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How to Beat Your Foreclosure Just by Showing Up

Showing Up

by Mike on May 31, 2011

How many people have lost their homes, unlawfully, because they just didn’t bother to fight their foreclosures? There’s no way to know for sure, but it’s got to be at least a million. But what about the flip side—how many people won their foreclosure fight just because they kept showing up, time after time, until the other side crumpled and gave in?

Showing Up—When the Other Guy Doesn’t

At least 150,000, possibly as many as 300,000. And that’s just using the numbers of cases that have been dismissed or will be dismissed due to the collapse of the Law Office of David J. Stern. Some of those cases may have looked hopeless at the beginning—but those homeowners who stuck it out, demanded proof, and survived until March 31, 2011, more often then not got their cases dismissed.

The Trend: Borrowers Win Foreclosure Appeals

What’s the overwhelming trend in foreclosure cases in the last two years? Borrower wins. Just look at these cases, all from 2009 or later, and notice the trend:

The trend? Borrower loses in the trial court. Borrower doen’t give up. Borrower appeals. Appellate court says: Borrower, you’re right, and the court was wrong. No matter how bad your experience in the trial court, you simply cannot win on appeal if you don’t even try. It’s just like Wayne Gretzky said: “You miss 100% of the shots you don’t take. ”

Showing Up for an Appeal

Now take a look at that last case. Under that case name, it says what lawyers appeared for each side. Notice who appeared for the bank: nobody. No brief filed. The bank didn’t even show up!

Here’s the biggest new trend in foreclosure law: banks aren’t even trying to protect their wins on appeal. They admit error, or don’t even brief the case. From the borrower’s perspective, this means winning because the other side doesn’t even show up.

William Roper noticed this trend of banks just giving up instead of fighting their appeals. He’s begun to collect a list of decisions where foreclosure judgments—cases where the bank won and the borrower lost in the trial court—were overturned on appeal because the bank just gave up.

The Court of Appeals for the Fifth District in Florida overturned two foreclosure judgments this week by confession of error:

Gillen v. Federal National, No. 5D09-4194 (May 27, 2011)
http://www.5dca.org/Opinions/Opin2011/052311/5D09-4194.op.pdf

Blumenfeld v. Fifth Third, No. 5D10-3638 (May 27, 2011)
http://www.5dca.org/Opinions/Opin2011/052311/5D10-3638.op.pdf

There is not any useful case law to cite from these decisions, though the Appellant’s Brief in each case might be worth a look.  But the decisions are reflective of the increasing tendency for the foreclosure mills to abandon appeals.

Some earlier examples:

Frost v. LaSalle Bank, No. 4D09-2668, 46 So. 3d 173, 2010 Fla. App. LEXIS 16269, 35 Fla. L. Weekly D 2370 (Fl. App. 4th Dist. 2010)
http://www.4dca.org/opinions/Oct%202010/10-27-10/4D09-2668.op.pdf

Mera v. EMC Mortg. Corp., Case No. 2D09-1826, 21 So. 3d 921; 2009 Fla. App. LEXIS 18391; 34 Fla. L. Weekly D 2494 (Fl. App. 2nd Dist. 2009)
http://www.2dca.org/opinions/Opinion_Pages/Opinion_Page_2009/December/December%2002,%202009/2D09-1826.pdf

Benoit v. Bank of New York, No. 4D09-898, 18 So.3d 731 (Fl. App. 4th Dist. 2009)
http://scholar.google.com/scholar_case?case=3924095567885385496

Challenger Investment Group, LC v. Ebony & Ivory, LLC, No. 3D07-1113, 958 So.2d 1011 (Fl. App. 3rd Dist. 2007)
http://scholar.google.com/scholar_case?case=2714368737097287550

For the borrower, the important lesson is this: don’t stop fighting, even if you think you’ve lost. Keep showing up. Keep trying. Keep moving up the chain and seeking relief from a higher authority. You never know when you just might win.

( Photo Source / Photo Rights )

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