Tampa Lawyer: 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.