Um, Excuse Me Your Honor, I, We, You, Screwed Up – Shapiro Fishman Foreclosure Mill: Confession of Error to the 4th DCA
Now this is interesting… (See Docs below)
And here is some commentary by James M…
This is a small victory in this case, but not in the overall foreclosure war. The enemy has run away to fight again another day.
By admitting the lower court made an error, the Appellee/Plaintiff (foreclosure mill) is attempting to avoid, at all cost, filing the answer brief ordered by the Appellate court’s order of 8/12/2010.
This is because the Appellee/Plaintiff is attempting, at all cost, to prevent the DCA from entering a written opinion which delves into the very pertinent issues before the court.
This is an issue that affects most of us. The current illegal tactics employed every five minutes in the rocket docket courts: The Plaintiff pleading standing by way of an assignment of mortgage, often with a lost note count – Then moving for a summary judgment on the record – and then during the summary judgment hearing magically producing the note with a sparkling fresh “endorsement” – while simultaneously switching, on the fly from the plead standing (by assignment) – to a new standing by way of an endorsed negotiable instrument, never been seen in the case before that instant.
This is, as the Appellant/Defendant’s Initial Brief points out, completely against the rules.
Notice of all EVIDENCE in support of the pleadings must be filed in the record 20 days before the hearing, as required under Fl.R.Civ.Pro.1.510(c).
No, I am not a walking rule book, this issue came up in an email with another hamletter about 5 hours ago, who had the same tactic puled on her this afternoon at her summary judgment hearing.
The endorsed version of the note should have been filed 20 days before hearing, along with a notice of finding he original note and dropping the lost note count if plead, and probably a motion to amend pleadings to incorporate the endorsed version of the note or a motion for substitution of the same. This is how it should be done.
Magic tricks that involve popping live rabbits or new notes out of top hats belong in the circus, not he court room.
This is so so so wrong, so so so unfair, so so so against the rules that the Appellate court, if forced to decide between the parties would probably have issued a very strongly worded opinion, carefully thought out and supported, spanking the Appellee/Plaintiff (foreclosure mill).
The foreclosure mill is making a tactical retreat to prevent a strong written opinion on this issue. They don’t mind being send back to lower court for trial, or even losing this action entirely and having to pay the defendant’s attorney fees.
Why? Because even if the case against Plaintiff A is dismissed, with prejudice, they can re-execute a “good” assignment to Plaintiff B and re-file.
Their entire loss, in the worst case is the other sides attorney fees and cost to re-file, plus time. Their best is to be remanded back to the lower court for prep and trial.
By confession of error it allows the Appellate court be lazy, which on the whole they are. If an appellate court can find a way not to create new law, not to rule on the issues it will. This confession of error allows the Appellate Court to enter a ruling simply stating that Appellee admits error, therefore vacating the summary judgment and returning the case to the lower court for further proceedings.
The court gets to avoid the issues and the Appellee/Plaintiff gets to doge the bullet. The Appellate court gets to be lazy, and the rest of us are left without a written opinion on these fundamental materiel issues that is so important to the rest of us.
What Appellee is trying to avoid, AT ALL COSTS, is to have the Appellate Court delve into this tactic, spank them and outlaw such practice in strong language.
This is probably NOT going to be victory for the rest of us, or even the foreclosure lawyer in the lower court for the following reasons:
(a) The ruling may be very simple: Appellee confesses error, summery judgment voided, remanded to lower court for further proceeding. (Probably in about as many words.)
(b) The lower court lawyer does not get a dispositive ruling which means he has exhausted time and effort on an appeal only to be back in lower court arguing the same case. Against a confused theory about how Plaintiff gained standing, and having to re-argue if the standing the Plaintiff is proceeding on has to be plead or can be switched mid stream without amending the pleadings.
(c) Probably left without a strong ruling if plaintiffs failure to prove standing when commencing the action is cured by the magic trick note from the hat act, and if that means plaintiffs pleadings have to be re plead.
(d) If the written opinion does not delve into the issues of law he argued, he cannot use the opinion in his other foreclosure cases. (Neither can we)
Which is what is really going on. The Confession of Error is an attempt to prevent the Appellate court from going to the trouble of issuing a written opinion that would gladden the harts of pro se and foreclosure attorneys throughout the state.
The attorney of record, when he wins, which he will because of the confession of error, will not go back to ask for a written opinion on the issues. Even though he want’s the opinion for his other cases, he won’t because rehearing might possibly undo the ruling and harm his client in this case.
SO – Will some attorney somewhere PLEASE quickly file an Amicus Curiae brief asking the court for a written opinion on the issues presented, because the matters are so essential to the current controversy in rocket docket courts.
With a confession of error you can’t exactly be on the losing side. Therefore if someone files an Amicus Curiae brief asking for a written opinion, I suspect the court would look favorably on it, for there is nothing to decide.
It only needs a written opinion to be drafted by some learned clerk and signed off on by the judges.