A Brilliant Move by the Bank – Dismissal

I  had a foreclosure trial today, and the bank’s attorney made a brilliant strategic move.  He dismissed the bank’s lawsuit before trial began.

Why was that brilliant, you wonder?  Why would the bank choosing to lose their case be a good move?  Simple.  By dismissing the bank’s foreclosure lawsuit before trial began, that lawyer prevented me from making arguments that the judge and several other defense lawyers in the courtroom had never heard before.

You see, I came to court with a box of case law.  I left my house at 5:30 a.m., I arrived early, and I watched several trials before mine.  I’m very confident the judge had never heard some of the arguments I was going to make. and had never been shown some of the case law I brought with me.  If the bank allowed trial to go forward today against my client, he would have allowed me to educate the judge – and all of the other foreclosure defense attorneys in the courtroom – with novel arguments and case law.  Once the judge realized that was the law, and he was bound to follow it – not just in my case but in many other cases with those same issues – that bank and its lawyer would have had problems in many other cases.  And once the other defense attorneys realized what they should argue, they’d parrot those arguments in future cases.  So the bank and its lawyer made the only smart move they could make.  They gave up.

I could literally see the logic in their thought process as it happened.  “If we dismiss Stopa’s case, we can get him out of this courtroom, prevent him from sharing those cases with the judge, and prevent him from showing the local defense attorneys the arguments he raises and the objections he makes.  If we proceed with trial, even if we somehow win, Stopa will have spread his information to everyone.”

That sounds arrogant, I realize.  But at my last trial, that’s just what happened.  Trial went on for four hours, and the judge commented how nobody had ever presented him with the cases I showed him, and he felt he was obligated to sustain an evidentiary objection I made and prevent the plaintiff from introducing critical evidence in that case.  The judge clearly didn’t like that result – openly wondering how foreclosure plaintiffs would be able to prevail whenever that objection is made.  Ironically, I lost that trial.  But I can’t help but think the bank’s lawyers made a mistake by going forward that day.  Yes, they won that case.  But that judge now realizes I was right on that critical evidentiary issue, and he’ll be constrained to rule that way in hundreds of foreclosure trials in the future … not just mine, but everyone’s.  That’s literally what the judge was saying in open court that day … how are the plaintiffs going to prove this issue in light of this objection?

From the bank’s perspective, you tell me … who won?  Who did better?  The plaintiff’s lawyer who dismissed the bank’s case today before trial started, losing that case but preventing me from unleashing my box-full of arguments in an open courtroom?  Or the plaintiff’s lawyer who won the case against me a few days ago (subject to my pending appeal, of course), but who allowed me to convince the judge that homeowners must prevail on a significant evidentiary issue that arises in hundreds, even thousands of foreclosure cases?

Plaintiffs’ lawyers, if you truly, sincerely think about it, you’ll realize I’m right on this one.  So when our case is set for trial, give me a call and let me know that you’ll dismiss the case and prevent me from sharing my box-full of arguments with judges and other defense attorneys.  We both know that’s the smart move for you.


Mark Stopa

Posted in Main | 12 Comments »

12 Responses to A Brilliant Move by the Bank – Dismissal

  1. DolleyMadison says:

    There is precious little case law in North Carolina, and the law is openly skewed in favor of Banks. There are maybe 3 lawyers in he whole state who will take your case and do so half heartedly at best and are clueless as to what is going on and their basic defense is to show up and say yes your honor as you lose. So I have been sending case law by category to judges all over North Carolina. No commentary, just the case with a summary…:)

    Also to legal aid offices. Maybe tilting at windmills but if just one judge has his eyes opened it will be worth it.

  2. Laura M says:

    Was this foreclosure in Broward County?
    Just wondering, and hope you are able to open the minds of the judges here as this is where our home is and we have retained you as our Defense Lawyer, who wouldn’t after reading your blogs and knowing how passionate you are about defending homeowners.
    Thank You for all your hard work.

  3. James Musters says:

    I think your analysis is probably spot on. Good work. Was opposing counsel someone you had previously won against in a different jurisdiction?

  4. Be scared of losing your home, and fight like HELL !!!!!!!!

    Stopa Law Firm


  5. Jennifer says:

    I have a question / comment about Bank of America’s “Cash for Keys” program. We have been in the foreclosure process, not approved for modification, etc. Just days after the “auction,” in which BOA somehow purchased their own property for far less than the supposed value, a realtor came to our home to see whether we were still living on the property (we are).

    She called the next day, stating that BOA is offering X-amount of dollars for us to be out in 30 days. I said OK, and she was going to email me documents. An HOUR later, she left a message stating that the bank’s attorneys had rescinded the offer and that they are now NOT offering us money to move.

    Is this common practice? What can we expect next? We definitely need both time to move and the funds to relocate. Thank you for any advice you can provide.

    • Mark Stopa Mark Stopa says:

      If a foreclosure judgment has already been entered and the sale has already taken place, the bank has little motivation to offer you money to leave.
      You have no leverage. You’ve already lost. They can have the sheriff come remove you.

      The time to potentially get $$ to leave is before the bank has won the case; that’s when you have leverage.
      You agree to let them finalize the foreclosure and they pay you money in exchange.
      Unfortunately, the banks don’t give out money once the process is already over.

      That’s how I see it in FL anyway.

      Best of luck.

  6. Mike Gaydos says:


    You and Matt W. keep describing vague new methods. I am in Ma. and have been waiting since 2009 for a WaMU2007 Remic to come forward against me.

    My attorney (Tom Vawter) has had incredible success post foreclosure (M&T Bank v. Dibbles) getting an eviction overturned as VOID AB INITIO! You might look close at who can evict and whether capacity and standing can be questioned in regards to the party trying to evict. Can you shed any light in regards to your new strategy?


    • Mark Stopa Mark Stopa says:

      I’m not sure I understand your question.
      I’ve posted a lot of info about the specific strategies we use.
      I’m sure you can understand that not everything can be set forth in a public forum.
      Remember, the banks and their lawyers read this stuff, too.

  7. DGabelli says:

    Just curious as to what happens to the case in regards to the homeowner in this instance. If the bank elects to dismiss the case, is that the end? What does the homeowner face next? Does the process start over again or does the homeowner end up with a ‘free’ house?

    • Mark Stopa Mark Stopa says:

      Free houses are possible but quite rare.
      This is a question I answer on a case by case basis for existing clients, not in a public forum.
      Too many evil eyes watching.

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