IN THE SECOND DISTRICT COURT OF APPEAL STATE OF FLORIDA. Appellant, CASE NO: 2D

Transcription

1 IN THE SECOND DISTRICT COURT OF APPEAL STATE OF FLORIDA BARBARA JOAN SPRINGER, v. Appellant, CASE NO: 2D LT CASE NO: CI-21 BANK OF AMERICA, N.A. Appellee. / MOTION TO STRIKE ANSWER BRIEF AND REQUEST FOR WRITTEN OPINION REGARDING SAME Appellant, BARBARA JOAN SPRINGER ( Springer ), by and through her undersigned counsel, moves this Court for an Order striking the Answer Brief of Appellee, BANK OF AMERICA, N.A. ( BOA ), in whole or in part, and requests issuance of a written opinion in this regard, and would show: 1. Springer initiated this appeal from the lower court s Final Judgment of Foreclosure. The sole issue on appeal is whether BOA complied with paragraph 22 of the standard, Fannie Mae mortgage where the amount necessary to cure the default (by BOA s own admission) was just $3,283.82, yet the notice BOA gave Springer required payment of $4, to cure the default (as it required the ensuing month s payment even though that payment was not yet due). See Initial Brief. 2. In its Answer Brief, BOA cites a recent, non-final, panel decision from

2 the Fifth District in Astoria Federal Savings and Loan Assn. v. Kaufman, So. 3d (Fla. 5th DCA 2015). The substance of that decision, from beginning to end, is as follows: Id. Astoria Federal Savings and Loan Association appeals the summary judgment rendered by the trial court in favor of Danielle Kaufman in this mortgage foreclosure case. The basis for the summary judgment was the trial court's determination that Astoria did not comply with the notice of default requirement of paragraph 22 of the mortgage, which required that Astoria give Kaufman notice of the default and inform her of the steps she could take to cure the default. Astoria argues that the summary judgment should be reversed because the record reflects that it did send notice in compliance with paragraph 22 of the mortgage. Our review of the record reveals that Astoria is correct and that the notice that it provided to Kaufman was in compliance with paragraph 22. Therefore, we reverse the summary judgment under review and remand to the trial court for further proceedings. 3. Essentially, the Fifth District found the default notice in that case to be in compliance with paragraph 22, but cited no facts showing how it arrived at that conclusion. Id. 4. Here, BOA cites Kaufman in its Answer Brief, yet BOA does not rely upon the language contained in the Fifth District s published decision. Instead, BOA goes outside the four corners of that opinion by citing what is alleged to be excerpts from the lender s initial brief in that appeal. See Answer Brief, p. 25. BOA s obvious intent is to piecemeal the underlying facts (the content of the breach letter upon which the Kaufman court is alleged to have ruled) even though the Fifth

3 District s published decision does not contain those facts. 5. Established law prevents BOA from engaging in this analysis. Quite simply, if BOA wants to cite Kaufman, it is limited to the four corners of the Kaufman decision. As the First District explained in Shaw v. Jain: Jain relies on Parkerson v. Nanton, 876 So. 2d 1228 (Fla. 1st DCA 2004), a prior decision of this court which he maintains reaches a contrary result on similar facts. However, the opinion in that case contains no recitation of the testimony. A prior opinion has precedential value only to the extent that it is possible to determine from the opinion that the material facts are sufficiently similar. See Cusick v. City of Neptune Beach, 765 So. 2d 175, 177 (Fla. 1st DCA 2000) (citing Forman v. Fla. Land Holding Corp., 102. So. 2d 596 (Fla. 1958)); Adelman Steel Corp. v. Winter, 610 So. 2d 494 (Fla. 1st DCA 1992). Moreover, it is elementary that the holding in an appellate decision is limited to the actual facts recited in the opinion. Adams v. Aetna Cas. & Sur. Co., 574 So. 2d 1142, 1153 (Fla. 1st DCA), review dismissed, 581 So. 2d 1307 (Fla. 1991). We may not look beyond the opinion, itself, in our search for the material facts. See Adelman Steel Corp., 610 So. 2d at (stating that it impermissible to look to the record in the prior case for purposes of ascertaining the facts). Accordingly, in the absence of any recitation of the facts considered material to the court in Parkerson, we cannot determine whether the facts were sufficiently similar to those with which we are presented. As a result, Parkerson provides no precedent for our consideration. 914 So. 2d 458, 461 (Fla. 1st DCA 2005). 6. Similarly, in Adelman, quoted in Shaw, supra, it was argued by the employers and servicing agents in the cases before us that the record in Perez reveals the internist had not been authorized by the employer and carrier, and thus the Perez opinion should not be read as prohibiting ex parte discussions by the employer and carrier s representatives with authorized physicians. 610 So. 2d at 502. The Fifth

4 District reject[ed] this interpretation of the Perez opinion because it is contrary to the basic rules governing analysis of an opinion to determine its controlling principles. Id. As the First District explained: It is impermissible, therefore, to go behind the facts stated in an opinion to find a basis for distinguishing or limiting its intended holding. As Professor Goodhart has stated in his classic law review article on this subject cited in the above quote, The first and most essential step in the determination of the principle of a case is, therefore, to ascertain the material facts on which the judge has based his conclusion. 40 Yale L.J. at 169. Explaining the rules for determining which facts are material, the article observes, If there is an opinion which gives the facts, the first point of notice is that we cannot go behind the opinion to show that the facts appear to be different in the record. Id. at 170. The article elaborates on the importance of confining the case analysis to the material facts perceived by the authoring judge as discerned from the judge s discussion of the facts in the opinion, and concludes that while many facts recited may be immaterial, all unrecited facts are immaterial to the decision 7. This Court s decision in Jaylene, Inc. v. Moots, 995 So. 2d 566 (Fla. 2d DCA 2008), sets forth this same principle of law: Id. McKibbon does not compel a different result here. The McKibbon case is controlling only to the extent that it is possible to determine from the court s opinion that the power of attorney at issue in that case was similar to the POA held by Ms. Moots. See Shaw v. Jain, 914 So. 2d 458, 461 (Fla. 1st DCA 2005). But the opinion in McKibbon does not set forth the language of the power of attorney under review in that case. Thus, McKibbon is not controlling here 8. These authorities could not be clearer. If BOA wants to cite Kaufman,

5 then it is limited to the content of the Fifth District s published decision. It is entirely impermissible to do what BOA has done herein, i.e. cite the underlying briefs from Kaufman in an attempt to piecemeal the facts where those facts are not set forth in the Kaufman opinion. 9. BOA s impermissible argument in this regard permeates the Answer Brief. As such, the entire brief should be stricken (with instructions to file an Amended Brief which omits facts not contained within the Kaufman decision). Alternatively, at minimum, these portions of the citations to Kaufman are improper and those portions should hence be stricken from the Answer Brief. 10. Unfortunately, what BOA has done in this regard in its Answer Brief is an all-too-common problem in circuit courts throughout Florida. Frankly, in this context, it is all-too-easy for litigants to do. The argument unfolds in circuit courts throughout Florida on a regular basis and sounds something like this The Kaufman decision does not set forth the facts, but here you go, circuit court judge here s the breach letter from that Kaufman decision. See? The Fifth District thought that letter complied with paragraph 22, so you should find the breach letter in this case complies, too. 11. This problem is not unique to Kaufman. After this Court s 2012 decision in Judy v. MSMC Venture, LLC, 100 So. 3d 1287 (Fla. 2d DCA 2012) (reversing a foreclosure judgment because the breach letter did not specify the

6 default), litigants on both sides of the table in foreclosure cases throughout Florida tried showing circuit judges the letter at issue in Judy even though that letter was not part of this Court s written decision. 12. The undersigned has litigated this issue (whether a default letter in a foreclosure case complies with paragraph 22 of the standard, Fannie Mae mortgage) many thousands (yes, thousands) of times on the circuit court level. The specific issue addressed herein has arisen hundreds of times. The undersigned regularly cites Shaw, Adelman, and Jaylene, supra, yet circuit judges throughout Florida often seem surprised at this principle of law Given the pervasive nature of this problem, and BOA s obvious failure to adhere to this principle of law in its Answer Brief herein, this Court should issue a written decision clarifying that where a published decision such as Kaufman or Judy does not set forth the facts, litigants cannot cite those cases based on facts which do not exist in the four corners of those published decisions by pulling those facts from other sources. 14. The undersigned realizes this request may appear unusual. For what it 1 By way of example, Hon. David Demers was a judge in Pinellas County for 20 years (and was Chief Judge of the Sixth Judicial Circuit for six of those years). The undersigned has always found his knowledge of all aspects of the law to be exceptional. Yet when this issue arose before His Honor earlier this year, Judge Demers was unfamiliar with this principle of law, requesting briefing from the parties before making a ruling. To be frank, if this issue was unclear to Judge Demers, then that convinces the undersigned that a published decision is in order.

7 is worth, this is the first time the undersigned has ever requested a published decision from any appellate court on an interlocutory issue such as this. If that request is misplaced, the undersigned apologizes. That said, the undersigned respectfully submits that a published decision on this issue, as requested herein, would provide great guidance to circuit judges throughout Florida on an oft-litigated, hotlycontested issue. WHEREFORE Appellant respectfully requests relief in accordance with the foregoing.

8 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via electronic mail to john.guard@quarles.com, lindsay@saxe@quarles.com, Lynda.dekeyser@quarles.com, vilma.harris@quarles.com, DocketFL@quarles.com, John M. Gard and Lindsay M. Saxe, Quarles & Brady, LLP, 101 E. Kennedy Blvd., Suite 3400, Tampa, FL ; tm89142@butlerandhosch.com, FLPleadings@butlerandhosch.com, Ted H. McCaskill, Esq., Butler & Hosch, P.A., 3185 S. Conway Rd., Suite E, Orlando, FL ; and to dpilka@pilka.com, Iritzko@pilka.com, kabraham@pilka.com, Laura M. Ritzko, Esq., Pilka & Associates, P.A., 213 Providence Rd., Brandon, FL on this 12th day of February, /s/ Mark P. Stopa, Esquire Mark P. Stopa, Esquire FBN: STOPA LAW FIRM 2202 N. Westshore Blvd. Suite 200 Tampa, FL Telephone: (727) foreclosurepleadings@stopalawfirm.com ATTORNEY FOR APPELLANT