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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