Oral Argument on Par. 22 … 35 Years in the Making

I have an oral argument before Florida’s Second District Court of Appeal tomorrow morning.  The issue before the appellate court is whether the lower court was correct in dismissing a bank’s foreclosure lawsuit where the requisite pre-suit notice did not comply (or, to use the bank’s proffered term, “substantially comply”) with the terms of paragraph 22 of the subject mortgage.

Paragraph 22 is something I’ve been discussing for a long time on this blog.  While I’ve argued it hundreds of times before Florida’s circuit court judges, this argument is the first of its kind in a Florida appellate court … at least in the context of a homeowner getting a case dismissed at summary judgment for paragraph 22 noncompliance.  Yes, there are published decisions which have reversed a Final Judgment of Foreclosure where the bank did not comply with paragraph 22, but none which expressly authorize an outright dismissal of the bank’s lawsuit for failure to comply.  For me, that’s the logical next step in the argument – one on which I’ve prevailed in many dozens of Florida foreclosure cases and one I which I hope to succeed in tomorrow’s case.

The interesting thing about this argument is that, even though it appears new and novel, it’s actually not.  In fact, this argument has been around since before I was born.

Just a few days ago, a homeowner came to me to defend a foreclosure lawsuit on a mortgage that was entered and recorded in 1982.  Yes, 1982.  The mortgage was a “short form” mortgage created by Federal Home Loan Mortgage Corp., and that “short form” mortgage incorporated by reference a “Master Form” Mortgage recorded in the Official Records of Hillsborough County on February 29, 1976 at OR Book 3093, Page 1749.  If that sounds complicated, it’s not.  All it means is that each specific “short form” mortgage, i.e. each homeowner’s particular mortgage, includes as a part of that mortgage the terms and provisions set forth on the Master Form.

As I perused the Master Form Mortgage, I quickly noticed the bolded paragraph contained in paragraph 18.  Do you recognize it?  You should.  It’s virtually identical to the standard ”paragraph 22″ that we see in so many Fannie Mae mortgages nowadays.

Yes, what we now know as paragraph 22 has existed in countless mortgages in Florida since at least February of 1976.   Hence, the argument may seem novel, but this issue has been around for 35(+) years.

As I see it, 35(+) years is enough time for binding precedent from an appellate court to be created that says “The bank’s obligations under a contract mean something.  We agree a foreclosure lawsuit must be dismissed where the bank’s paragraph 22 notice did not say what it was required to say.”

I’ll post the videos of the oral argument if I can get my hands on them.  Wish me luck.

Mark Stopa

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3 Responses to Oral Argument on Par. 22 … 35 Years in the Making

  1. Stacy says:

    I hope your argument went well today!

    Back in March of 2013 when I was pro se, I tried to get my then 3-year-old foreclosure case dismissed using the paragraph 22 argument and the fact that the bank did not abide by the notice requirements in the mortgage document (they broke into and locked me out of my house without giving me notice, a month before they filed for foreclosure. They also did this six months later without notice. I changed the locks back both times.)

    I also pointed out that if the bank had responded to my numerous letters and phone calls in 2009 stating my desire for a DIL or short sale, the fees and costs (including outrageous insurance charges, and taxes) they were claiming in addition to the loan balance would have been avoided, since taxes and insurance payments were paid on my end through most of 2010. They did not mitigate their damages.

    I’m sure I went beyond the four corners of the complaint, but I was pro se, what do I know.

    Once I got a lawyer, we tried a motion for Summary Judgment, but no dice. A few weeks ago it went to trial, and the bank argued that they had “subtantially complied” with paragraph 22, and that is all that is required in this state. The bank representative also confirmed that they did not have on file any notices given to me regarding “home inspections” (bank parlance for “breaking and entering”). Nevertheless, a few hours following trial, my attorney received notice that the foreclosure was granted, and I owe the bank a whopping $185,000 (the house is probably worth $50,000)which includes the fees and costs, BUT not attorney’s fees. They aren’t claiming those for some reason. We have appealed!

    on a lighter note, the jury trial involving the “property preservation” company is slated for the first week in October, and they are the defendant.

  2. Mark Bowen says:


    Although I believe that the paragraph 22 argument really only serves to extend the time the defendant may spend in the home because the end result will usually be a re-file by the Plaintiff, I do absolutely wish you the best of luck in the corporate controlled 2nd DCA. By the way, if one of the judges tries to redirect the line of questioning to something like “when did your client last make his mortgage payment?”, please don’t fold like Weidner did in front of the same court when he was trying to argue the negotiability of the subject note. The question is irrelevant to the case, as the question is not whether the defendant/appellant borrowed money or even owes any money, but to whom the money is owed. Again though, I sincerely hope you prevail at oral argument, especially in the 2nd, if only to set a new precedent in the District.

    • Mark Stopa Mark Stopa says:

      Virtually everything in foreclosure defense, even if successful, does not prevent re-filing.
      Even a dismissal with prejudice doesn’t prevent re-filing.

      Paragraph 22 arguments give homeowners a lot of leverage.

      It’s sometimes difficult to get the judges to focus on the issues that you want them to focus on during an oral argument.
      I feel like it went pretty well.

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