80% Of Success Is Just Showing Up!

William A. Roper, Jr. writes in the Mortgage Servicing Fraud Forum:

• Woody Allen has suggested that 80% of success is just showing up. The reciprocal to that is that one LOSES about 99% of the time when one FAILS TO SHOW UP. This is a key reason that it is imperative to ANSWER any foreclosure suit in which the defendant is properly named and served.
• The purported mortgage investors acting as plaintiffs routinely WIN cases when borrowers fail to answer and default.
• But an interesting thing has been taking place in an increasing percentage of appellate cases over the last year. The mortgage investors have been defaulting in a seemingly growing number of instances by either failing to file an appellee's brief or otherwise confessing error in the appellate courts.
• The decision in Augenstein v. Deutsche Bank was one such case in Kentucky. There the Kentucky Court of Appeals not only overturned the summary judgment, but also dismissed the case.
• 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)
  
  Blumenfeld v. Fifth Third, No. 5D10-3638 (May 27, 2011)
• There is not any useful case law to cite from these decisions, though the Appellant's 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. I am going to begin to collect in this thread the cases where a foreclosure judgment is set aside by confession of error or where the appellee fails to file an appellate brief.(1)

For Bill Roper's entire post thread, see Appellee Confession of Error: Sometimes the Borrower Can Win By Appealing and then Just Showing Up!

Thanks to Deontos for the heads-up on the MSF Forum post.

(1) Bill Roper adds the following:

• Here are two earlier examples of foreclosures overturned by confession of error in Florida:
  
  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)
  
  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)
• And a few more cases involving a failure to file a brief and/or a confession of error:
  
  Alejandre v. Deutsche Bank Trust Co. Ams., No. 4D09-2280, 44 So. 3d 1288, 2010 Fla. App. LEXIS 15544, 35 Fla. L. Weekly D 2254 (Fl. App. 4th Dist. 2010)
  
  Benoit v. Bank of New York, No. 4D09-898, 18 So.3d 731 (Fl. App. 4th Dist. 2009)
  
  Challenger Investment Group, LC v. Ebony & Ivory, LLC, No. 3D07-1113, 958 So.2d 1011 (Fl. App. 3rd Dist. 2007)

While we're at it, tack these cases onto the list as well:

• Bravo v. National City Bank, No. 3D10-1828 (Fla. App. 3d DCA, February 23, 2011) (confession of error; a pro se case),
• Blair v. HomEq Servicing Corp., No. 2008-CA-000001-MR (Ky. App. 2009) (unpublished) (failure to file a brief; a pro se case),
• Opella v. Bayview Loan Servicing, LLC, 48 So.3d 185 (Fla. App. 3d DCA, November 24, 2010) (confession of error; a pro se case).

On a related point, see Vinson v. Vidal, 28 So. 3d 614 (Miss. Ct. App. 2009):

• This Court has long held that an appellee's failure to file a brief is tantamount to confession of error and will be accepted as such unless the reviewing court can say with confidence, after considering the record and the brief of the appealing party, that there was no error. Varvaris v. Perreault, 813 So.2d 750, 752(¶ 5) (Miss.Ct. App.2001) (citing Dethlefs v. Beau Maison Dev. Corp., 458 So.2d 714, 717 (Miss.1984)). "Automatic reversal is not required where [the] appellee fails to file a brief." Id. (quoting N.E. v. L.H., 761 So.2d 956, 962(¶ 14) (Miss.Ct.App.2000)). In order to merit reversal, "[t]he appellant's argument `should at least create enough doubt in the judiciousness of the trial court's judgment that this Court cannot say with confidence that the case should be affirmed." Id. (citing Selman v. Selman, 722 So.2d 547, 551(¶ 13) (Miss.1998)).