have the right to ‘stay in my home’ unless and until the bank wins a foreclosure lawsuit against me.”
2. As a Florida homeowner, you are entitled to have a foreclosure defense attorney represent you until the conclusion of your foreclosure lawsuit. In my view, my job as a foreclosure defense attorney is quite simple – to do whatever I can, within the law and consistent with my ethical obligations as an attorney, to try to prevent banks from winning foreclosure lawsuits against my clients. In any given case, my hope is that I can do a good enough job that the bank will offer my client a reasonable settlement offer and/or loan modifications that it otherwise would not offer. I’ve said this when I started practicing foreclosure defense and I still believe it – if you give up, you’re going to get foreclosed, but if you fight your foreclosure case, you at least give yourself a chance to avoid foreclosure.
3. Many non-lawyers think it’s easy for a bank to win a foreclosure lawsuit. That’s not necessarily so. When foreclosure defense attorneys such as myself force lawyers to prove their entitlement to foreclose in court, banks sometimes struggle to meet their burden of proof. Every case is different, and there’s no way to know for sure how any particular case will play out in court. That said, it’s possible the bank’s lawsuit will get dismissed. It’s possible, once you retain a competent and reputable foreclosure defense attorney, that the bank will be hesitant to go to court altogether. It’s possible the court will deny the bank’s motion for summary judgment and force the bank to prove its entitlement to foreclosure at trial (which would extend the duration of the foreclosure lawsuit and, hence, your time in your home). The court process, candidly, can be a bit uncertain. In my view, though, uncertainty is better than giving up and accepting foreclosure on your home.
As we’ve seen with the huge, national stories in recent weeks, nobody knows for sure what the future will bring. If you give up, foreclosure is all but set in stone. But if you defend your foreclosure lawsuit, you just may be able to stay in your home, perhaps for a long time, or even avoid foreclosure altogether.
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Posted on October 18th, 2010 by Mark Stopa
I’ve been talking about the banks’ obligation to attach documents to the affidavits upon which they rely for summary judgments in foreclosure cases for many months. My blog entry titled “Willful Blindness by Judges,” below, explains this issue in detail. To recap, Fla.R.Civ.P. 1.510(e) plainly requires “Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith,” yet Florida judges have been systematically ignoring this principle of law in foreclosure cases.
Today, it seems that these cries for change may be making an impact where it matters most – the judiciary. Kimberly Miller of the Palm Beach Post reports that Chief Judge Blanc, who oversees Palm Beach County, agrees with the need to enforce this principle of law in foreclosure cases:
“In the past, the judges weren’t requiring the attachments, now we’ve got something in the record saying there may be a problem, so now they should attach the documents. Dealing with the volume we are dealing with, we want to make sure all of our i’s are dotted and t’s crossed.”
Is it a coincidence that this report came out just days after my blog about it? Maybe. Either way, it’s nice to see that Chief Judge Blanc now recognizes this well-established principle of law. That said, I must ask – what about the tens of thousands of foreclosure cases that were “pushed through” in Palm Beach County and other counties throughout Florida with total disregard for the bank’s obligation to attach documents to their summary judgment affidavit? And what about the other counties in Florida – are all judges going to follow this principle of law from this point forward?
At this point, it’s clear that judges can’t fix this error in cases where a Final Judgment of Foreclosure has already been entered. Basically, even though judges have committed legal error in tens of thousands (if not hundreds of thousands) of foreclosure cases throughout Florida, those rulings stand, absent a timely appeal.
I am hopeful, though, that all judges throughout Florida will now recognize this principle of law and force banks to comply with it in all foreclosure cases – even uncontested cases. Respectfully, the law is the law, and it shouldn’t have taken a national foreclosure epidemic for judges to announce, via the press, that they’d start enforcing the law in all foreclosure cases.
Finally, it’s worth noting that foreclosure defense attorneys such as myself have been arguing this issue in Florida courtrooms for many months. Now that these judges are openly agreeing with the argument, perhaps they’ll learn a valuable lesson. Judges, next time a foreclosure defense attorney is arguing something at a hearing during a “rocket docket,” give him/her a chance to be heard. Respectfully, we’ve been all over this issue with attaching documents to affidavits for many months, and it’s a shame that only now are judges starting to catch on.
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Posted on October 16th, 2010 by Mark Stopa
It’s a bit awkward to openly criticize judges’ handling of foreclosure cases, especially since I appear before these judges on a regular basis. That said, unless someone is willing to tell these judges, respectfully but firmly, their decisions are wrong (with an intelligent explanation why), meaningful change in foreclosure cases is just a pipe dream.
For instance, I’ve been quite perturbed by this recent quote from W. Douglas Baird, a judge in Clearwater:
“We’re processing thousands of cases where no one is really contesting them, and in those instances, something like that just would not be brought to our attention. It’s not a situation where the courts have the ability to go through every document that’s filed and challenge and question those documents.”
I’ve been before you enough, Judge, that you know I respect you. That said, on this issue, you are mistaken. Even in a case that is uncontested, it is the judge’s obligation to ensure that the Plaintiff met its burden of proof. To illustrate, let’s remove ourselves from the foreclosure arena for a moment. Suppose you’re presiding over a trial in a negligence action. Suppose the Defendant, for whatever reason, does not attend trial, via counsel or otherwise, and puts up no opposition. Are you going to sign a Final Judgment without making the Plaintiff put on evidence? Of course not (or, at least I’d hope not). The Plaintiff’s obligation to prove its case is not eliminated simply because the Defendant is not present. Now suppose the Plaintiff puts on evidence of duty and breach but no evidence of damages, then rests its case. Are you going to sign a Final Judgment for $100,000 in damages merely because Plaintiff’s counsel asks for it in closing? Again, of course not. If there is no evidence of $100,000 in damages, you can’t award that relief – even if the relief sought is uncontested. Respectfully, these principles are not reasonably in dispute.
Now let’s evaluate this in the foreclosure context. Suppose you’re at a hearing on a Motion for Summary Judgment. The Defendant has been defaulted, did not try to defend the case, and is not present at the hearing. Judge, you’d have the public believe you essentially have no obligation to review the file before signing a Final Judgment of Foreclosure. I’m sorry, Judge, but you’re mistaken. It’s still your obligation, even in an uncontested case, to make sure the Plaintiff has met its burden of proof. The volume of cases before you does not change the Plaintiff’s burden.
Now – does anyone expect you to review the file as closely as you would if the case is contested? Of course not. But it’s still your job, as presiding judge, to ensure the Plaintiff has done what needs to be done for summary judgment to be entered.
In my view, the most obvious shortcoming in foreclosure cases – even those that are uncontested – is with respect to the affidavits the foreclosure mills use in support of summary judgment. Fla.R.Civ.P. 1.510 clearly provides:
Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.
I don’t know that I have ever seen a plaintiff comply with this rule in a single foreclosure case, yet judges such as yourself repeatedly enter summary judgment anyway. Why? The rule is clear – when the affiant references documents in an affidavit, those papers must be attached. In foreclosure cases, the affiant always references documents (because the affiant never has personal knowledge of the amounts owed and has to rely on a life of loan history), yet these documents are never attached. This is a fatal flaw under the plain language of the rule. In fact, there are many appellate court decisions that reverse summary judgment on these facts. (If you disagree, Judge, then please talk to your colleague, Judge Rondolino. He routinely cites these cases at hearings.)
Judge, I don’t expect you to pore over every page in the court file before entering summary judgment in an uncontested case. But it takes two seconds to look at the Plaintiff’s Affidavit in Support of Summary Judgment and see if any documents are attached. Heck, that’s something an intern or judicial assistant could do. If no documents are attached, and the affidavit references such documents (as they invariably all do), then summary judgment should not be entered, even in an uncontested case.
Despite all of this, you told the media “[w]e’re processing thousands of cases where no one is really contesting them, and in those instances, something like that just would not be brought to our attention. It’s not a situation where the courts have the ability to go through every document that’s filed and challenge and question those documents.”
I respectfully but firmly disagree, Judge. You don’t have to look at “every document that’s filed” to realize summary judgment is improper. All you had to do was look at the only document the Plaintiffs rely upon – the affidavit. If you had, and you followed the plain language of Rule 1.510, you’d deny summary judgment, even in uncontested cases. To act otherwise – and to tell the media otherwise – is to close your eyes to the glaring problems in foreclosure cases and to enter final judgment anyway (what the law calls “willful blindness,” hence the title of this blog).
The unfortunate irony here, Judge, is that the foreclosure crisis has spun out of control in recent weeks because of these affidavits. Robo-signers executed these affidavits by the thousands without having personal knowledge of their contents, as required. What’s most unfortunate about this, in my view, is this could have – and should have – been prevented. After all, the very purpose of the rule requiring the documents be attached is to restore credibility to the filings when the affiant lacks personal knowledge. Unfortunately, too many judges allowed foreclosures without this required credibility, and now the situation has blown up in our faces. (A question worth pondering – would the fraudulent affidavits be as big of a controversy if the requisite documents were attached?)
I’m not saying this is your fault. However, I firmly believe that if judges applied the law and stopped bending over backwards to help the foreclosure mills “push through” cases the problems we’re now facing would be far less pervasive. Even if you disagree, it’s time for you to stop acting like you have no obligation to review files. You do, even in uncontested cases. Also, it’s also time for you to stop systematically denying motions to dimiss without a hearing. This causes reasonable people, including myself (and, yes, even other judges with whom I’ve spoken) to question whether you are fair and impartial. After all, when you’re openly telling the media that you don’t review files, it’s not unfair for me to wonder (as in this Motion to DQ Judge) whether you’re reviewing my clients’ files before you deny their motions to dismiss, via a form Order, without a hearing.
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Posted on October 15th, 2010 by Mark Stopa
The Associated Press just wrote a terrific story that highlights the extent of the foreclosure problems we’re facing, but from a little different perspective.
So You Bought a Foreclosed Home – Now What?
If you’re facing foreclosure, you may think this issue doesn’t pertain to you, as you’re in no position to go out and buy a foreclosed property. I totally disagree. This issue impacts all of us. As the article reflects, and as I’ve been saying for months:
purchasers of properties at a foreclosure sale have legitimate reasons to be concerned about the legitimacy of the title they’re obtaining.
Everyone is realizing this, and it’s undoubtedly causing would-be purchasers not to go to courthouse auctions and buy. Well, guess what? If people aren’t buying properties at a foreclosure sale, what’s the point of the sale? Essentially, there is none – and there’s the rub. A sale is supposed to be more than just a rubber-stamp on a title to a bank. A sale is supposed to be a way to gauge the fair market value of a property, so as to: (1) ensure the homeowner collects the surplus (the difference between the sale price and the amount of the final judgment; or (2) ensure the extent of the homeowner’s deficiency (the difference between the amount of the final judgment and the sale price) is minimized.
The more I think about it, the more I’m convinced that all of these sales that are being conducted where there are title problems, the homeowners have legitimate grounds to object to the sale. After all, their chances of having anyone bid fair market value for a home (and getting a surplus or minimizing their exposure for a deficiency judgment) are reduced when everyone questions the legitimacy of title acquired by a foreclosure sale.
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