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Newcomer to Argue High-Stakes Foreclosure Case Before Fla. Supreme Court

Ice Legal senior associate Enrique Nieves III is prepping for his first appearance before the Florida Supreme Court in a case that may decide the fate of thousands of mortgage foreclosures by deciding whether banks can escape fraud claims in foreclosures by simply dropping their cases.

07-15-2011

As a relative novice in the legal profession, Ice Legal senior associate Enrique Nieves III is prepping for his biggest case and his first appearance before the Florida Supreme Court.

At 31, Nieves is assigned to argue a case that may decide the fate of thousands of mortgage foreclosures similar to his case, Roman Pino v. Bank of New York Mellon.

The question before the court seems straightforward: Can banks escape fraud claims in foreclosures by simply dropping their case?

But the ramifications are potentially severe, and with its decision the state's high court will likely decide what consequences lenders will face for the robo-signing scandal and allegedly fraudulent assignment-of-mortgage documents that has affected thousands of cases.

The national media swarmed on the issue, and last fall lenders imposed their own moratoriums on new foreclosure filings. The attorneys general in all 50 states launched investigations of lenders.

In Nieves' case, the 4th District Court of Appeal ruled Feb. 3 that BNY Mellon legally avoided a claim that it committed a fraud on the court by voluntarily dismissing a foreclosure action against Pino, a Lake Worth, Fla., resident. The claim was dismissed after Pino's counsel scheduled depositions and asked for an evidentiary hearing to determine whether BNY Mellon used a fraudulent mortgage assignment.

On appeal is an 8-1 en banc decision saying courts have no authority to rescind voluntary dismissals and that no harm was done. Judge Mark Polen disagreed, saying the allegation of a systemic fraud was the very thing the Supreme Court addressed in its 2010 rule change giving courts greater latitude in sanctioning plaintiffs who make false allegations.

If the Supreme Court agrees with Polen, a host of homeowners may get a chance to seek sanctions from their lenders. Those are the stakes for Nieves.

A 2007 graduate of Pennsylvania State University Dickinson School of Law, Nieves was 70th of 177 in his class and vice president of the Minority Law Students Association. He has been an attorney for less than four years and has argued only four appeals, all before district courts of appeal.

Opposing counsel will be Katherine E. Giddings, an Akerman Senterfitt shareholder in Tallahassee and chair of The Florida Bar's Rules of Judicial Administration Committee.

Among Giddings' prominent cases was her 2008 defense of the Democratic National Committee in the 11th U.S. Circuit Court of Appeals after the DNC refused to seat Florida delegates at the national convention because the Republican-controlled Legislature scheduled its primary too early for Democratic rules.

"She told me she teaches appellate board certifications for The Bar," Nieves said.

He appreciates the irony. His opponent could very well be the lawyer who instructs him when he goes for his appellate law certification, which he doesn't qualify for yet because he hasn't had enough cases.

GETS AT ISSUES

Nieves has been at the Royal Palm Beach, Fla., law firm for just two years. The Texas transplant was raised in San Antonio, moved to Georgia during high school and made a name for himself on the basketball court.

"We played basketball together at Collins Hill High School in Suwanee," said Donnie Davis, an Atlanta schoolteacher, Nieves' best friend and best man at his wedding in Jamaica last summer.

"Enrique gave one of the longest best man speeches in history," Davis said. "He knew a lot about my background, but he edited out a lot of parts, which I appreciated."

Davis and Nieves followed each other to Georgia State, where they played for NCAA Basketball Hall of Fame coach Lefty Driesell. A point guard, Nieves took his basketball talents to Coppin State University where he completed an undergraduate degree in science.

What drew Nieves to Florida after law school was a chance to spend time with a cousin he was close to from his days in San Antonio -- Anthony Alabi was an offensive tackle for the Miami Dolphins.

When Nieves wasn't catching a football game, he was drafting memoranda, orders and opinions as a staff attorney in Palm Beach Circuit Court.

"We started the same day," said Jessica Rodriguez, now a staff attorney for U.S. Magistrate Judge Ann Vitunac.

Of the half-dozen in the rookie class of 2007 staff attorneys, Rodriguez recalled Nieves as an excellent writer.

"He's very good at getting to the issue," Rodriguez said. "If I was working on something, I could give it to him to proof or edit. He would come back with advice, give me good ideas or guidance on things I may not have thought of. He's very sharp and kind of thinks outside the box."

Nieves thinks he got the bug for appellate work at Penn State. He had to take an appellate practice course his second year, and it turned out to be a natural fit. But he wanted to be in a courtroom, too.

GOT A SHOT

The Ice Legal firm was barely a year old when Thomas Ice hired Nieves in July 2009.

"When we hired him, I was looking for a bankruptcy attorney," Ice said. "But we were so busy with appeals. I needed someone to step in. I gave him a shot at it, and he showed right away he was excellent."

Writing is a skill many attorneys lack, Ice added, noting they tend to get lost in the legalese and the archaic language of 19th century case law. Nieves' writing style meshed with Ice's own. And he appreciated Nieves' experience as a court staff attorney.

"That's excellent experience for getting to see the judges in action," Ice said. "He understands that if you know a judge's personality, their likes and dislikes, their feelings on certain issues, you can craft your arguments and tailor them to particular judges."

Nieves' first oral argument came in March 2010 before the 3rd District Court of Appeal on a service of process issue.

He considers his first notable case to be Valcarcel v. Chase Bank dealing with attorney fees, which he won last year in the 4th DCA without argument on the briefs. A Palm Beach circuit judge dismissed the case because of misconduct by a Chase attorney but refused to award attorney fees to Ice Legal.

Nieves won a reversal. The issue of attorney fees has come up as an appellate issue several times, most recently in a May 18 opinion from the same court when Nieves prevailed against Flagstar Bank and Mortgage Electronic Registration Systems.

Nothing he's done to date, however, compares to Pino's case. Still, Nieves does not lack for confidence. And Ice looks forward to his high court debut.

"I'd like to see him up there against the big bank with their cadre of attorneys," Ice said. "It makes a good David versus Goliath picture in my mind. He's certainly going toe-to-toe against a very experienced, very highly paid lawyer on the other side."

On July 1, the Florida Supreme Court granted BNY Mellon's motion for extension of time. It has until Aug. 4 to answer Nieves' brief. No date has been set for oral arguments.


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