A Broward lawyer whose clients lost their bid for attorney fees suggested judges were sending a message to him and other foreclosure defense lawyers: They may prevail in the courtroom, but lose when it comes to recouping expenses for borrowers who defaulted on mortgages.
Outspoken foreclosure defense attorney Roy Oppenheim said a court decision last week indicates lawyers representing homeowners against lenders will likely not get paid for their work, if they can’t recover attorney fees from plaintiffs who bring failed lawsuits. But he said it will likely spawn new litigation as successful defendants accuse financial institutions of common law and statutory torts.
“If the courts think that’s how they’re going to shut down the Roy Oppenheims of the world, they’re mistaken,” said Oppenheim, co-founder and senior partner at Weston-based Oppenheim Law. “They’ve emboldened us.”
Foreclosure defense lawyers represent property owners whose creditors seek to collect after borrowers default on real estate loans. Their business ballooned as lender suits clogged Florida court dockets at the height of the last housing market collapse. Lawyers like Oppenheim presented arguments—including those that raised questions about lenders’ legal standing—that helped delinquent borrowers hold on to the real estate.
Those defenses worked in the chaos of the foreclosure crisis, where debt traded so quickly on the secondary market that lenders sometimes failed to document ownership.
That failure appeared to be in play when Oppenheim helped clients Frederick and Jonelle Sabido beat back a suit by Bank of New York Mellon, which reported it had lost the couple’s promissory note. Oppenheim successfully argued on appeal that the bank lacked legal standing to sue the Sabidos, because it never showed how their debt transferred to it from the original lender, Washington Mutual Bank F.A.
The defense won the appeal but lost on a request, as the prevailing party, to have the plaintiff cover appellate expenses. It turns out the judicial panel that ruled in Oppenheim’s clients’ favor also ruled against them. Having found the bank could not sue because it was not a party to the loan contracts, the court then also found it couldn’t hold the company responsible for legal fees under those same documents.
The decision in the Sabido case is at least the second time the Fourth District Court of Appeal has declined to award attorney fees to borrowers who successfully challenged a lender’s legal standing. It follows an April 12, 2017, decision for Nationstar Mortgage LLC.
Oppenheim saw it as a move to disincentivize foreclosure defense work. He called it “inherently unfair” that lenders could collect attorney fees under provisions in the loan documents, if they prevailed against a defaulting borrower, but that their clients couldn’t do the same.
“These cases are vindication for us [defense lawyers]. It’s kind of what we call a backhanded compliment: ‘Congratulations! You win, but you’re not getting paid,’ ” he said. ”If courts think they’re going to suck the oxygen out of the room, they’re wrong. If that is the logical intent, it will backfire.”
Oppenheim is the second lawyer this month to criticize a South Florida state appellate court’s handling of foreclosure cases.
Fort Lauderdale attorney Evan M. Rosen Thursday issued a news release asking, “What’s wrong with Florida’s Third District Court of Appeal?”
Frustrated over the adjudication of foreclosure cases, Rosen issued a 15-page document complete with a statistical analysis of foreclosure opinions from Florida’s five district courts of appeal. It showed the Miami-based district court of appeal, Florida’s Third DCA, outpaced its counterparts when it came to ruling against homeowners.
“Sometimes things just need to be said,” Rosen told the Daily Business Review.
Now Oppenheim is taking aim at the West Palm Beach-based state appellate court—and the bank. He said the ruling led him to turn his attention to the lender, and explore other legal avenues, including a related lawsuit alleging wrongful foreclosure, unfair and deceptive trade practices, and violations of state and federal debt collection laws because the bank allegedly knew it did not possess the note when it filed suit against the Sabidos.
Lender’s counsel, Elliot B. Kula, W. Aaron Daniel and William D. Mueller of Kula & Associates in Miami, did not respond to requests for comment by deadline, and neither did the appellate court spokesman.
“I can assure that anyone else who’s doing this work feels the same,” Oppenheim said. “And we’re not going away.”
Rosen agreed that similar decisions could lead parties to exchange new lawsuits.
“This is going to encourage defense lawyers and defendants to look for other ways to establish entitlement to attorney fees under other paradigms,” he said.