Quote: But wouldn't be a law of the case in regards to being the owner of the note?
I think that there are definitely some law of the case problems. And I am a little unclear on what the law would be as to interlocutory orders entered prior to the entry of a final order which is reversed. I haven't studied the cases on this or otherwise briefed the law, nor will I since I am not involved in this case.
My gut feeling is that one can make arguments either way. On the one hand, one could assert that ALL interlocutory orders became final with the entry of the final order of judgment and that any matters not previously raised are thereby waived.
On the other hand, one could also argue that with the reversal and remand that the final order had been vacated and that other interlocutory orders where still just that, interlocutory.
My guess is that there exists some appellate law on this question somewhere, if not in Florida. These cases would more likely relate to other types of interlocutory orders, such as docketing/scheduling orders or discovery disputes.
Even law of the case doctrine has its limits, particularly as to dicta, words which appear in the decision, but which are unnecessary to the decision itself.
Also, bear in mind that as with so many issues, an argument not presented in the trial court is waived.
Law of the case doctrine might support certain findings by the court and these might be either suggested by the plaintiff or even noted sua sponte by the court. But if the plaintiff fails to make the law of the case argument, it might be deemed to be waived.
The defendant needs to at least assert various viable arguments and then see whether the plaintiff presents a good reply/rebuttal.
Bear in mind that the foreclosure mills really have relatively little experience litigating case remanded from appeal and the skill of the foreclosure mill lawyers is often questionable. The foreclosure mill is usually litigating each and every case for a fixed price and cutting corners. This is as true of a case on remand as it is in respect of the original matter before the trial court.
As is so often the case, pro se litigants have a tendency to try to both impress the plaintiff and to coach the plaintiff by prematurely identifying issues that might have otherwise been overlooked. A better strategy is almost always to play dumb, be sparing in volunteering details and to hope that a complacent plaintiff overlooks the flaws and inadequacy of its arguments.
Most of the appellate decisions favoring borrowers are less based upon superior and winning arguments by the defendant than upon the errors of the plaintiff.
One regular and recurring theme that emerges from Mr. Roper's posts and a thoughtful reading of various cases is the fixation of distressed borrowers in wanting to prove that the lender isn't entitled to foreclosure.
This is also a distinguishing theme of the swindlers. The swindlers tell the borrowers what they want to hear. They use vocabulary like "pretender lender" and tell the borrower that the plaintiff doesn't own the loan and isn't entitled to foreclosure.
By contrast, Mr. Roper points out that it is the plaintiff's burden to prove its case, he refrains from the dogma that there is some systemic defect that would allow borrowers to prevail and shows how to beat the plaintiffs based upon viable defenses and evidentiary issues.
Of course, since this doesn't require any "forensic loan audits", "securitization audits", REST Reports or other similar magic bullet strategies peddled by the swindlers, the scam artists attack Mr. Roper and seek to discredit him.
But ALL of the appellate decisions support Mr. ROPER and NONE support the swindlers. In fact, the swindlers cannot even point to a single trial court decision that would vindicate their wingnut theories.