COMMENT: Reblogged from Garfield/Livinglies
By William Hudson
2015. Lewis v USBank-Motion-for-Rehearing
Miami foreclosure defense attorney Bruce Jacobs accomplished what few attorneys have the commitment, perseverance and sheer guts to accomplish. However, he did so knowing he had a good criminal attorney in his corner- in case the court decided to sanction him, file a Florida Bar ethics complaint or possibly put him in jail. Jacobs is partners with former prosecutor and criminal defense attorney Court Keeley, so at least he would have someone to post bail.
First, Jacobs was able to successfully petition the Fourth District Court of Appeal to issue an opinion about a case it had already affirmed without providing an opinion, and then proceeded to persuade the court to reverse its ruling. If more attorneys would go to the mat for their clients like Jacobs and Keeley did- we might see more homeowners prevailing.
Bruce Jacobs, of Jacobs Keeley, reversed a per curiam affirmance (or PCA) and deserves a shout-out for his victory. Neil Garfield commented, “It is extremely unusual for an appellate court not only to write an opinion when they have made a decision not to write one, but then to recognize their error and reverse themselves is a rarity.”
The March 9 ruling by District Judges Robert Gross, Mark Klingensmith and Jonathan Gerber went unsigned but granted Jacobs’ motion for rehearing, withdrew the PCA and entered an opinion that reversed in favor of the homeowner against U.S. Bank. The court’s ruling was even more miraculous in light of the fact that the case had begun back in 2008 with Jacobs and Keeley refusing to compromise that U.S.Bank, acting as trustee for the registered holders of ABFC 2007-WMC 1 Trust, had no right to file a foreclosure action when no copy of the original note was attached to the bank’s complaint and questioned how the bank could reestablish a lost note. Broward Circuit Judge Jeffrey Streitfeld was not happy with the obstinate attorneys.
By the time the case went to trial in 2014, the bank had added indorsements to an allonge attached to the note, however, the bank’s witness could not explain when the indorsements had been added. It is not uncommon for “magical indorsements” and “phantom assignments” to mysteriously appear out of the ether when banks start practicing their voodoo “photoshop” dance that raises fake instruments from the dead.
The trial transcript demonstrates that Jacobs and Keeley dug their heels-in and reiterated that the lender could not sue the homeowner without evidence of standing- in which the bank lacked. Judge Jeffrey Streitfeld was more concerned about Jacobs and Keeley’s unprofessional behavior and the raising of an objection, than the bank’s failure to prove standing.
“Let me tell you something. We’re skating close to a real problem now, and that’s such a shame. I have to tell you something. I have lawyers in here that don’t sleep because of the weight of the cases that they handle, and they do not do what you’re doing,” Streitfeld said before taking a five-minute recess. “You better get your act together.”
Jacobs was admonished again when he had the audacity to interrupt bank attorney Heidi Weinzetl while she made remarks to the judge he found unsettling. Judge Streitfeld continued, “If you two do this one more minute, you’re going to spend the weekend in a very uncomfortable place.” He continued, “That’s just not what we do. We don’t do that, and you don’t do that. She was responding to my question.” It is no big mystery that the judge sided with the lender who had no more evidence of standing than if someone with a copy of the note and a fake indorsement walked into the courtroom and laid claim to the home. The Fourth District Court of Appeals would affirm but later reconsider after Jacobs filed a motion for rehearing and request for a written opinion. Jacobs and Keeley wouldn’t be golfing with Judge Streitfeld anytime soon.
Jacob would argue that Streitfeld incorrectly ruled in regards to U.S. Bank’s failure to attach a copy of the original note and prove it had the legal right to file for foreclosure in the first place. “This honorable court, the First DCA, the Second DCA and the Fifth DCA have all repeatedly held without exception that it is reversible error to grant a final judgment without proof of standing before filing the complaint,” Jacobs wrote in his appellate brief. The appeal court agreed basing their decision on the bank’s reliance on the pooling and servicing agreement to establish standing- and finding that proof to be insufficient.
Not only did Jacob and Keeley go where most attorneys fear to tread, the three District Judges Robert Gross, Mark Klingensmith and Jonathan Gerber decided to act with integrity, uphold their oath and honor the rule of law by ruling in favor of a homeowner. The appeal court did what many have failed to do- to stand up to banks that attempt to foreclose without proof that they have standing. As we have seen over and over again during the past nine years, presumptions are made in favor of the banks even when they clearly do not possess evidence of standing.
After writing this post, I came across ANOTHER excellent 4th DCA story that I feel should be included.
The days of banks running roughshod over Florida homeowners may be coming to an end, especially if the bank or home-owners association is brought to court in the Florida Fourth District Court of Appeal. Scribner Village Homeowners Association won a final judgment for foreclosure against homeowner Marie Alexandre for unpaid lien assessments. The property was then scheduled for sale. Meanwhile the homeowner filed for Chapter 11 bankruptcy protection and notified the state court that her home was protected by the bankruptcy automatic stay until the bankruptcy was settled. Despite the fact that an automatic stay acts as a temporary restraining order to protect the assets of the estate- the sale proceeded anyways, and the court clerk issued a certificate of sale to the Home Owner’s Association as high bidder.
Scribner Village Homeowners Association would literally steal a 5-bedroom home that was purchased ten years ago for almost half-a-million dollars for a measley $19,100. Scribner then filed a writ of possession, in which Alexandre asked the Palm Beach Circuit Court to deny the request and set aside the foreclosure judgment, sale and certificate of title. Disregarding state and federal law, the state court rejected her request and ruled in favor of the HOA. However, District Judge Dorian Damoorgian with Judges Melanie May and Jonathan Gerber disagreed with the lower court. “The sale should not have proceeded until the stay was lifted,” Damoorgian wrote in his opinion. “The trial court erred in denying appellant’s motion to set aside the sale and everything that flowed from it.”
Scribner Village appeared to have dropped out of the litigation, making no appearance on appeal. The question becomes, why are state circuit court’s so unwilling to comply with the state law? Alexandre was represented by attorney James Jean-Francois out of Hollywood (Florida) who did an excellent job of defending’s his client’s rights. Home Owners Associations have gotten away with stealing homes for pennies on the dollar for years. It is unfortunate that a homeowner must go all the way to an Appeals Court to obtain justice.
Jacobs-Keeley Trial Lawyers: