Standing At Inception: First DCA Goes En Banc

A recent blog by Carlton Fields filled my Facebook feed, and I thought it time to explain what’s going on from the homeowners’ perspective.

Florida’s First District Court of Appeal recently voted en banc to reconsider the long-standing requirement that lenders prove their standing to foreclose at the inception of a lawsuit.  Recognizing the importance of the issue, the 1DCA invited briefs from amicus curiae (a fancy way of saying “anyone interested in the issue who could help the court decide how to rule”).  Recognizing that banksters would fork over whatever monies necessary to pay their big-name law firms to brief this issue, I knew I had to take action on behalf of consumers, even though I’d be doing so for free.  So I sought – and obtained – permission to file an amicus curiae brief on behalf of myself and Stopa Law Firm.

Here it is:  Rigby – Amicus Curiae Brief

The short version?  No matter how many thousands of dollars the banksters pay their lawyers to try to convince the First DCA to take away more rights for Florida consumers, the Florida legislature and the Florida Supreme Court have both indicated that “standing at inception” is the law in the foreclosure context via Fla. Stat. 702.015 and Fla.R.Civ.P. 1.115, respectively.  I mean, the Florida Supreme Court created a rule of civil procedure to expressly require banks plead and prove their standing to foreclose at the inception of the case.  As such, no matter how the First DCA may feel about standing in foreclosure cases (and, sadly, it appears it wants to eliminate the concept of standing at inception, lest it would not have voted on the issue en banc in the first place), it lacks the authority to overrule the express will of the legislature and the Florida Supreme Court.

Oh, and while writing the brief, I couldn’t help but note that when this exact issue came before the Second District in a case I was counsel, the entire court unanimously ruled in my favor.  See Corrigan v. Bank of Am., N.A., 189 So. 3d 187 (Fla. 2d DCA 2016) (en banc).  Basically … do what the Second District did, First DCA.  ?

So … I expect the concept of standing at inception to remain the law in Florida, and I expect the First DCA to so rule in this case, even if it does so begrudgingly.  If I’m wrong in that regard, then you can bet this fight will be taken into the Florida Supreme Court, and I’ll be ready to file a brief there, too.

If this sounds like a lot to digest, then try to relax, Florida consumers.  The banks might be shelling over untold monies to try to take away your rights, but I’ve got your backs.  ?