Sometimes you need to take a risk when you believe passionately enough about something. Mark Stopa who has broken ground several times in defense of foreclosures is among those lawyers who are challenging the Florida 3rd DCA. Tom Ice has joined him in complaining about PCA opinions from the 3rd DCA. It seems this appellate court is refusing to give opinions or guidance on key elements of the foreclosure suits filed by “strangers” to the action. And the way they are doing it is by issuing rulings that merely say “Per Curium Affirmed” (“PCA”) in favor of the banks. Thus the appellate panel avoids getting into the complex issues involved with the false securitization of mortgage loans. This District Court of Appeal is steadfastly avoiding giving their rationale, reasoning or basis for their ruling leaving virtually all lawyers within their district with zero guidance on what to tell their clients.
Specifically, lawyers are expressing themselves on the issue of standing, void assignments, notes not attached to complaint, and all the other defects in pleading and proof that are nonetheless rubber stamped by trial judges in favor of the banks. Virtually all other districts have analyzed at least some of these issues and given their opinions and guidance on factual and legal issues in dispute.
The third DCA has thus put itself in the unusual position of being reprimanded by the attorneys who practice in their district — not just for their actual rulings but more for their failure to give guidance on what they think in their district should apply as the logic and law of any case. I agree. With all the information in the public domain about fabrications, forgeries, back-dating, robo-signing and other practices that cast doubt on the credibility of bank claims for foreclosure, it is absolutely necessary for the courts of appeal to do their job.
The entire doctrine of stare decisis is based upon the premise that prior decisions can be used as precedent and guidance on future cases. By failing to provide the essence of their ruling, as though there were nothing to really discuss, the 3rd DCA is abdicating its responsibility to contribute to case precedent. it is also avoiding the possibility of reversal by a still higher court. But that is how the law is intended to work. By channeling difficult issues through multiple layers of courts, it is hoped that not only will a case be decided with finality, but that the reasoning of the courts be revealed and used as guidance for future cases.
Some years ago I was encouraging lawyers on the West Coast to bring de novo cases directly to the State Supreme Court because the Judges were refusing to rule on certain issues. The perceived risk of asking the Supreme Court to discipline the lower courts was seen as too much. There is still an issue that I think is upfront on the West Coast: in a nonjudicial state, it is my opinion that the states are applying the nonjudicial statutes incorrectly.
When an alleged “borrower” denies the basis of the nonjudicial sale of the property, the parties should be realigned, in accordance with age-old procedural rules.The party seeking affirmative relief (forced sale of the property) should be pleading the basis for their actions and the relief they seek. If the parties are not actually realigned then discovery should be wide open in favor of the borrower. Homeowners are forced to plead facts that are at best sketchy because only the opposition knows the true facts. Hence banks and servicers win cases they could never win in judicial foreclosure cases. To construe the borrower as the party seeking affirmative relief when their posture is purely defensive violates due process, in my opinion.
That means the beneficiary SHOULD plead and prove its case for foreclosure, once the borrower has raised defenses. Any other interpretation forces the borrower to assert facts that in most cases are only known by the opposition. Such an interpretation would and does mean that parties who illegally foreclose can and do prevail in non-judicial cases when they might not even survive a motion to dismiss in a judicial foreclosure. Due process demands that they be equal. The real purpose of nonjudicial foreclosures is to make uncontested foreclosures easier and less expensive to complete. In a contested situation, the courts are tilting the table toward the banks and creating a nearly impossible burden on alleged borrowers.
Many judicial cases create the same imbalance. A party makes the allegation that it is a holder of the note. They might even assert that they have the right to enforce. That might give them standing to survive a motion to dismiss. But it does not and should not bar the alleged “borrower” from conducting investigations and discovery to determine if those assertions are true or false.
The rebuttable presumption that a holder has the right to enforce is subject to scrutiny unless the allegation is that the foreclosing party is a holder in due course. The incorrect assumption that there MUST be an underlying transaction in which the note was purchased should not be raised to a presumption unless at trial there is no contest on the issue. Yet many judges will bar an alleged “borrower” from seeing the underlying transaction to test the veracity of the allegations even in discovery which then deprives the alleged borrower of his or her right to cross examine the evidence. For example, if the indorsement was forged, then the note is not a negotiable instrument, in which case no presumptions apply in favor of the banks or servicers.
Filed under: foreclosure |