COLLECTION OF FORECLOSURE FLORIDA APPEAL CASE LAW

The Trend: Borrowers Win Foreclosure Appeals

Whats 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: Goncharuk Verizzo BAC Funding Sandoro Khan Lazuran Servedio Frost Alejandre The trend? Borrower loses in the trial court. Borrower doent give up. Borrower appeals. Appellate court says: Borrower, youre right, and the court was wrong. No matter how bad your experience in the trial court, you simply cannot win on appeal if you dont even try. Its just like Wayne Gretzky said: You miss 100% of the shots you dont 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 didnt even show up! Heres the biggest new trend in foreclosure law: banks arent even trying to protect their wins on appeal. They admit error, or dont even brief the case. From the borrowers perspective, this means winning because the other side doesnt even show up. William Roper noticed this trend of banks just giving up instead of fighting their appeals. Hes begun to collect a list of decisions where foreclosure judgmentscases where the bank won and the borrower lost in the trial courtwere 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 Appellants 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/De

cember%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: dont stop fighting, even if you think youve 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.