Published Appellate Decisions in Foreclosure-World

I recently had occasion to list out some of the published appellate decisions in which I was counsel.  Now seemed like as good a time as any to share the list.

Some of these decisions didn't go my way, but I'm proud of the imprint I've left on the law in the foreclosure arena, fighting for consumers each step of the way!

Bear in mind that these are just the published decisions! 

 

DiGiovanni v. Deutsche Bank Nat'l Trust Co., 83 So. 3d 934 (Fla. 2d DCA 2012) (motion for extension of time did not waive challenges to service of process, reversing order denying motion)

Wells Fargo Bank, N.A. v. Taboada, 93 So. 3d 1073 (Fla. 2d DCA 2012) (verification requirements under Fla.R.Civ.P. 1.110(b))

Correa v. U.S. Bank, N.A., 118 So. 3d 952 (Fla. 2d DCA 2013) (first Florida court to reverse a foreclosure judgment on appeal and require dismissal on remand; also the first to clarify that the sufficiency of the evidence can be adjudicated for the first time on appeal)

Basantes v. Bank of America, N.A., 121 So. 3d 1195 (Fla. 5th DCA 2013) (reversing order denying motion to quash service of process)

U.S. Bank, N.A. v. Busquets, 135 So. 3d 488 (Fla. 2d DCA 2014) (paragraph 22)

Garcia v. BAC Home Loans, 145 So. 3d 217 (Fla. 5th DCA 2014) (reversing final judgment of foreclosure where lower court interlocutorily erred by denying motion to dismiss for lack of prosecution)

Holt v. Calchas, LLC, 155 So. 3d 499 (Fla. 4th DCA 2014) (explaining that dismissal is required where a lender does not prove compliance with paragraph 22, withdrawing a prior decision otherwise after I moved for rehearing as an amicus)

Boca Stel 2, LLC v. JPMorgan Chase Bank, N.A., 159 So. 3d 140 (Fla. 5th DCA 2014) (evidentiary hearing required on motion to quash)

Green Tree Servicing, LLC v. Milam, 177 So. 3d 7 (Fla. 2d DCA 2015) (substantial compliance in the paragraph 22 context)

Kipps Colony II Condominium Ass'n, Inc. v. Inland Assets, LLC, 181 So. 3d 492 (Fla. 2d DCA 2015) (circumstances where judgment can be vacated as void)

Deutsche Bank Nat'l Trust Co. v. Quinion, 198 So. 3d 701 (Fla. 2d DCA 2016) (explaining how to specifically deny a condition precedent under Fla.R.Civ.P. 1.120(c))

Brindise v. U.S. Bank, N.A., 183 So. 3d 1215 (Fla. 2d DCA 2016) (2-1 decision concluding the notice requirement of Fla. Stat. 559.715 is not a condition precedent to foreclosure, certifying the question to the Florida Supreme Court as one of great public importance)

Corrigan v. Bank of America, N.A., 189 So. 3d 187 (Fla. 2d DCA 2016) (en banc) (reversing final judgment of foreclosure, explaining how a lender must prove standing at the inception of the case, not merely at the time of an amended complaint)

Deutsche Bank Nat'l Trust Co. v. Hagstrom, 2016 WL 3926852, ___ So. 3d ___ (Fla. 2d DCA 2016) (Fla. Stat. 559.715 in the foreclosure context)

Schuman v. Wells Fargo Bank, N.A., 198 So. 3d 1160 (Fla. 1st DCA 2016) (reversing final judgment of foreclosure because trial court did not give borrower a full and fair opportunity to present her case)

Nationstar Mortg, LLC v. Summers, 198 So. 3d 1162 (Fla. 1st DCA 2016) (Fla. Stat. 559.715 in the foreclosure context)

Young v. Nationstar Mortg., LLC, 2016 WL 5404108, ___ So. 3d ___ (Fla. 2d DCA 2016) (reversing summary judgment of foreclosure because lender did not disprove borrower's affirmative defenses or show them to be legally insufficient)

Bank of America, N.A. v. Siefker, 2016 WL 5939738, ___ So. 3d ___ (Fla. 2d DCA 2016) (Fla. Stat. 559.715 in the foreclosure context)

JP Morgan Chase Bank, N.A. v. Ostrander, 2016 WL 6393753, ___ So. 3d ___ (Fla. 2d DCA 2016) (requirements for a defendant to obtain summary judgment based on a lender's failure to comply with paragraph 22)

Jacaranda, LLC v. Green Tree Servicing, LLC, 2016 WL 6476296, ___ So. 3d ___ (Fla. 2d DCA 2016) (trial court should have vacated default final judgment where the motion for default was not served on counsel despite the existence of a quiet title suit over that same property)

 

Mark Stopa

www.stayinmyhome.com

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My Statement Regarding Negative Press

I've spent the last 9 years of my professional life defending homeowners in foreclosure cases throughout Florida.  It's not only my career; it's my life's work.

Acting as a voice for consumers through one of the most trying and painful experiences of their lives against corrupt financial institutions – a true David vs. Goliath battle – has been one of my life's greatest joys.  I wouldn't change it for anything, and, God willing, it's what I will be doing for many more years to come.

That said, make no mistake:  what I do is extremely difficult.

Much of the difficulty is pragmatic.  You see, when I'm representing people in foreclosure, I'm defending people who, almost by definition, have little or no money.  These clients typically cannot afford to pay lawyers much of anything, much less by the hour.  The only way to help such homeowners is to charge a low fee.  But the only way I can run a business (approx. 30 staff, 4 attorneys) in exchange for such a low fee is to have a high volume of cases.

I have always been transparent about this dynamic.  It's explained in detail in my firm's standard fee agreement.  Most clients understand, given this dynamic, that we can't hold their hand at each step of the process.  To borrow a phrase from a colleague, my fees are about 25% of what most lawyers charge … which is like somebody getting a $400.00 room at the Ritz Carlton on Priceline for $100.00 and then complaining that they did not get a personal concierge and an upgraded room that somebody who paid $10,000 for the presidential suite received.

Most clients understand this dynamic and are absolutely wonderful.  To all such clients, I appreciate you more than you'll ever know.

Unfortunately, when you represent thousands of clients over a period of years, it's impossible to please everyone 100% of the time – especially folks who are facing foreclosure and, in some cases, an uncertain future.

Make no mistake, I'd put my work product up against anyone's.  Over the years, I've won about half of my trials – a ridiculously high win percentage if I can say so myself (remember, it's not like my clients paid their mortgage), particularly given how appellate courts have repeatedly morphed the law in a way that facilitates foreclosure (the elimination of 559.715 as a defense, “substantial compliance” for paragraph 22, the “boarding process” exception to the admissibility of business records, the virtual elimination of the statute of limitations in the foreclosure context, the Ortiz presumption, etc., etc.).  All told, I'm approaching 1,300 dismissals – that's 1,300 times where a lender filed a foreclosure lawsuit against a Florida homeowner yet that case ended with a dismissal instead of a foreclosure.  (For some context, I don't know anyone else with over 200 such dismissals.)

I've also been counsel in numerous appellate court decisions.  In the process, I've often felt like the lone voice of Florida consumers, hoping to change the law in a way that will help everyday Floridians (often without payment, or strictly on a contingent fee, even as my opponents are typically paid by the hour).  Some such decisions have been favorable, and some have not, but I can't imagine any lawyer working more tirelessly than I have to create good law for consumers in the appellate arena.

All of this said, on many files, I couldn't stop a foreclosure.  Sometimes, there just aren't any defenses to present.  Sometimes there are, but that judge just didn't agree on that day.

Most clients understand and appreciate the effort that goes into what I do, regardless of the result obtained.  Again, for all of you, I appreciate you greatly.

Unfortunately, I've learned it's impossible to please everyone 100% of the time.

I am not going to respond in detail to the allegations two clients have recently brought against me.  Suffice it to say I disagree, am confident I acted professionally and appropriately, and am confident the truth will emerge.

The other, enormous difficulty I face in representing consumers is the system in which I operate.  You see, many judges, if not most, are fair-minded.  Some judges, however, simply don't like the concept of foreclosure defense.  Some such judges will actively help bank lawyers and/or search for ways to facilitate foreclosure.  This problem was no doubt exacerbated, if not understandable, when the Florida legislature tied pay increases of court personnel to the courts pushing foreclosure cases through the system.  When viewed in that vein, it may be easy for some to view me as the “enemy,” as I'm the one who is preventing foreclosure cases from being pushed to judgment.  Yet all I'm doing is ensuring consumers get treated fairly against financial institutions that are notorious for treating them otherwise.

I'm proud of the work I've done in Florida courtrooms.  Am I passionate, fiery, and aggressive at times?  Absolutely.   Have I often perceived that is what is necessary to ensure consumer rights are protected?  You betcha.  Do I believe I've acted professionally in the process?  Yes.

Some time ago, a judge was unhappy when I moved to disqualify him after he gave legal advice to the bank's lawyer (my opponent) in open court.  He responded to my motion to disqualify by throwing me out of the courtroom, disqualifying himself from all of my cases, and, most recently, complaining about my conduct.  Though disappointing, I'm confident I acted appropriately in that instance; in fact, faced with the same scenario in the future, I'd do the same thing.

In the process of him complaining about me, that same judge also noted how a different judge removed me from court mid-trial (again, when I was fighting for a homeowner).  Yet the judge presiding over that trial never complained.  In fact, I had four trials after that time with that judge, and not only did all four proceed without incident, but all four cases were dismissed.

Suffice it to say anyone who reads negative press about me should bear in mind two things:

1.  The foreclosure process in Florida courts is not friendly to consumers.  If you don't have a lawyer who will fight for you, chances are high that you'll get steamrolled.

I fight.  Not everyone likes that, but ask any judge or bank lawyer who they'd hire to defend their foreclosure (if they had one on their own home) and I bet many of them would choose me.  In fact, many already have.

2.  I'm not perfect.  But I'd put my body of work in this field, on both the trial and appellate levels, up against anyone.  Frankly, I shudder to think about what the foreclosure process would look like if I weren't involved since 2008.  That said, to anyone I may have let down along the way, I can say with all sincerity that I've tried my very best.  

All clients should remember to friend request me on Facebook, a forum which is more private and sometimes easier for me to post about foreclosure-related issues.

 

Mark Stopa

www.stayinmyhome.com

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Oral Argument: Summary Judgment Requirements

I've never seen an Oral Argument where the panel informed the parties that they were going to reverse the order on review.

This one – a recent argument before the Second District discussing the lender's obligations when seeking summary judgment in a foreclosure case – might be as close as they'll ever come. 

Mark Stopa

www.stayinmyhome.com

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Face to Face Counseling: The Victory is Coming

About 10% of the cases I have involve an FHA mortgage.  I like these cases, because I believe the express terms of these mortgages require the lender provide face-to-face counseling before accelerating and foreclosing.  The operative regulation is contained in 24 C.F.R. 203.604, and this is an issue I've briefed and argued countless times and discussed on this blog.

Unfortunately, no Florida court has ruled whether the face-to-face counseling requirement of 24 CFR 2.03.604 is a condition precedent, such that the lender bears the burden of proof at trial, or an affirmative defense, such that the borrower bears the burden of proof.

On Friday, Florida's Fifth District decided Diaz v. Wells Fargo Bank.  The decision doesn't decide the issue, as the mortgage in that case wasn't an FHA mortgage.  On that fact pattern, unsurprisingly, the Fifth District ruled HUD Regulations did not act as a condition precedent.  In so ruling, however, the Fifth District strongly hinted that it considers HUD Regulations a condition precedent in an FHA Mortgage.  Check out this language, quoted from the opinion:

Unlike scenarios where conditions precedent are ascertainable on the face of a written contract, such as compliance with paragraph twenty-two of the mortgage or where a promissory note specifically incorporates the HUD Regulations into its terms, it is by no means clear that the HUD Regulations applicable to federally insured loans apply to the instant loan and litigation.

For years now, I've been arguing HUD Regulations are a condition precedent in an FHA Mortgage, just like paragraph 22 is in the standard, Fannie Mae mortgage, because the mortgage terms expressly say so.  Given this sentence, it seems clear to me that the Fifth District agrees.  So don't give up on those FHA cases, folks.  I'm confident some good law is going to emerge here, and soon.

Mark Stopa

www.stayinmyhome.com

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Jurisdictional Brief on 559.715 in Florida Supreme Court

As I recently explained, the Second District issued a published decision certifying the question of whether Fla. Stat. 559.715 is a condition precedent in a mortgage foreclosure case to the Florida Supreme Court as an issue of great public importance.

When that happens, the Florida Supreme Court doesn’t automatically take the case.  Instead, the judges meet and decide whether to do so.  In this situation, i.e. when the DCA certifies a question to the Court for review, parties aren’t required to file a brief on jurisdiction (and, depending on who you ask, aren’t supposed to file such a brief), as the Court can simply review the published opinion and decide whether to take the case.

But you know me. 

The Florida Supreme Court is currently deciding whether to take this case … on 559.715, the issue I’ve worked so hard on for so many years.  As the Court makes this decision, there are some things I just have to make sure the judges know.  So I am filing this Jurisdictional Brief, my final effort to get them to take the case.

I doubt the Florida Supreme Court has seen many briefs like this, setting forth my own experiences without case or record citations.  I can see the banksters trying to argue it’s not an appropriate filing.  But it’s an honest filing, and at least now, no matter how the Court rules, I’ll know I emptied all the bullets in the chamber on this issue. 

Mark Stopa

www.stayinmyhome.com

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Judge as Impartial Arbiter

This case was over.  Deutsche failed to meet its burden of proof, and an involuntary dismissal was required.  The presiding judge knew it and admitted as much yet refused to rule accordingly.  Instead, the court took a recess, went to its Chambers, sua sponte conducted a Google search to procure the missing evidence for Deutsche, resumed court, handed the internet printout to Deutsche, suggested Deutsche re-open its case, admitted the printout into evidence over objection, and used that internet printout as the basis for its ruling. 

Those facts sound impossible to believe, right?  That couldn’t happen in a Florida courtroom, could it?  Unfortunately, that’s an excerpt from the appellate brief I’m filing today.

Some will question my paraphrasing of the facts, so take a look at the brief for yourself:  it includes a verbatim cut and paste of the trial transcript reflecting these events.

I’ll refrain from commenting about the propriety of these events here.  You can read the brief and see what I think of this case.

Mark Stopa

www.stayinmyhome.com

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"Equity" in Foreclosure Cases

On February 5, 2016, Florida's Second District issued a written decision in Corrigan v. Bank of America. The decision can safely be described as one of the highlights of my legal career. So why on Earth am I moving for rehearing? Well, read on ...

First off, what is most notable about the Corrigan decision is how the Second District ruled en banc. You see, most appeals are adjudicated by a three-judge panel. Here, by contrast, all 16 judges on the Second District joined in the decision, and all 16 judges agreed with my argument that the trial court erred by entering a foreclosure judgment where the lender failed to prove standing at the inception of its lawsuit. Where all 16 judges agreed, Corrigan is a wonderful illustration of the law on this issue, at least in Florida, and I'll be using it to my advantage in many future cases.

So ... With a win like this in hand, why have I been spending much of the past two weeks drafting a Motion for Rehearing? Well, I'm a bit troubled by the content of the second concurring opinion. In it, 3 of the 16 judges explain, in essence, how they ruled in my favor because the law required that they do so, but if it were up to them, they would not have done so because they did not believe this result to be "equitable." In assessing the "equities" of the case, these judges note how Corrigans hadn't paid their mortgage, but don't set forth any "equities" favoring Corrigans. The concurring opinion goes on to assert that the law should be changed, based on these judges' perception of what is "equitable," such that foreclosing lenders need not prove standing at the inception of a lawsuit.

After much thought and deliberation, I saw this as a unique opportunity to file this Motion for Rehearing. This one is a doozy, folks. It's much of what I have always wanted to say in foreclosure-world but hadn't had the forum to do so. With this decision being made en banc, I now have that chance.

My motion for rehearing squarely addresses the concept of "equity" in foreclosure cases. I talk about clients who are elderly or handicapped. I discuss securitization, dual-tracking, and bank-induced default. I explore the extent to which fairness should be part of the decision-making process in foreclosure cases (it shouldn't be) and question the extent to which subjective notions of equity have become justification to change the law in favor of lenders in a variety of contexts.

The next time a bankster lawyer or a judge asserts foreclosure is an action in "equity," as if that allows the judge to decide the case partly based on some nebulous, subjective notion of fairness, remember my Motion for Rehearing in Corrigan. Remember how the Florida Supreme Court has explained that foreclosure cases cannot based on a judge's subjective perception of equity. Remind the court that foreclosure may be an action in "equity," but that means only that the plaintiff did not sue for money relief so there is no attendant right to trial by jury - not that the judge can subjectively decide what he/she thinks is fair. The judge wouldn't inject fairness into the proceeding where the homeowner is sick, elderly, or handicapped, so it should not be a basis to rule for lenders merely because the homeowner hadn't paid his/her mortgage.

Years from now, after the foreclosure crisis has long since ended, this Motion for Rehearing is how I'd like to be remembered. This is my legacy. I didn't always win, but I did everything possible to convince judges to leave their biases by the wayside and follow the law.

Mark Stopa

www.stayinmyhome.com

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559.715 Headed to the Florida Supreme Court

Today has been seven years in the making.

Thousands of hearings.  Countless arguments throughout Florida.  51 judges who have agreed, many others who have disagreed.

The issue:  Is the notice requirement set forth in Fla. Stat. 559.715 a condition precedent in a mortgage foreclosure case?

Today, a 2-1 panel of Florida's Second District Court of Appeal ruled against me, concluding the statute does not operate as a condition precedent.  Here's a link to the opinion.

Obviously, this ruling is not what I wanted.  However, this is not the end of this issue.  Far from it.  The court is obviously divided, as evidenced by Judge Khouzam's strong, well-reasoned dissent.  Better yet, the Second District certified the question to the Florida Supreme Court as one of great public importance.  As a result, so long as the Florida Supreme Court accepts the case (which seems likely), this issue will be decided by Florida's highest court.

Is Fla. Stat. 559.715 a condition precedent in a mortgage foreclosure case?  The battle wages on.

In the meantime, don't give up, folks.  I sure ain't.  And while I can't guarantee an outcome, one thing I know for sure:  when that Oral Argument takes place in Tallahassee, probably late in 2016, nobody in the room will have worked harder on this issue or be more determined than me.

Mark Stopa

www.stayinmyhome.com

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