Foreclosure AppealsForeclosure Defense Florida

Pealer v. Wilmington- A Terrifying and Disturbing Appellate Decision

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WeidnerLaw recently got slammed in an appellate decision from Florida’s Second District Court of Appeals in the case Pealer v. Wilmington Trust

I encourage anyone reading this post to first click on the link, read the published opinion and then consider the full impact of the case. The decision was released on March 17, 2017, but I’ve been silent about this case, in an effort to pause and give quite reflection before public commentary. In the intervening weeks since release of the opinion, I have been inundated by emails and calls from attorneys from around the state who have alerted me to what they see as the profoundly disturbing aspects of this opinion. The procedural posture and the parties of this particular case are important to understand what is so problematic about it.  My client was not a defaulted homeowner, but rather was an investor who purchased, fair and square the property that was the subject of this appeal. She purchased the property and then spent significant amounts of money and effort rescuing this home from disrepair and making it a home that was safe, habitable and an asset to the community. It’s critical to keep in mind that at the time this fair and square purchase occurred, communities were suffering when properties went vacant…but when people like my client come in and purchase, they take care of properties and take care of communities.

And although the court noted all the positive things investors like my clients do:

I recognize that third-party purchasers who purchase properties from
then subordinate lienholders and pay the taxes, property insurance, and costs of maintaining
the properties while superior foreclosure proceedings are pending serve a valuable
purpose in the community.

The court then goes on to unnecessarily criticize investors and their actions:

More often than not, the sole purpose of their participation in the bank’s foreclosure is to
“unnecessarily protract litigation.”

And to be sure, the actions taken by the Pealers during the underlying
litigation in the instant case did act to prolong the proceedings, when all the while—according to Mrs. Pealer’s own testimony—they continued to collect $1900 a month in
rent on the property.

But here is what is so terribly disturbing about this appellate decision…and what has attorneys and activists up in arms all across this state about this particular opinion.  You see, the bank in this foreclosure case was of course represented by the unlimited resources of the banking community. Of course, we all know the banks, the insurance companies, the large corporations…they have all the lawyers and legislators and the power that all the money in the world can buy….but in this particular case, their lawyers completely ignored and completely disregarded the sole issue that is raised in this particular appellate opinion. Their lawyers did not address it  at the trial court level, they didn’t brief it…not one word of it…at the appellate level…and not one word of it existed at the appellate level…and then

BAM…COMPLETELY OUT OF THE BLUE…THE BANKS HAVE THE COURT STEPPING UP FOR THEM AND RAISING ISSUES THAT THEY NEVER PRESERVED!

There is a core foundation of appellate law that if you do not preserve issues at trial court, litigants are forbidden from raising them on appeal.  This is such a core of the appellate process that a violation of this foundation really has  lawyers…particularly those that represent investors literally up in arms.  The court directly acknowledges that the arguments were not preserved, but then directly launches into its own unprovoked defense for the bank:

Although by failing to object the bank waived any
argument that the Pealers lacked standing to fully participate in the foreclosure
proceeding because they were not parties to the note and mortgage, see Corrigan v.
Bank of Am., N.A., 189 So. 3d 187, 192 n.2 (Fla. 2d DCA 2016), had they properly
preserved such an argument, I believe it would have had merit in this case.

And from that jumping off point, the court’s own sua sponte wholesale defense of the banks and their inability or unwillingness to prosecute or preserve their own cases or interests launches.  To those attorneys and parties that have shared their critiques and frustrations with me….believe me…I get it…we live in dangerous and very problematic times…but the limits of what individuals are able to do in the face of such dangerous times….are limited.

For me, what happened here…an appellate court jumping up completely of its own volition…and without any invitation from the powerful banking lawyers (by virtue of the issue not being preserved or argued) and offering a roadmap to defenses that noone in their industry had raised is very, very troubling…but is illustrative of the larger conflict that we see happening all across this country.

As a lawyer who represents individuals, it’s not just that I’ve got to worry about fighting the banks and their unlimited resources…it’s not just that I’ve got to worry about trial court judges who seem to favor the banks at nearly every step…as this opinion shows, we’ve all got to be prepared for now even appellate courts stepping up and stepping in to protect the interests of the banking and corporate classes.

That hardly seems like a fair fight.

The impact of these kinds of actions being felt…and will continue to be felt in protests around the world.

It’s a scary times we live in…

Read the briefs below:

Pealer (2D15-288) Initial Brief

Transcript

AnswerBrief

Pealer (2D15-288) Reply Brief

 

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