A Crazy Admission and a Judge’s Change of Heart

It was September, 2010.  I was defending a motion for summary judgment before Judge Parsons (Volusia County).  The argument was really strong.  Yet when the hearing began, I felt like I was battling for my life.  Judge Parsons’ displeasure with foreclosure defense oozed from every fiber of his being.  He asked pointed question after pointed question, grilling me for cogent explanations why summary judgment should be denied.  I left the hearing having prevailed, but having felt like I just ran a marathon.  Even as he denied the MSJ, the judge made it clear he wasn’t pleased to have to do so.

Fast forward to today.  I’m attending a hearing before Judge Parsons on a Motion to Vacate an Ex Parte Order (in an unrelated case).  The plaintiff, a securitized trust, filed suit in the name of U.S. Bank, as trustee for X trust.  (It wasn’t “X” but that’s shorter than typing the full name.)  A Notice of Lis Pendens, Assignment of Mortgage, and Motion for Summary Judgment were all in that plaintiff’s name.  In fact, in an affidavit supporting summary judgment, a representative testified that U.S. Bank, as trustee for X trust, testified that the plaintiff was the owner and holder of the Note.  My client, pro se at the time, filed a motion to dismiss and motion to strike the complaint as a sham.  Both were denied. 

Months later, the plaintiff’s lawyer filed a motion to correct “scrivener’s error” on the Complaint, Lis Pendens, and Assignment of Mortgage.  According to the motion, the Plaintiff, i.e. the securitized trust, “did not exist.”  Did not exist!   That bears repeating:

The bank’s lawyer admitted the securitized trust that filed the lawsuit, sought summary judgment, and filed an affidavit in support did not exist.

It wasn’t like the trust name was off by one letter, either (like could theoretically happen with a scrivener’s error – the name was totally different.  Anyway, the Plaintiff asked the Court, ex parte and without hearing, to correct the alleged scrivener’s error by changing the name of the plaintiff as well as the assignee on the Assignment of Mortgage.  Acting ex parte, Judge Parsons entered an Order granting the motion.

Justifiably feeling like he wasn’t getting a fair shake, the homeowner hired Stopa Law Firm.  We moved to vacate the ex parte Order, arguing we should have had a chance to contest the motion to correct the purported “scrivener’s error” at a duly-noticed hearing.  Today, Judge Parsons granted that motion.  The hearing was brief but very interesting.  With very little argument, the judge apologized for entering the Order ex parte, noting that such matters are often uncontested and he did not realize this one was contested.  Quickly, the issue became whether the motion to correct the alleged scrivener’s error should be heard right then or at a future hearing. 

The bank’s lawyer asked it to be heard right then, arguing the case had been delayed.  The judge interjected, saying something to the effect of:

The bank is complaining about delay?  I find that ironic.  In October, I was handling 40-50 foreclosure cases at a time.  Nowadays, I can’t get a bank to come have a hearing.  The banks all shut down in October, stopped prosecuting these cases.  I don’t see how the bank is now in a position to complain about delay.

From my perspective, it wasn’t just the ruling in this case, or what Judge Parsons said.  It seemed to me that his entire approach/perspective on foreclosure cases had changed.  Apparently, he realized that the banks chose to shut down operations due to their ongoing, systemic fraud and he wasn’t letting them get away with it any more.  Maybe I’m reading too much into it, but the ruling and the commentary were a stark contrast to his demeanor prior to October and a refreshing change. 

So as things now stand, the plaintiff is prosecuting a case on behalf of a trust that its lawyer has admitted does not exist.  The hearing on the motion to correct “scrivener’s error” should be fun!

Mark Stopa

Posted in Main | 9 Comments »

9 Responses to A Crazy Admission and a Judge’s Change of Heart

  1. Pingback: A Crazy Admission and a Judge’s Change of Heart | Foreclosure News Online

  2. David Acosta says:

    It would seem logical that to escape the obvious conclusion that the homeowner was right, that the original complaint was a sham, at some point soon the plaintiff may want to enter a voluntary dismissal. That is what they do when busted.

    In a situation like this it may make sense to move for summary judgment on the same grounds as the initial motion to dismiss. That is, where the plaintiff was non-existent, there is no way that a complaint can invoke or perfect the court’s subject matter jurisdiction. It is impossible. Under Florida law the court’s power to act remains at rest until invoked by parties bringing before it an actual case or controversy – without which there can be no power to adjudicate the issues. In this case, one of the parties is is non-existent. Therefore, the constitutional minimum requirement is not met and the court lack jurisdiction. Florida case law also clearly establishes that this form of jurisdiction (as compared with personal jurisdiction) is determined at the time of filing. This means that the plaintiff cannot correct a real jurisdictional defect existing at the time of filing – much less by claiming a scrivener’s error.

    A motion for summary judgment by the defendant closes the door to the plaintiff taking an involuntary dismissal. The adjudication would be on the merits, and, should the homeowner win = entitlement to an award of attorney’s fees.

    I was supporting a local attorney with a case having similar facts – the trust did not exist. In that case, I was asked by the attorney to conduct a search to conclusively determine whether a trust or corporation could be found by the name shown in the style of the case. My research, quite extensive, revealed no such entity in New York, Delaware or any other US jurisdiction. I prepared an affidavit to that effect and the attorney used it to derail the plaintiff’s threat and notice for trial and opened the door wide for discovery on the matter.

    Besides, a scrivener’s error? Give me a break. The motion seeking the correction of a scrivener’s error is also a sham and exposes the attorney to Fla. Stat. § 57.105 sanctions. Pressing for this form of sanctions (gotta give them the 20 days) may result in a withdrawal of the motion and cancellation of the upcoming hearing. As a practical matter, this too is an unfair debt collection activity that is actionable under the Fair Debt Collection Practices Act. Not to mention what occurred here is a very serious violation of the rules of ethics and the Florida Bar would want to know about this attorney.

    I believe more foreclosure defendants could benefit from being proactive and moving for summary judgment. I won my case on summary judgment, and it was affirmed on appeal. This does work.

    • Carol Anne Plowman says:

      Do you have a copy of the summary judgment by the Defendant or can you tell me the County, case number and style of the case. Thanks

      Carol Anne Plowman – The Cochran Firm Palm Beach

  3. JamesM says:

    As you point out, it is not a scrivener’s error.

    A motion to add or substitute party would be improper and should not be entertained by the court.

    Defendant motion to dismiss with prejudice is approprate, but against whom is the court going to award fees and costs? Not to mention sanctions under 57.105.

    Defendant would have a cause of action for ‘malicious prosecution’ and ‘abuse of process coupled with other remedies.

    Seems like the court would have to assess the Plaintiff law firm under 57.105 and because there is no plaintiff, refer the attorney who signed the complaint the Florida bar under 4-3.1 of the Florida Rules of Professional Conduct.

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