Another OA on HUD Regs as Condition Precedent

Here’s the video of the 11-19-15 Oral Argument before the Fifth District.

The issue was whether HUD Regulations in an FHA mortgage operate as a condition precedent (putting the burden of proving compliance on the lender in a foreclosure trial) or an affirmative defense (putting the burden of proving failure to comply on the homeowner at trial).

This was a similar argument to that from 11-17-15 (below), yet the Court saw/handled the issues very differently.

It’s an interesting watch, and some of you may be amused by the court’s jokes about me needing “decaf” or “medication” and suggestion that I drive home “slowly.”  Regardless of whether you interpret that as criticism or all in good fun (I consider it the latter), I’m pleased with how well the judges knew the arguments and how engaged they were with me … really, that’s all I ever ask for in foreclosure-world.

Mark Stopa

www.stayinmyhome.com

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Oral Argument: HUD Regulations as Condition Precedent

Here’s the video of my 11-17-15 Oral Argument before the Second District.

We discussed two novel, cutting edge issues:

(1) a foreclosing lender’s obligation to comply with HUD Regulations before acceleration and foreclosure in an FHA mortgage, and whether such compliance is a condition precedent or the absence of such is an affirmative defense at trial; and

(2) whether a foreclosing lender can avoid proving it had standing when it filed suit by proving such standing upon the filing of the amended complaint.

Mark Stopa

www.stayinmyhome.com

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Arguing FHA in the Appellate Courts

I have two Oral Arguments this week, one in Florida’s Second District Court of Appeal and one in the Fifth District.  The issue in both appeals is whether the face-to-face counseling requirement of 24 C.F.R. 203.604 is a condition precedent to foreclosure of an FHA Mortgage (such that the burden of proving such counseling is on the lender) or an affirmative defense (such that the burden of proving the lack of such counseling is on the borrower).

I think the counseling is a condition precedent, but there’s no case law in Florida on point.  So … let’s go make some law. 

Here are the briefs for these two appeals:

Corrigan:  Tues., Nov. 17, 2015 at 9:30 before the Second District, though I’m last on the docket

Inital Brief (by me)

Answer Brief (by the Bank)

Reply Brief (by me)

Here’s a link to the live Oral Argument

Vallandingham:  Thurs., Nov. 19, 2015 at 10:00 before the Fifth District, though I’m last on the docket

Initial Brief (by me)

Answer Brief (by the Bank)

Reply Brief (by me)

Here’s a link to that live Oral Argument

Mark Stopa

www.stayinmyhome.com

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Invited Error, Arguing Milam

Here’s the video from my most recent oral argument in the Second District.

This one involved a paragraph 22 argument and the relatively unique concept of “invited error.”

My favorite parts:  (i) when the judges flat-out told the bankster lawyer that his first argument was not good; (ii) my exchanges with Judge Salario regarding the Milam decision, where I was put in the exceedingly rare position of arguing the content of my still-pending Motion for Rehearing in Milam with the judge who wrote the opinion (because that argument also pertained to the issues raised in this appeal).

Mark Stopa

www.stayinmyhome.com

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Judge #49 on Fla. Stat. 559.715

I’m now up to 49 different circuit court judges who have dismissed a foreclosure lawsuit based on the lender’s failure to give the notice required by Fla. Stat. 559.715.  49!!

Here’s the Order written by the latest judge to so rule.

Trust me, it’s worth the read. 

Judge McClellan, Bay County:  Order on 559.715

Mark Stopa

www.stayinmyhome.com

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559.715: Oral Argument Against Akerman

Here’s another video of an Oral Argument before the Second District on 559.715.

Do you think I have their attention yet?    I’d say so, given how Judge Khouzam started the argument by noting how many times I’ve been there on this issue.

FWIW, this one was against Akerman.

Mark Stopa

www.stayinmyhome.com

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559.715 Oral Argument, with Extra Time

Here’s a video of my Oral Argument on Sept. 1, 2015 before the Second District.

The topic was Fla. Stat. 559.715 (what else?).  The coolest part of the argument was the panel’s interest in the issue – so much so that they let us go on for twice as long as usual.  Twice as much time to argue?  Sign me up. 

A written decision on this issue is coming.  Cross your fingers! 

Mark Stopa

www.stayinmyhome.com

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Substantial Compliance on Par. 22: Milam Motion for Rehearing

Anyone who watched today’s Oral Argument in the Second District on Fla. Stat. 559.715 observed an inside joke, mid-argument, exchanged between me and Judge Altenbernd.  It’s probably time I elaborate on what happened.

Recently, a two-judge panel of the Second District decided “substantial compliance” is the legal standard to employ in the paragraph 22 context.  I’ve been stewing about this for some time now, deciding how I wanted to present the issue in this blog, and I guess I realized there is no good way.  Let’s just say I can’t stand it.

Ironically, saying “I can’t stand it” aren’t my words, but those of Judge Altenbernd in today’s argument, who brought up this ruling out of the blue with a chuckle.  We laughed, and he laughed again when I asked if the Court was going to rule en banc, as I requested in my Motion for Rehearing.

How would Judge Altenbernd know about my Motion for Rehearing in Milam when he wasn’t on that panel?  Well, check out the Motion.  I mention him by name repeatedly.  Clearly, word got around (and that’s a good thing).  It’s also good that the motion has been pending for nearly a month now without getting denied.  (Motions for rehearing are typically denied quickly.)  Who knows, perhaps I got someone’s attention.

I’m obviously disappointed in the court’s opinion in Milam.  My Motion for Rehearing barely scratches the surface on why.

Sometimes in life, I suppose I have to know I gave it my very best and live with the results.

The battles wage on.  I’ll post the arguments I’ve been doing on 559.715 when I receive the videos.  An opinion on that issue is coming. 

Mark Stopa

www.stayinmyhome.com

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Exceptions to Established Law in Foreclosure-World … Based on “Equity”

I’m extremely disappointed at an opinion I just read, one which declines to apply the statute of limitations in the foreclosure context based on “equity,” i.e. because (or at least partly because) the court doesn’t deem it fair for homeowners to get a “windfall” by a mortgage being eliminated.  Here, have a look.

The legal “analysis” in this opinion is contrary to years of established law on the statute of limitations, particularly when one looks to case law outside of Florida (which none of the cases in this context EVER seem to do.  Sigh.).

Today, though, I don’t want to talk case law.  I’ve done that before.  Today, I want to just talk (vent, perhaps), as if I were chatting with a (non-lawyer) friend.

The statute of limitations exists in every legal context imaginable except murder.  Every single one.

Imagine a family of seven.  A married couple with five children, all playing happily together in the front yard.  If a drunk driver hops the curb and mows them all down, killing three and paralyzing two others, but the ensuing wrongful death/personal injury suit is brought one day after the statute of limitations lapsed, then the SOL bars that lawsuit.  Zero recovery.  It doesn’t matter if the plaintiff’s lawyer was headed to the courthouse to file suit on the day the SOL ran but couldn’t do so because he was struck dead by lightning; the SOL would still bar recovery.  An equitable exception?  Based on fairness?  Sorry; doesn’t exist.  Go on your way, drunk driver; you owe nothing.

Imagine the worst crime your brain can fathom (short of murder).  Rape.  Attempted murder.  Kidnapping.  No matter how heinous, if the state does not promptly pursue criminal charges, the statute of limitations is a complete defense.  It doesn’t matter that said defendant was guilty as sin or that the offense committed would make Ted Bundy look like an angel; that defendant walks free.  An equitable exception?  Based on fairness?  Nope; doesn’t exist.

Foreclosures, though, are different.  Well, they aren’t different … but they’re treated differently by our courts.

In foreclosures, after all, we must protect the banks at all costs.  And we mustn’t let those deadbeat homeowners win!  As a result, while our courts won’t create an exception for that wrongful death suit caused by the drunk driver, or that criminal defendant who raped and attempted murder, our courts will create such an exception in foreclosure-world.  Because, by golly, we just can’t allow deadbeat homeowners to get a windfall!  And we can’t prevent a bank from foreclosing!  Sure, we might let a case be dismissed on occasion based on standing, but never the elimination of a mortgage!

If this sounds a bit like a vent, then, well, it is.  I’m angry.  Well, perhaps not angry … bitterly disappointed.  And you should be too.  We should all feel that way right now.  This isn’t about the result reached, either.  If the law truly says the SOL doesn’t apply, then so be it.  (That’s all foreclosure defense lawyers want – follow the law.)  But dang it, don’t tell me that “equity” is part of the analysis, because I know darn well there are many instances in the law far more deserving of an exception to the SOL than foreclosure cases … and if equity doesn’t apply in those instances, it sure shouldn’t apply here.

Fortunately, this isn’t the end of this issue.  Let’s hope the Florida Supreme Court gets it right.   Oral argument on that issue is set for November.

Mark Stopa

www.stayinmyhome.com

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Arguing Fla. Stat. 559.715

Compliance with Fla. Stat. 559.715 has become a common argument in foreclosure cases, ever since I published the concept on this blog years ago.
I’m fine with this … honest, I am.
I knew it would happen when I went public with the argument.

That said, if you’re going to copy this argument, then, for the love of God, do it right!

(SMH at the recent Summerlin decision, which lacks legal authority and is plainly wrong.)

Mark Stopa

www.stayinmyhome.com

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AOL Studios / Huff Post Documentary

This was one of the videos in a series, sponsored by State Farm, titled “Simple Acts of Kindness.”

Mark Stopa

www.stayinmyhome.com

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Appellate Brief from that Gainesville Trial

Remember that Gainesville trial?  You know, the one where the judge threatened to hold me in contempt mid-trial, then prevented me from presenting any evidence in defense of the case?

Well, here’s the Initial Brief from the appeal in that case.  (Note that, yes, the judge did recuse himself, though, again, I make no comment.)

This brief is a bit shorter, but it includes some arguments I don’t typically make … consider it more arrows in the quiver. 

Given the first two issues, I’m confident in a reversal on appeal, and I’d be mildly surprised not to see a confession of error.  But you never know with those banksters. 

Mark Stopa

www.stayinmyhome.com

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Intradistrict Conflict, Issue of 1st Impression, Same Appeal

As if my Corrigan appeal, which I’ve blogged about in the past, weren’t interesting enough already, it’s gotten even more fun (insert dork jokes here).  ;).

This is the appeal where I’m arguing the face-to-face counseling requirement of 24 C.F.R. 203.604 is a condition precedent (as opposed to an affirmative defense) to foreclosure in an FHA mortgage, an issue for which there are no published appellate decisions in Florida.

At first, the Bank’s only argument in its Answer Brief was that the burden of proof was on my clients at trial. After I filed a Reply Brief destroying that argument, the Bank backtracked and confessed error.  Yes, the Bank acknowledged I should win the appeal on the issue of standing.

Just a few days later, though, the Second District issued its May 8, 2015 decision in AS Lily.  That prompted the Bank to backtrack yet again, withdraw its confession of error, and, and file an Amended Answer Brief (over my objection, sigh), arguing it had standing at the time of the Amended Complaint – based solely on that one case (AS Lily) – so that was good enough.

One case that’s so different than all the others on the issue of standing … what do we make of AS Lily, exactly?  It’s literally the only case (out of hundreds) which authorizes standing in a foreclosure case as of the time of the Amended Complaint, not the original complaint.

Well, here’s my take.

I had to ask the Court for permission to file this brief since it’s so long, but that issue aside, I basically assert AS Lily is wrongly decided, an aberration in the law, and that other decisions, both before that case and after, are controlling.  I even try to explain how AS Lily came about (see footnote six), a dicey proposition, perhaps, but lack of guts has never been my problem. 

And there it is.  An issue of first impression in Florida and an assertion of intradistrict conflict … in the same brief.

And with that, the good guys keep forging ahead, fighting like hell for consumers throughout Florida. 

Mark Stopa

www.stayinmyhome.com

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Par. 22: The Oral Argument 7 Years in the Making

It was 2008.  Stopa Law Firm was little more than me, Mark Stopa, sitting in my house, starting to work on foreclosure cases.  At that point, the concept of “foreclosure defense” barely existed.  Almost everyone thought homeowners who hadn’t paid their mortgage couldn’t possibly have a defense.

Well … a mortgage is a contract, though, right?  That’s what I thought back then, sitting in my house.  So I read the contract – the standard, Fannie Mae mortgage, to see what I could find.  That’s when I first encountered paragraph 22.  Even then, I can remember thinking “Oooh, that’s a condition precedent … this is going to be good.”

In the ensuing seven years, I’ve pushed this issue as hard as I could before anyone who would listen.  From advancing the arguments on the ground level – literally, judge by judge – to changing the Holt decision on rehearing as an amicus, the ride has been a blast.  We’ve created law.  We’ve, literally, changed foreclosures in Florida.  Lenders now routinely have to submit the “paragraph 22″ letter into evidence at trial.  And if the letter does not say what paragraph 22 requires it to say, then dismissal can ensue.

With so many hearings over the years – literally, thousands of hearings – it might seem strange to say my work all came to a head at any one particular hearing, but that’s how I felt on June 9, 2015, when I had an oral argument before the Second District.

Part of what made this argument so interesting was knowing that Judge Altenbernd (one of the most renowned scholars in the history of Florida appellate law) would be on my panel, and Judge Altenbernd (he of the concurring opinion in Focht) is not exactly known for writing consumer-friendly opinions in the foreclosure context.

So I started my argument by addressing the elephant in the room, earning a chuckle from the Court, then got down to the legal merits.

I see Judge Altenbernd authorizing a written decision in this case.  I could be wrong, of course, but after this oral argument, I feel it coming.

I think we are right here, and I think we’ll win.  Hence, I can’t wait for Judge Altenbernd’s decision.    But win or lose, I know I’ve given everything I have to this issue over and over again, doing my absolute best.  Sometimes, all I can do is hope my everything is enough.  

Mark Stopa

www.stayinmyhome.com

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Oral Argument: Preservation is Key

I’ve often discussed the importance of parties preserving the errors about which they complain.  In layman’s terms, that means, if you want to bring an appeal (in a foreclosure case or any other type of proceeding), you better be able to show the appellate court you made the specific objection/argument you’re making to it in the trial court below.  If you cannot show you preserved the error with a contemporaneous, specific objection, then, generally speaking, you cannot win an appeal – regardless of whether your position would have otherwise been meritorious.

If you don’t frequent appellate circles, you’re likely to underestimate the extent to which this matters.  But here, don’t take my word for it – check out this video from my recent oral argument before the Second District.

I haven’t received a ruling yet, but I’m confident a PCA is coming (affirming the lower court’s order dismissing the case without explanation).  Just look at the judges.  They’re not saying the lower court got it wrong when the Bank can’t even show what it argued to the lower court.

Mark Stopa

www.stayinmyhome.com

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Reasonable Attorneys Fees; The Debate Resumes

I recently decided to testify as an expert for a bank in a foreclosure case.  It was a hard decision, and while the concept certainly disgusts me in some ways, I guess I was more disgusted at the fees being charged by the foreclosure defense lawyer on that file.  Anyway, this has stirred up an old debate among colleagues about the reasonableness of fees in foreclosure cases.  Some colleagues, frankly, are irate I’m testifying that the fees of any defense lawyer in a foreclosure case are unreasonable.  How could you help the banks, Stopa?

They don’t get it.  I’m not helping the banks.  I’m helping consumers.  Fighting to ensure reasonable fees for everyone.  You might recall, this is not the first time this debate has arisen.  In fact, I wrote blogs about this years ago – here and here, for example – and my stance on this issue has not changed.  If anything, years of experience has me more entrenched in these opinions than ever before.

I want to change the industry.  I want to win as many cases as possible.  I want to help as many consumers as possible.  Creating an industry where reasonable fees are charged is a significant step in achieving those ends.  And trust me – judges agree.  Some colleagues might not understand that, but I’m exceedingly confident judges agree.  And since judges are the ones who decide whether to dismiss these cases, I want judges agreeing with me as frequently as possible (particularly when it comes to my motivations behind the work I do). 

Mark Stopa

www.stayinmyhome.com

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Fla. Stat. 559.715: The Battle Continues

This week, I filed briefs in two more appeals.  Both included arguments on Fla. Stat. 559.715, and I’ve now officially lost count of how many appeals I have pending with this issue. 

Between all the appeals, all the briefs, and all the opposing law firms, it now feels like STOPA in one corner and THE REST OF THE WORLD in the other!  But that’s OK.  Everyone likes an underdog. 

Anyway, here’s the Initial Brief I just filed in Florida’s First District Court of Appeal.  While this is similar to others I’ve filed on 559.715, there are significant nuances with each case.  For example, notice how, on this one, I’m also challenging the bank’s compliance with paragraph 22 based on an evidentiary argument made at trial?  (Consider that a word of warning if you’re trying to be your own lawyer by copying these briefs – it’s not possible; the nuances are endless.)

Meanwhile, I have another Oral Argument in the Second District, this one scheduled for Wednesday, June 17, 2015 at 9:30.  In this one, I got the case dismissed on summary judgment, and the bank is appealing.  I’m defending on three grounds:  (1) the bank did not preserve its arguments; (2) paragraph 22; and (3) 559.715.  Here are the briefs:

Initial Brief (by the Bank)

Answer Brief (by me)

Reply Brief (by the Bank)

Eventually, we’re going to get a written opinion on 559.715.  Maybe not on this appeal (my prediction is a PCA), but we’ll get one before too long!

Here’s a link to live video of the arguments.  If you miss it, I’ll post the video here after it’s over. 

Mark Stopa

www.stayinmyhome.com

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Video of Winning Appellate Argument

Here’s the video of my oral argument on May 19, 2015 before the Second District.

You’ll recall I posted the appellate briefs here. 

Today, I received a copy of the Order from the Second District, affirming the lower court’s dismissal in my favor.  Yay! 

Happy watching. 

Mark Stopa

www.stayinmyhome.com

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Thank You, Senior Judges

As June, 2015 winds down, we start a time of transition in Florida foreclosure courts.  Effective July 1, 2015, the Florida legislature is no longer appropriating special funding towards foreclosure cases in Florida courtrooms.  This means, in many counties, the end of senior judges adjudicating foreclosure cases.  Procedures will vary from county to county, but elected circuit judges will now adjudicate foreclosure cases in many, if not most, instances.

Though many consumer advocates have lamented the senior judge system, associating senior judges with pejorative terms like “rocket docket,” I’ve had many good experiences with senior judges over the years.  In fact, many if not most of the 926 dismissals (and counting!) that I’ve obtained in foreclosure cases have been from senior judges.  So, before many of these senior judges retire from foreclosure cases, never to return to the bench, I wanted to take a moment to thank a few of them whose paths I crossed over this time.

This is not an exhaustive list (I’m sure I inadvertently omitted a few), and yes, every one of these judges ruled against me at various times, some of them many times.   But my note of appreciation isn’t about winning or losing any particular case, it’s about the feeling I had with each such judge that he/she was trying to rule fairly in my cases and follow the law, not just push me through the system because I was representing homeowners who hadn’t paid their mortgage.

Perhaps most of all, these judges all tolerated ME.  As some will tell you, that’s sometimes no simple task.   

Without further ado …

Hon. Donald Evans, Tampa:   Thorough.  Patient.  Attentive.  The first to ever go with me on Fla. Stat. 559.715 – and the snowball began!  Yet even when I lost, I never once felt like it was a result of bias.  Happy Retirement, judge.  I’ll miss seeing you on the bench.

Hon. Perry Little, Tampa:  With his calm, patient demeanor, it’s hard not to leave his courtroom a nicer guy.  (Gasp, yes, even me, judge.)

Hon. Sandra Taylor, Tampa:  So kind, and a great poker face.  One day, judge, after this is all over, you’ll have to tell me how much that Correa decision impacted your rulings on my cases.

Hon. Judy Biebel, Tampa:  Covered hearings in Palm Beach, too, and laughed at how the banks were scared of her because she was from Tampa.

Hon. Raul Palomino, Tampa:  Any judge I can move to disqualify one day, then argue four hearings the next day like nothing happened … my kind of judge.

Hon. Christine Vogel, Tampa:  Never once felt like I got treated unfairly, whether I lost (most Par. 22s) or won (many 559.715s).

Hon. Frank Gomez, Tampa:  Openly admitted he doesn’t like my defensive MSJs but still granted them where he thought the law required it.  What I’ll always remember, though, was how, whenever a morning docket started, we’d make eye contact and, without a word exchanged, both of us would just start laughing.  The fun was about to begin!

Hon. J. Rogers Padgett, Tampa:  I loved hearing his stories of how, years ago, nobody would dare defend foreclosure cases – there were no defenses (at least, that’s what everyone thought) … and admitted, as things got started in 2009, that’s what he still thought … but as the arguments evolved, so did his rulings.  Loved that.  Loved the consistency, too.  If I had 6 hearings in a row, it didn’t matter if I won all 6 or lost all 6 – he was going to follow his interpretation of the law.

Hon. David Demers, St. Petersburg:  In an age of robo-testimony at trial (yes, I said it, robo-testimony), this judge’s perspective on what it takes to lay a predicate was SO refreshing.  Keep teaching law students what a “predicate” means, judge.  And yes, I agree, the evidence code isn’t different for foreclosure cases.

Hon. W. Douglas Baird, St. Petersburg:  If I can say in open court that I liked you better when you went with me on 559.715, then I guess I can say it here, too. 

Hon. Ray E. Ulmer, St. Petersburg:  I got pretty good, over the years, at predicting how a judge would rule on a particular hearing.  Judge Ulmer, though … his poker face was second to none.

Hon. Marion Fleming, St. Petersburg:  I lost a few I thought I should have won, but when you let my trial go until 6:30 pm and then ask about my Dad (who had been hospitalized), you’re OK in my book!

Hon. Carven Angel, Ocala:  A connoisseur of the paragraph 22 defect where the letter required additional, unspecified payments after the date of the letter to cure the subject default.  I’ll always believe we were right on this one, judge, and nobody has yet to tell us otherwise. 

Hon. Daniel B, Merritt, Sr., Brooksville:  Willing to rule contrary to how some of his colleagues in Hernando rule (which might seem common, but an element of “groupthink” definitely permeated the rulings in these cases to some degree).  I’ll always respect that.

Hon. Hugh Starnes, Fort Myers:  I didn’t get to Fort Myers too often, but it was often enough to feel like I got a fair shake – no matter what others may be saying on the internet.

Hon. James Thompson, Fort Myers:  A tough nut to crack on some of my pet arguments, but when you go with me on FHA and find “right to bring a court action” language is insufficient in the Par. 22 context, I know you’re trying to follow the law.  That’s all we ask.

Hon. Cecilia Wilhite, Bartow:  You respect me enough to refer a lawyer to me for a job … the feeling was mutual, judge.

Hon. John Adams, Orlando:  A scholar of the law, I enjoyed the banter we had about defense issues like 559.715.  Your encouragement was not unnoticed, judge.

Hon. Emerson Thompson, Orlando:  You have case law to support that argument?  You better!  Love, love, love!  Oh, and forcing the bank rep to actually have some legitimate training to lay the predicate for the business records exception to the hearsay rule … such a breath of fresh air.

Hon. Theotis Bronson, Orlando.  Interesting take on 559.715.  Enjoyed the debates.

Hon. Charles M. Holcomb, Viera:  Wish I could have gotten over there more.  We’d have had some fun, for sure!

Hon. Nancy Donnellon, Sarasota:  No explanation needed.  Without saying a word, I’m glad we understand each other now.

If you’re reading this and disagree with my assessment of any particular judge, please bear in mind … it’s not about one ruling in one case.  After all, every case has a winner and a loser.  It’s about an overall impression developed over a long period of time, many cases, and many hearings.  Plus, working to earn the respect of these judges has been a long (and ongoing) process.  Trust me, that matters.

Thank you again, judges.  I’ll miss you all. 

Mark Stopa

www.stayinmyhome.com

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Another 559.715 Appeal

The banks keep appealing when I get dismissals based on their failure to give the notice required by Fla. Stat. 559.715.

Are they going to win this one?

Ha!  Not when their opposing affidavit was brought “upon information and belief” and they failed to preserve their arguments for appeal.

Those procedural issues aside, I’m getting more and more confident on the merit of my position on 559.715.  I’m now citing cases from the Third Circuit, Fourth Circuit, Sixth Circuit, Tenth Circuit, and Eleventh Circuit (all of which are one step below the US Supreme Court), Florida’s Second District Court of Appeal, several other federal court decisions, and the orders of 44 different circuit court judges in Florida.

It’s called the “weight of the evidence,” no? 

Mark Stopa

www.stayinmyhome.com

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Circuit Court Orders as Authority? You Betcha.

Last month, a bank tried to prevent me from citing circuit court orders in a pending appeal, arguing these citations should be stricken.  I found their argument misguided (not to mention inappropriately personal), and I blogged about it here.

Well, as I anticipated, Florida’s Fourth District Court of Appeal denied the bank’s motion, allowing me to cite circuit court orders in an appeal as persuasive authority.

That blue box I regularly carry with me to court?  The circuit court rulings I circulate to try to convince other judges on novel issues of law in foreclosure-world?  Yeah … they’ll remain part of the arsenal. 

Mark Stopa

www.stayinmyhome.com

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559.715 Briefs with Akerman

I’ve been hot and heavy with 559.715 for years now … hundreds of wins on the circuit court level … and the issue is coming to a head in Florida’s appellate courts.

Here’s the most recent, fully-completed round of briefs between me and Akerman.

I might be biased, but I sure feel like I’m on the right side of this one.  To understand why I say that, check out their brief closely – surprisingly little to say, IMHO – and take a long look at the cases cited in my Reply Brief.  I include cases I have yet to previously disclose, including decisions from the Third Circuit, Fourth Circuit, Sixth Circuit, and Tenth Circuit, all of which go in our favor and all of which are just one notch below the U.S. Supreme Court.

Initial Brief  (by me)

Answer Brief  (by Akerman)

Reply Brief  (by me)

Mark Stopa

www.stayinmyhome.com

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Discord Among Judges in Foreclosure-Land

Earlier today, a friend asked me what one factor makes the biggest difference in winning versus losing a foreclosure case.  For me, that answer was easy – the facts of the case.  That’s an unsurprising answer, I’m sure, and it only makes sense – if the facts are on my side, my chances of obtaining a favorable outcome are much […]

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Look at Me? No; Look at All These Judges Who Agree!

Over the course of the past few years, I’ve litigated cases in a way that most lawyers rarely get to do.  You see, in most areas of law (personal injury, criminal law, etc.), the law is so well-established that when lawyers cite case law, they do so by referencing published appellate decisions that have existed for many years.  […]

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Service of Process … Upon the Secretary of State?

Did you know it’s possible to effectuate service of process on a defendant in a foreclosure case by serving the Secretary of State? It sounds bizarre, but yes, it’s possible. That said, the circumstances in which that is authorized are limited, and Florida statutes contain some specific procedures that must be followed to comply. Here’s […]

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Who Bears the Burden of Proof?

Everyone in foreclosure-world knows a foreclosing lender must prove it had standing when it filed suit.  Similarly, most agree that failure to comply with the face-to-face counseling requirement in an FHA mortgage requires dismissal.  But who bears the burden of proving standing at trial?  And who bears the burden of proving the lender gave the […]

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More Pre-Foreclosure Counseling Fun

Here’s my latest appellate court brief setting forth why face-to-face counseling is a condition precedent to acceleration and foreclosure in an FHA Mortgage. If this looks similar to the blog I just posted then, well, it is. Except this one’s in the Florida’s Fourth District Court of Appeal. I’ve now posted briefs with this argument, i.e. I have […]

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Banks Running Scared: New Arguments for FHA Appeal

Months ago, I explained in detail the basis of my belief that lenders must comply with HUD Regulations before foreclosing on an FHA Mortgage.  I even posted this appellate brief, setting forth a ton of case cites supporting my view.  I really liked the argument for homeowners at that point, and from what I can tell, the banksters […]

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Oral Argument: Paragraph 22

Here’s the video from an Oral Argument I had in Green Tree Servicing, LLC v. Milam, 2DCA Case No. 2D14-0660 on March 24, 2015. The argument dealt with the sufficiency of a default letter under paragraph 22 of the mortgage.  I got the case dismissed in the lower court, and the bank was appealing. Here’s […]

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Stop Citing the Judy & Astoria Letters: 2DCA Agrees!

Almost every day, when I’m arguing for dismissal of a foreclosure case based on the content of a paragraph 22 letter, I cite the handful of published, appellate decisions which exist on the issue.  Judy.  Astoria.  Samaroo.  Busquets.  Haberl.  Frankly, these decisions leave a bit to be desired in terms of laying out the facts, […]

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Paragraph 22 Notice: To Which Address?

Florida’s Fourth District Court of Appeal just issued a decision in Blum v. Deutsche Bank Trust Co., clarifying a foreclosing lender’s obligations under paragraph 22 of the standard, Fannie Mae mortgage.  No, this opinion didn’t deal with my pet argument regarding the content of the letter.  This time, the appellate court ruled the paragraph 22 notice […]

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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 […]

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Certification Requirement; Fla. Stat. 702.015

Effective July 1, 2013, the Florida legislature enacted Fla. Stat. 702,015, requiring all residential, mortgage foreclosure plaintiffs file a “certification,” under penalty of perjury, contemporaneous with the complaint.  Under the plain language of the statute, this certification must contain specific information, as set forth in the statute. This statute has been in place for nearly […]

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Gainesville Trial Transcript

Rumor has it that I’m the subject of gossip in foreclosure-land yet again, this time based on a judge in Gainesville threatening to hold me in contempt mid-trial, then ruling I was not allowed to present any evidence in the defense of the case. I make no commentary at all about what transpired.  None.  That said, I […]

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Expediency in Foreclosure Court

As courts throughout Florida strive to push through as many foreclosure cases as possible between now and the end of June (when funding for the senior judge system runs out), it’s as good a time as any to remind everyone of this quote from the Florida Supreme Court: The question of expediency is for legislative, […]

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Discovery Before Summary Judgment

Many litigants know the law generally requires discovery be complete before a summary judgment hearing.  There are exceptions, though, and failure to know them can leave you holding the bag. Here’s an appellate brief from a bankster, arguing my summary judgment victory should be reversed because discovery was incomplete, and here’s my retort, showing they’re […]

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