Archive for November, 2010
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 19th, 2010 by Mark Stopa
I’m often critical of Florida judges on this blog, so let’s give credit where it’s due. Judge Susan Gardner is absolutely correct in her suspicion that the fees being charged for service of process in foreclosure cases are grossly excessive, and I applaud her for caring enough to do something about it. Same to Shannon Behnken for reporting the story.
Let’s put it this way. I’ve litigated cases for a decade, including countless cases for plaintiffs. I can’t ever recall spending more than $100 for service of process on a defendant. Even when the defendant is out of town, out of state, and/or difficult to find, there’s no way it costs several hundred dollars to effectuate service, much less thousands of dollars. Typically, service is around $40-$50. That’s it. Sometimes, if it’s tougher to obtain service, the bill can approach $100. But $800? $1,000? That’s absurd. If a process tried charging me that much, I’d find a new process server.
The banks and their lawyers would apparently have you believe that service is more expensive in foreclosure cases because it’s important to ensure service on all parties who may have an interest in the property. Let’s be clear. Yes, it’s important to ensure service in foreclosure cases. But it’s important to ensure service in all cases. After all, if a defendant is important enough to be named a defendant, he/she is important enough to be served. Hence, the fact that these are foreclosure cases does not justify increasing the bill for service of process five-fold or ten-fold. It’s like a grocery store trying to justify charging $12.99 for a gallon of milk when everyone else in town is charging $3.99 – you can try, but you just can’t justify it.
DADE CITY – Pasco County Circuit Judge Susan Gardner decided to take a closer look at her foreclosure cases after law firms were accused recently of overbilling and forging documents.
She doesn’t like what she’s finding – a mountain of fees to serve notice of foreclosure lawsuits to homeowners and to people who don’t exist.
“Routinely, routinely, I’m seeing charges of $1,600, $1,800, $1,000, $800, any of those are ridiculous, and there had better be a good reason for it,” Gardner said, noting that these fees should typically be $45 to a couple hundred bucks.
The judge chose 12 random files and said she found 11 of them had what she says appear to be inflated charges to serve homeowners with lawsuits. Some of the lawyers who submitted affidavits to the court saying the fees are “reasonable” often sign their names and bar numbers in an illegible scribble, court records show.
“I used to think this was just sloppy work, but I truly have begun to wonder if it’s not concealment,” Gardner said.
The files in question involve two of the law firms that are currently under investigation by the Florida Attorney General’s Office for submitting fabricated or misleading documents in foreclosure cases.
Gardner plastered files with adhesive notes detailing her concerns and drew unhappy faces on beside fees. She issued orders this week requiring five lawyers from the firms to appear in court early next month and explain the fees and signatures. If they fail to show up, they could be arrested.
“I don’t want to throw anybody in jail, but I’m getting really angry, and I’m not going to tolerate it anymore,” Gardner said. “I want some answers. This stuff isn’t getting through on my watch.”
At least two of the cases Gardner flagged involve Florida Default Law Group in Tampa, which is under state investigation.
Consider this case.
The process server, Firefly Legal, served two named defendants in Land O’ Lakes in August 2009. The invoice reflects that both defendants were served, but it also included charges for two unknown spouses and for two unknown tenants, even though none of those four people were found, according to court documents.
Three days later, the invoice shows, the process server attempted to serve the main defendants and unknown spouses again – this time in Indiana.
The total bill was $1,633.50. Gardner says a reasonable fee for this case would be $175.
“Now why would they do this?” Gardner said. “It clearly notes they had already been served.”
Firefly representatives told the Tribune the dates on the invoice are internal notations and not reflective of actual service and that the company followed its policy of serving only people its client directed them to serve.
The company said that “to suggest that there is anything improper about the service attempts that our agents made or any related charges in this particular matter is simply wrong.”
Florida Default Law Group issued a statement to the Tribune and said the firm will submit a response to Gardner soon, “with supporting documentation.”
“The costs charged to and paid by the firm are included in the affidavits of attorneys’ fees and costs and are supported by an attached invoice from the process server,” Ronald R. Wolfe, managing partner for the firm, said in a statement.
The type of fees Gardner is questioning is at the center of growing debate over a controversial method some of Florida’s major foreclosure law firms use to notify homeowners of lawsuits.
Two former employees of the law offices of David J. Stern recently testified to the attorney general’s office that the firm consistently inflates bills by creating summonses for homeowners, unknown spouses, unknown tenants and others.
Representatives from the law firms and process servers who use this method say this isn’t done to inflate bills but to make sure anyone with an interest in the property is served, as required to get clear title. They also say this is done to save time and money in the long run.
Others, such as Henry P. Trawick Jr., a Sarasota lawyer, think it’s not right to routinely serve people who don’t exist. Trawick is the author of Florida’s Practice and Procedure, a textbook used by lawyers.
Part of the problem is that the large firms handling foreclosures for lenders have so many files and speed through them, Trawick said. Lawyers should take more time to locate the proper parties before summonses are issued, he said.
“It’s just totally unexplainable to me how they’ve been able to get away with this sloppiness for so long,” Trawick said.
Homeowners who get loan modifications must pay the service fees to get their houses back, but even when the homes are lost to foreclosure, the fees are added to the homeowners’ judgments. That means they may have to pay them later. Otherwise, taxpayers may foot the bill through lender bailouts, Gardner said.
The Tampa Tribune last month reviewed some internal billing records from one of the companies Stern uses to deliver lawsuits, Gissen & Zawyer Process Service in Miami. In one case, $5,000 was billed for process fees on a single property in foreclosure. There were 46 defendants in that case.
The company said the reason the number was so high was because the defendant had a common name, making it necessary to serve anyone with a claim against someone with a similar name, in case that person turned out to be the defendant.
Trawick and Bruce Rogow, a lawyer and professor at Nova Southeastern University, say law firms should issue summonses for “unknowns” only after the servicer goes to the property and finds other people there.
But Alan Rosenthal, a lawyer representing G&Z, said that would actually be more expensive because foreclosure suits would have to be amended for the new names to be added to the suit. It would also take a lot more time, he said.
For example, he said, if a server gets to house and finds it’s been rented, the tenant has a right to be served with notice of the suit.
“Speed is not necessarily bad, as long as the right people are served,” Rosenthal said. “This is required to get clear title.”
Gardner said she often gives lawyers the benefit of the doubt for an unknown spouse or unknown tenant, “but these bills go beyond one or two extra summonses.”
“Because of the large work volume, judges have let things like this slide,” Gardner said. “But lawyers have abused the system, and now it’s time to answer questions.”
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 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 15th, 2010 by Mark Stopa
Florida Law Firms Conducting Free Foreclosure Seminar
Mark Stopa and Matt Weidner to speak to Florida homeowners about foreclosure-related issues from a defense lawyer’s perspective on November 20, 2010 in Tampa.
Two prominent foreclosure attorneys, each of whom handle several hundred foreclosure lawsuits, are joining forces to put on a free foreclosure seminar for Florida homeowners.
Mark Stopa, Esq. of Stopa Law Firm and Matthew Weidner, Esq. of The Law Offices of Matthew Weidner, P.A. are conducting the free seminar on Saturday, November 20, 2010 at the Tampa Convention Center in Tampa, Florida. Mr. Stopa and Mr. Weidner intend to speak about a myriad of foreclosure-related topics, including loan modifications, strategic default, short sales, bankruptcy, and other “hot button” foreclosure issues.
Mr. Stopa, whose Stopa Law Firm is sponsoring the event, envisions the seminar as a way for Florida homeowners to learn about foreclosure-related issues from the perspective of a foreclosure defense attorney.
“There is so much misinformation out there,” said Mr. Stopa. “I’ve seen banks hold foreclosure seminars, and even some realtors, and I’m concerned that many Florida homeowners are unaware of the legal rights they enjoy or how the foreclosure process actually works.”
“It sounds hard to believe,” continued Mr. Stopa, “but banks are often the ones that cause this misinformation by actively misleading homeowners. Many homeowners think they can trust the banks, and they don’t retain counsel, so they don’t realize what’s actually going on until it’s too late.”
Mr. Weidner views the seminar as a way for homeowners to exchange stories, support each other, and seek widespread change in the foreclosure process. “The American people have become too passive in the foreclosure crisis,” said Mr. Weidner. “This seminar gives all of us a chance to ensure that our voices are heard.”
The seminar will begin in Ballroom “A” of the Tampa Convention Center at 11:00 a.m. on Saturday, November 20, 2010 and will proceed until late afternoon. Ballroom “A” seats 700 people, and it is anticipated that homeowners from all across Florida will attend.
Stopa Law Firm has offices in Tampa, Orlando, Jacksonville, and Ft. Lauderdale and currently handles several hundred foreclosure lawsuits throughout Florida. Stopa Law Firm can be reached at 888-450-1549 or http://www.stayinmyhome.com.
Matt Weidner handles several hundred foreclosure foreclosure lawsuits, primarily in the Tampa/St. Pete area. He can be reached at 727-894-3159 or http://www.mattweidnerlaw.com.
Mr. Stopa and Mr. Weidner both write a blog about foreclosure-related issues. Their blogs can be found on their respective websites.
Mark Stopa
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Posted on November 11th, 2010 by Mark Stopa
I had the opportunity today to interview with Bay News 9 in Tampa, essentially to give my opinions about the flaws with senior judges and rocket dockets. The interview aired in Tampa and Orlando. Here’s a link to the story, with video; the written version is below.
Jacqueline Fell, the reporter on this story, did a really nice job showing the contrast between how judges view the foreclosure process and how foreclosure defense lawyers do. Unfortunately, this debate isn’t going to end any time soon.
ORLANDO –
Foreclosure courts started in Orange and Osceola counties in July. It’s money straight from the legislature to pay separate judges to hear just foreclosure cases. It’s helping keep the court system moving. But some have said it’s helping banks kick people out of their homes faster.
Foreclosure courts were supposed to be the answer to the back log of cases at the courthouse. But just a few months and thousands of cases later, it’s now heavily criticized by national media and advocates for going too fast.
Administrative Circuit Judge Fred Lauten was hearing a number of cases before foreclosure court started. He said 10,000 cases in Orange and Osceola counties have been resolved since July, and it’s not moving too quickly.
“There are days when I’ve heard 10 cases in a hour, and there are days when I may have heard 30 cases an hour,” Lauten said.
“In a particular morning, a judge could rule on 100 foreclosures between morning session and break for lunch. The next day, the judge may only get to 25 to 30 of them. [It] depends on what the issues are on the case,” Lauten said.
Mark Stopa, who is one of the most outspoken foreclosure defense attorneys in the state, disagrees and said the foreclosure process is broken. “What happens is these rocket dockets and senior judges and everything just goes on a fast track, especially when homeowners don’t have a lawyer,” Stopa said.
When concerns of faulty paperwork made newspaper headlines, big banks put a moratorium on foreclosures to investigate. But things are back up and running.
Lauten said it’s not the job of the judge to find the proper lending owner and so criticism shouldn’t lie within the courts. “Any individual judge needs to decide the case based on what they hear in the courtroom, based on the evidence that’s presented before him or her and not based on something he might read in a newspaper or see on television,” Lauten said.
Stopa is urging for government intervention, saying homeowners aren’t given a fair chance to voice their arguments. He also continues to stress this process is so convoluted and complex that a homeowner shouldn’t go at it alone.
Stopa said getting an attorney for a year can be less than one month’s mortgage and could mean the difference in moving out or staying in your home.
Federal lawmakers are about to take a closer look at the judicial system’s role in the foreclosure crisis.
The House Judiciary Committee will hold a hearing next Wednesday.
A Florida congressman requested a hearing on the implications accelerated foreclosure courts have had on the rights of homeowners facing foreclosure.
Mark Stopa
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Posted on November 11th, 2010 by Mark Stopa
Judiciary Committee Heeds Deutch Call for Hearing into Foreclosure Courts
(Washington, DC) The House Judiciary Committee has announced it will hold a hearing next Wednesday, November 17th, to study the role played by the judicial system in the foreclosure crisis. The hearing will take place just weeks after Congressman Ted Deutch (FL-19) requested House Judiciary Chairman John Conyers arrange a hearing on the implications that accelerated foreclosure courts have had on the rights of homeowners facing foreclosure. As the Washington Post, New York Times, and other national media outlets investigate the possibility that lenders wrongly evicted homeowners without proper legal standing, this hearing will examine whether or not families have been denied due process during foreclosure litigation.
“The foreclosure crisis remains all too real in South Florida, with Palm Beach and Broward Counties leading in statewide foreclosure filings,” said Congressman Deutch. “I applaud Chairman Conyers for convening this hearing and for championing the rights of families across America who are struggling to stay in their homes during these challenging economic times. If states are going to move forward with alternatives to traditional foreclosure proceedings, we need to ensure that appropriate safeguards remain in place to protect the rights of homeowners. We have an obligation as lawmakers to protect American families from the kinds of abusive practices reportedly being employed by lenders with limited judicial oversight.”
A link to the original letter authored by Congressman Deutch is available here:
NOTICE OF HEARING:
Time: 10:00 am
Date: Wednesday, November 17, 2010
Location: 2141 Rayburn House Office Building
Hearing on Foreclosed Justice: Causes and Effects of the Foreclosure Crisis
By Direction of the Chairman
Committee on the Judiciary
2138 Rayburn House Office Building
Washington, DC 20515
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 November 10th, 2010 by Mark Stopa
Earlier today, Florida’s Fourth District Court of Appeal issued a published decision in a foreclosure case. (Clarification: I was not involved in this case.) It seems unfavorable to homeowners and, candidly, it is. As a foreclosure defense and appellate attorney, I’m frustrated when I read decisions like this, particularly since it’s clear to me that this appeal never should have been filed. Remember, folks – bad facts create bad law, so if you have bad facts, don’t appeal! I don’t want to sound critical, so let’s put it this way – here are the lessons that all foreclosure defense attorneys should take from this ruling.
First, a brief synopsis of the facts. Homeowner is foreclosed. Homeowner moves to vacate the foreclosure judgment based on fraud. In support, homeowner alleges the bank representative who signed the affidavit supporting summary judgment lacked personal knowledge of the facts set forth in the affidavit. The trial court denied the motion, and the Fourth District affirmed, agreeing with the lower court, essentially for two reasons: (1) just because the bank representative lacked personal knowledge of the contents of the affidavit did not mean the facts in the affidavit were untrue, rendering the homeowner unable to satisfy the “fraud” requirement for a 1.540 motion; and (2) the homeowner waived (or, using the appellate term, did not “preserve”) the objection that the information in the affidavit did not satisfy the business records exception to the hearsay rule because the homeowner did not assert that objection before the foreclosure judgment was entered.
The lessons to be taken from this:
1. It’s much easier to defend a foreclosure lawsuit before the foreclosure judgment is entered rather than afterwards. Here, for instance, the homeowner had to prove “fraud” post-foreclosure, and the appellate court ruled the homeowner failed to meet this burden. Had this same argument about the bank representative’s lack of personal knowledge been made prior to the foreclosure, the homeowner would not have had to prove fraud, but could have simply argued that the affidavit was inadmissible. Under well-established law, such an argument would have been well-taken, summary judgment would have been denied, and the foreclosure judgment would not have been entered.
2. You cannot expect an appellate court to reverse a lower court ruling based on an argument that you did not make in the lower court. There is a long line of cases that stand for this proposition and the rationale is clear. Generally speaking, no party in a lawsuit can go to an appellate court, and argue “the lower court got it wrong,” when that party did not make that argument to the lower court. Look at it this way – the purpose of an appeal is to correct an erroneous legal ruling of a lower court. If you don’t make an argument in the lower court, then, generally, the lower court can’t possibly get it wrong, as the judge can’t rule on an issue that you didn’t raise. This is called failing to preserve error, or preservation, and it’s one of the most common ways that appellate judges deny appeals with otherwise well-taken arguments.
In this case, for instance, the homeowner never argued, prior to the foreclosure judgment being entered, that the affidavit in support of summary judgment could not be admitted under the business records exception to the hearsay rule. As such, even though such an argument is well-taken, the appellate court is not going to reverse on this basis. Think of it this way – the appellate court isn’t going to tell the lower court judge “you got it wrong, judge, and we’re reversing the foreclosure judgment” when the party bringing that appeal did not even assert that argument to the judge. The judge can’t get it wrong when he/she was never asked to rule on that issue.
3. Undoubtedly, the biggest lesson of all – retain a competent foreclosure defense attorney from the outset. Not to toot my own horn, but Stopa Law Firm routinely files written objections to the admissibility of affidavits upon which banks rely in support of summary judgment. This way, there is never a question whether my clients have preserved arguments pertaining to the admissibility of these affidavits. As a result, when I attend a hearing on a motion for summary judgment, the judge will know that if he/she grants summary judgment, I’m going to have a good argument to reverse that ruling on appeal, and the error will have been preserved. That may sound harsh, but the threat of reversal is one of the best ways to get judges to rule in a homeowner’s favor and deny summary judgment. At the end of the day, that’s all we have as foreclosure defense attorneys – we constantly present case law to the judge and do everything we can to get the judge to follow the law in each case.
Mark Stopa
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