The Anatomy of a PCA

Handling appeals on behalf of homeowners is an enjoyable and important aspect of my foreclosure defense practice.  You see, it’s one thing to go into court and make good arguments; it’s another for that judge to know you can prosecute an appeal (and win) if the judge doesn’t follow the law.  Just the other day, for instance, I cited a published appellate decision to a trial judge.  I was the counsel in that appeal, she was the judge, and her ruling was reversed.  Being able to do that is invaluable.  :)

Anyway, this post isn’t being written to brag.  If anything, it’s precisely the opposite.

Handling appeals is hard.  Really hard.  No matter how good you are, you’re going to lose some that you’re convinced you should have won.  That’s frustrating enough, but it’s 10 times worse when you lose via a “PCA.”  That’s when an appellate court does not write a written opinion, but simply issues a “Per Curiam Affirmed” decision which approves the lower court’s ruling without explanation.

This is a hard dynamic for the typical homeowner to understand, so I wanted to post an example.

Many months ago, a homeowner from Palm Beach came to me with what I thought was a great fact pattern.  She lost at trial (I wasn’t trial counsel) even though the original Note was sitting in a different court file, initiated by a different plaintiff, at the time suit was filed.  How could Plaintiff have been the “holder” (requiring possession of an original, endorsed Note) at the time suit was filed where that Note was in a different court file initiated by a different plaintiff?  They couldn’t.  But the law requires that they were.  See McLean v. JP Morgan Chase Bank, N.A., 79 So. 3d 170 (Fla. 4th DCA 2012).  So I took the case and filed an appeal.

Here was my Initial Brief, spelling out that argument.

In its Answer Brief, did the Bank show I was wrong?  Did it show it was the holder when suit was filed?  Heck no.  The bank didn’t even try to argue it was the holder, abandoning (and implicitly conceding) that concept altogether.  Instead, it made an entirely different argument, contending it had standing based on an Assignment of Mortgage.

But that argument was a clear loser – at least as I saw it.  After all, the assignment upon which the bank relied only conveyed the mortgage, not the Note, and the Fourth District had just issued a decision explaining such assignments are ineffectual as a matter of law.  See Bristol v. Wells Fargo Bank, 137 So. 3d 1130 (Fla. 4th DCA 2014).  Additionally, that assignment conveyed nothing because the assignor had already assigned the Note and Mortgage two years prior to a different entity.  As such, I filed this Reply Brief, showing why the bank’s lone argument for standing was clearly wrong.

The 4th DCA took 9 months to rule (even after all the briefs were filed), yet here was what I got the other day:  a PCA.  One piece of paper, no explanation, just “affirmed.”  You lose.  Goodbye.


How?  Why?  How could anyone conclude I lost that appeal?  Those are the thoughts every appellate attorney has upon receiving a PCA on a fact pattern like that.

The knee-jerk reaction of any appellate lawyer, upon receiving a PCA, is to draft a semi-angry motion for rehearing, telling the appellate court how wrong they were.  I know that feeling.  Anyone with experience drafting appeals has felt that way.  Heck, even the appellate judges know we feel that way.  It’s human nature.

Over time, I’ve learned to resist that temptation, let things sit for a few days, and re-assess.  Can I envision any version of the facts that justified ruling against me?  What was the other side’s best argument?  If I had to argue their position, could I understand why I lost?  If so, then it’s not worth doing a motion for rehearing, particularly on a PCA – you just have to accept, as hard as it is, that you can’t win them all.

On this appeal, though, I just don’t see it.  I can’t see how that one was affirmed.  So I wrote this Motion for Rehearing.  Three pages.  Short and sweet.  Unless the 4th DCA reverses its ruling on rehearing, that’s the fact pattern I’ll remember years from now … original note sitting in a different court file, initiated by a different plaintiff, the bank essentially admits it’s not the holder and relies on an AOM, yet that AOM only conveyed the Mortgage, not the Note, and the assignor had conveyed the Note/Mortgage to a different entity (not the plaintiff) two years prior.

Even with that, motions for rehearing are rarely granted.  Hence, chances are, that’s what I’ll remember from this appeal years from now.

This post isn’t made as a criticism of anyone.  It’s simply a real-life example, showing homeowners how hard it is to win in the appellate court – even when you have a great fact pattern – and how frustrating it can be to go down this road.  This, more than anything, is why I fight, but, at the same time, is why I’m pragmatic about the battles I choose.

More than anything else, I hate this for you, Leslie.  Your attitude was wonderful throughout this process.  All the best to you and yours going forward in life.  :)


Mark Stopa

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