FORECLOSURE DEFENSE AND MEDIATION

Home For Sale Real Estate Sign in Front of New House.

Pasco and Pinellas County Foreclosures

These are foreclosure cases in the sixth judicial circuit, including New Port Richey, Dade City, Clearwater, and Saint Petersburg Courts. I review often with homeowners, many of whom have been in foreclosure after years of having been represented by the Stopa Law Firm that had to file Bankruptcy and cease representation of them.

These cases all involve legal and factual issues that should be used to a homeowner’s advantage. Although there are not an excessive number of issues with merit, there are some that are worth presenting to a Court, to your foreclosure judge. For Example, a common trend is adding costs and fees of previously dismissed foreclosure lawsuits (even when wrongfully filed) to the new principal balance. Be careful not to miss this issue, as it may be labeled on your payment history as “insurance disbursement” or “escrow disbursement” or some other generic name. But if you compare the amount to, for example, the cost of filing the previous foreclosure lawsuit, you will find the amounts match. You may find such generic charges on the payment history that were costs of service of process. Yes, this happens, even from cases in which the previous lawsuit should have never been filed and was quickly or eventually voluntarily dismissed by the bank.

What do you do with Defenses to Foreclosure?

A foreclosure defendant or homeowner in foreclosure should use a defense as leverage, as a hammer to shape the principal balance into something manageable. If you have an income that can pay for what the house is currently worth, you should push for a principal reduction. You should, as a homeowner, push for all options that you can be content with before heading to trial. Simply litigating cases drives up the cost of your house. Yes, you eventually have to pay the bank’s attorney’s fees and costs, so getting to the point sooner rather than later is to the benefit of homeowners’ in foreclosure.

The law in Florida has largely erased the statute of limitations defense in foreclosure cases and narrowed other defenses such as standing and those based on conditions precedent. With Mark Stopa’s litany of cases regarding conditions precedent of Florida Statute Section 559.715 and the default or demand letter failing to enumerate the caveats of the acceleration paragraph of a given mortgage, our Florida District Courts of Appeal have weakened and, in most cases, destroyed these defenses as either not being a condition precedent to foreclosure, not applying in foreclosure cases or applying a “substantial compliance” standard. Mark Stopa has helped homeowners when judges have erroneously entered summary judgments in favor of banks. This is something judges should rarely do because most cases contain a “genuine issue of material fact,” including foreclosure cases. Some Mark Stopa cases are as follows:

 

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, 205 So. 3d 790 (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, 201 So. 3d 811 (Fla. 2d DCA 2016) (Fla. Stat. 559.715 in the foreclosure context)

JP Morgan Chase Bank, N.A. v. Ostrander, 2016 WL 6393753, 201 So. 3d 1281 (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, 203 So. 3d 964 (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)

Another case in which Brendan R. Riley appeared as counsel is the Rivera case in which Stopa Law Firm and Stay In Your Home, PA helped reverse the bank’s summary judgment based on a failure to prove that it sent the pre-lawsuit, acceleration letter. This letter is also called the demand or default letter that is normally a condition precedent to residential foreclosure cases.

If we can be of assistance in your foreclosure case, please do not hesitate to contact our New Port Richey based office at 727-312-3748 or email Brendan R. Riley at BRR@BetterCallBrendan.com.