Focht v. Wells Fargo Bank, N.A.: Motion for Rehearing

Supreme Court

Focht v. Wells Fargo Bank, N.A.: Motion for Rehearing

By Mark Stopa

I’m very surprised to see the Second District – which has always, in my view, been fair and even-handed in the foreclosure context – propose to change established law for the sake of expediency.  I’m particularly surprised to see it do so without mentioning stare decisis, any case law about the circumstances in which the law is changed for expediency’s sake, Fla. Stat. 702.015, or Rule 1.110(b).  As a result, though I was not counsel up until this point, I’m pleased to file this Motion for Rehearing in the Second District.

Copy of the motion below…

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4closureFraud.org

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Focht v. Wells Fargo Bank, N.A.: Motion for Rehearing

Comments
8 Responses to “Focht v. Wells Fargo Bank, N.A.: Motion for Rehearing”
  1. bobhurt says:

    By the way, I explained my reasoning on the Focht opinion in this article:
    http://lixe.org/Focht%20Opinion%20Hints%20at%20Mortgage%20Attack%20Strategy.pdf

    Debbie did not like it, but I didn’t write it to hurt her or to come off as negative. I want people to avoid losing their properties by understanding these principles:

    1. Defendants of foreclosure of valid mortgages virtually ALWAYS LOSE because they cannot deny the essential truth that they obtained a loan, signed the note and mortgage, breached the note, and must forfeit the collateral or renegotiate the deal.

    2. Mortgagors who ATTACK LENDERS and their agents for INJURING THEM virtually ALWAYS WIN, and sometimes their win includes keeping the house, getting a new loan at a much lower balance and rate, receiving a monetary offset of the amount they owe, or receiving compensatory and punitive damages, sometimes far in excess of the value of the house.

    I posted the article to scribd.com, but apparently Debbie got scribd to remove it. However, that and other articles repose at http://lixe.org.

    And take note that I don’t charge anybody any money for my efforts to educate them about the realities and benefits of MORTGAGE ATTACK in lieu of foreclosure defense.

  2. Bob Hurt says:

    Mark, I sympathize and empathize with Debbie’s plight, for the lenders have badgered and harassed her for years. On the other hand, if they have a legitimate reason for foreclosing, why should the court allow nitpicking details impede the effort? If Debbie owed YOU the money for several years, wouldn’t YOU want the court to sell the mortgaged collateral to allow you to get your money back? As the 2nd District panel pointed out, Debbie now gets to keep her house for a few more months while the plaintiff corrects the standing problem and refiles the foreclosure, and next time, the bank will FINALLY get the house sold so it can collect its money.

    THIS case is NOT the place to try the issues of predatory lending that caused the financial crisis. But it was a perfect opportunity for Debbie to get her mortgage examined, something you could still make happen if you weren’t so busy whining about the certification of the question of whether standing is required to foreclose. I told Debbie to get her mortgage examined a while back and she claimed she couldn’t afford it. But had she done that and had the examiner discovered causes of action, you could have a far different case on your hands, one that might net results like those in West Virginia’s Brown v Quicken Loans case ($3.5 million punitive damages). You have the perfect chance, but you use the WRONG STRATEGY.

    As to certifying the question, I consider it valid. The court could SANCTION plaintiffs for bringing a defective case into court. And Florida could do what New Jersey has done: REMOVE the requirement for standing in foreclosures. WHy? Because the foreclosure victim has NO QUESTION WHOM TO PAY. The mortgage and notices clearly prescribe that the mortgagor should pay the servicer. That should mean the servicer can enforce the mortgage, shouldn’t it? What does it matter who has standing so long as the defendant obtains protection from the court against future efforts to re-collect the same debt?

    • BOBBI SWANN says:

      Why do we constantly have such ‘idiots’ posting on this site? In case someone missed out on the news, the examination and extrinsic fraud that was going on was settled in a case and everyone that submitted to have their mortgages examined were paid out in a hefty (ha-ha) sum of $300. So much for having your mortgage examined!!! Maybe, just maybe, that’s why we have such attorneys as Mark Stopa to defend mortgage foreclosure cases for defendants. Oh, and we also have such things as Rules of Procedure in the state of Florida aside from all the statutes of law. It’s not just the principal of owing someone, it’s also the letter of the law that must be followed. Final note: I cannot find anywhere that states New Jersey removed the requirement for standing…..

      • bobhurt says:

        Swann, you don’t understand the difference between a comprehensive mortgage and appraisal examination and a mere audit, nor in filing a winning lawsuit against a lender for breach of contract and tortious conduct, and responding to a foreclosure lawsuit with a losing array of effete arguments that don’t challenge the essential validity of the mortgage. ALL those people who got the government endorsed loan audit wasted their efforts because it did not result in a lawsuit against the lender for the abuses discovered. If you want to see what a good mortgage exam and timely litigation can do, look at this case decided for the second time at the end of June last.

        http://wvrecord.com/news/s-3962-state-supreme-court/261610-quicken-loans-ordered-to-pay-3-5m-in-mortgage-case-appeals

        The borrower won this because of a mortgage examination and competent attorneys:
        $3.5M punitive damages, $116K compensatory, $875K fees and costs

        How’s that for an “idiot” posting?

        Mark Stopa made good points in his pleading above, but it does not take the place of AGGRESSIVELY demanding sanctions against foreclosure plaintiffs and their counsel who come to court with a half-baked case. The court should punish them so badly they NEVER do it again. Florida courts need to put a few banker /lawyer heads on pikes for such stunts as Focht’s opponents pulled. THEY are the idiots you should complain about.

    • Stupendous Man - Defender of Liberty, Foe of Tyranny says:

      Nitpicking details?

      Florida has an open courts doctrine, as do many other states. From the Florida Constitution:

      “SECTION 21. Access to courts.—The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.”

      Expressio unius exclusio alterius, or the express mention of one thing excludes all others, is applicable.

      The courts are open to every person for redress of an injury. The courts are not open to a person that has not been injured. This is basic, foundational, and quite simple really. I’m unclear how you’re confused on this.

      I’ve seen you and Mr. Bradford reference the Brown v Quicken case in several forums in the past several weeks. Were either of you involved in that case? If so how did such involvement aid in the final determination?

      • bobhurt says:

        WHo are you to pose such a question or expect an answer, and what does my or Bradford’s involvement in any case have to do with the fundamental principles I have preached to mortgage victims for over 3 years?

        The point is: EVERY FORECLOSURE DEFENDER MUST GET THE MORTGAGE EXAMINED and then attack the lenders for the causes of action underlying the mortgage. For a lawyer to take the defendant’s money without doing that as the first activity amounts to legal malpractice, in my opinion, if failure to do so results in the client’s loss of the house to foreclosure, and if salient causes of action existed for which a counter action could have prevented the loss of the house.

        I don’t believe Mark Stopa has EVER performed a comprehensive mortgage examination OR hired an expert like Bradford to do it. And that’s why he statistically NEVER gets the house free and clear or compensatory and punitive damages for foreclosure victims. Note that in his pleading’s item 26 above he claimed “The undersigned has litigated many hundreds of foreclosure lawsuits throughout Florida over the past five years.” He probably tells clients proudly that he has “won” many cases because of temporary dismissals. He probably calls the 2nd DCA Focht opinion a win. It isn’t. It is merely a temporary reprieve, which the judge pointed out. She will eventually lose the house when the owner of beneficial interest corrects discrepancies and files a new foreclosure complaint.

        Like I said: legal malpractice, IMO.

  3. neidermeyer says:

    Compare and contract with Stern … Stopa is what the bar should be extolling.

  4. BOBBI SWANN says:

    WOW! That was excellent!!! It’s like he is bashing the court, but in a very nice and professional way. Way to Go Stopa. Keep us updated.

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