What’s it like to appear before the United States Supreme Court? Let’s talk about it, podcast-style.

The United States Supreme Court hears oral argument from attorneys in only about 80 cases a year. Thus, many appellate attorneys never have the opportunity to experience what it is like to actually advocate in the High Court. I (Jared) recently learned what it is like appearing before the Supreme Court from Duane Daiker, a fellow board-certified appellate specialist in Tampa Bay and a good friend of DPW Legal, on the Issues on Appeal podcast.

Duane Daiker and Jared Krukar sit with studio monitors and microphones at a table while recording a podcast
Duane Daiker and Jared Krukar recording
the Issues on Appeal podcast.
Not pictured? The feather quill pen
memento Duane keeps in his office.
(Photo courtesy of Duane Daiker and used with permission.)

Duane is the creator and host of Issues on Appeal. Each week he speaks with fellow appellate practitioners about topics that are interesting to, well, the same people we suspect are interested in this Florida Appellate Procedure Weblog!

Duane recently took his first trip as an advocate to the Supreme Court. He sat second-chair on a case he handled through the trial and intermediate appellate stages. This visit was a perfect topic for his podcast. But rather than just talk about his visit himself on his podcast, Duane enlisted me to guest host his show, and turn the tables on him.

I asked every question I could come up with that all of us inquiring appellate nerds would want to ask. Where do you go when you enter the court? What’s security like? Who comes and talks to you? Is there a lawyers’ lounge? What’s it like sitting at counsel’s table? Did Justice Thomas ask a question? I hear you get a feather quill–can I touch it? (Yes, I really did ask, and yes, I did get to hold it. You know you would ask, too.) Our discussion was full of interesting tidbits about the preparation, the day of argument, the people at the Court, and the entire experience.

If this sounds interesting to you, check out Episode 4 of the Issues on Appeal podcast, “At the High Court.” You can check it out at the link or on iTunes, Google Podcasts, or Spotify.

And if you like that episode, listen to some of the other episodes. Duane has already had a number of great guests. Dineen and I are both slated to be guests for future episodes. What will we talk about? Stay tuned to find out.

Want to hear more about the United States Supreme Court or other appellate issues? Subscribe!

We’ve discussed the SCOTUS in the past (for example, here and here) and we’re sure to do it again. Keep abreast of changes there or in other courts that are interesting or may impact your practice by subscribing for updates on the Florida Appellate Procedure Weblog.

Eleventh Circuit Says No Benefits Under RESPA If You Address Your Mail Incorrectly

Eleventh Circuit Court of Appeals, Atlanta

Eleventh Circuit Court of Appeals, Atlanta

In Bivens v. Select Portfolio Servicing, Inc., No. 16-15119 (11th Cir. Aug. 17, 2017), the Eleventh Circuit upheld the rejection of the homeowner’s Real Estate Settlement Procedures Act (“RESPA”) claim, all because he mailed a letter to the wrong address.

Bivens received a letter from Select Portfolio Servicing (“SPS”) indicating it would be his new loan servicer on his home loan.  Through his attorney, he wrote a letter to SPS–an attempt at a “qualified written request” (“QWR”) under RESPA–“demanding proof of its authority to service his loan.”  But he did not send the letter to the address SPS had designated for receiving QWRs–instead he used a “general correspondence” address.  SPS responded, but did not provide Bivens all the information he requested, so Bivens sued SPS for an alleged RESPA violation.

The district court granted summary judgment for SPS because Mr. Bivens had failed to mail his QWR to the designated address.  On appeal, the 11th Circuit agreed and affirmed.  The 11th Circuit recognized that the Department of Housing and Urban Development’s regulations “authorized servicers to ‘establish a separate and exclusive office and address for the receipt and handling of qualified written requests.'”  The Secretary of the Department, in a rulemaking notice, had also explained that if a servicer did establish such an office, the borrower was required to “deliver its request to that office in order for the inquiry to be a ‘qualified written request.'”  Bivens, undisputedly, did not.

The 11th Circuit concluded that SPS had properly designated an exclusive address for receiving QWRs.  It rejected Bivens’ arguments that he was not sufficiently notified of the specific address, and dismissed Bivens’ assertion that the common mail processing at that same address rendered it non-qualifying as a “separate and exclusive office” under the regulations.  In sum, the 11th Circuit held that Bivens’ failure to mail the QWR to the designated address relieved SPS of any duty under RESPA to respond to it.

Bivens’ claim failed not because of substantive merit but on a techncality, that probably could have been avoided through more careful reading of important notices or a better understanding and knowledge of applicable regulations.  Don’t let this happen to you!  “Technicalities” are one of many reasons to consult an appellate attorney early on–an extra set of eyes that can reduce cost, expedite proceedings, and potentially avoid a later call to a malpractice carrier.

Evidence Rules Matter: Best Evidence Rule and Hearsay Require Reversal

In an appellate victory for DPW Legal, the Second District Court of Appeal issued an opinion today reaffirming that banks seeking to foreclose on homes must strictly adhere to evidentiary rules governing negotiable instruments and business records.

In Heller v. Bank of America NA, No. 2D14-3530 (Fla. 2d DCA. Jan. 27, 2017) [.pdf], the Bank at a foreclosure trial offered into evidence a copy of the note, rather than the original note, with its counsel asserting that the original had been recently filed with the court clerk. The trial court admitted the copy over defense counsel’s objection, citing the Best Evidence Rule, Section 90.953, Florida Statutes. The Bank also admitted into evidence (again over the homeowner’s objections) testimony of its representative based not on personal knowledge, but on his review of business records that were not in evidence or elsewhere in the court file.

DPW Legal attorney Dineen Pashoukos Wasylik argued on appeal that both rulings were abuses of discretion and an erroneous interpretation of the evidence code, and the Second District agreed. First, the Court held that Section 90.953 of the Florida Evidence Code requires any party seeking to enforce a negotiable instrument—such as the promissory note involved here—to produce and surrender the original of the instrument to the court. The Court rejected the Bank’s argument that the trial court was entitled to rely upon counsel’s assertions that the original had been filed with the clerk. The Court reaffirmed the longstanding tenet of law that a trial court may not “rely on an unsworn statement of counsel to make a factual determination.”