Florida Foreclosure Lawsuits
If you can’t resolve the past due dispute with your lender or you’ve decided on a preemptive strategic default to put you in a better position for a loan modification or short sale, a Florida foreclosure lawsuit will eventually follow. More on Strategic Default
Although there has been a significant reduction in the number of Florida foreclosure lawsuits in the first half of 2012 compared with the same period one year earlier, the decline is not due to fewer defaults. Instead, issues related to defective and often illegal documents and court filings prepared by lenders and their lawyers have forced many banks to halt their Foreclosure Process to re-evaluate the methods used and quality of the law firms selected to handle the cases. Once these matters have been addressed, expect a second huge wave of suits to follow by 2013.
Among many reasons to expect this surge, most of the mortgages in default are actually pooled into mortgage backed securities whose sole income is generated by the principal and interest payments for the mortgages with investors who expect returns and aggressive collection efforts to protect their investments. Between greedy banks and demanding investors there’s not much support for the poor homeowner. Although the recent Nationwide Foreclosure Settlement was promoted as a big help for underwater borrowers, few if any will actually seen any benefit from the settlement. Is Your Mortgage Underwater?
Defending Florida Foreclosure Lawsuits
Florida is a Judicial Foreclosure state meaning that foreclosure lawsuits and foreclosure sales must be conducted through the court system. The foreclosure lawsuit doesn’t officially begin until filed with the court and a process server delivers the lawsuit papers to you including an Individual Summons for each defendant, a Notice of Lis Pendens which prevents you from selling or transferring the property during the case and a copy of the foreclosure lawsuit itself.
If the process server can’t serve the lawsuit documents on you personally after several legitimate attempts to do so, the case can proceed with service by publication which means a legal notice published in a local newspaper. Unless you regularly read legal notices, you’re better off accepting the lawsuit from the process server than hiding and hoping it all goes away and risk missing important deadlines to respond if served by publication. Don’t Let Foreclosure Stress Control Your Life
Once you’re properly served you have twenty days to “respond” to the lawsuit although your response includes at least three different options. Depending on the facts of your case the options include a Motion for Extension of Time to Respond, a Motion to Dismiss the Lawsuit and filing your Answer and Affirmative Defenses. More on Foreclosure Lawsuits
Motion for Extension of Time
In most situations its worthwhile to initially respond with a Motion for More Time which provides you with additional time to research legal issues and decide on your next course of action as well as more opportunities to pursue a Short Sale, Loan Modification or other Foreclosure Option. Prepare your Motion using the Sample Motion for Extension of Time we’ve provided as a starting point and then modify to reflect the circumstances in your case.
Before sending the Motion to court try to contact the bank’s lawyer to confirm their agreement on your Motion and then send a copy of the Motion and a SASE for both you and the bank’s lawyer to the court and attorney. Most courts will grant the Motion without the need for a formal hearing but they’ll let you know if one is required. If the bank’s lawyer won’t agree to the extension contact the judicial assistant for the judge handling your case to see if you need a hearing or the court can review your motion without one.
Motion to Dismiss the Lawsuit
Once the extension of time expires, you can either file a Motion to Dismiss the Lawsuit or your Answer and Affirmative Defenses. Deciding whether to file a Motion to Dismiss and what to include can be a complicated decision best handled by an experienced foreclosure defense attorney if you can afford to hire one.
If you don’t have the money for an attorney, you can defend your own foreclosure lawsuit with a little research and extra effort. To help you decide on the next step, review our detailed discussions on Foreclosure Lawsuits and Foreclosure Defenses as well as Rule 1.140(b) of the Florida Rules of Civil Procedure. Rule 1.140(b) contains a list of defenses that must be raised in your Motion to Dismiss if you file one or in the Answer and Affirmative Defenses to avoid waiving any important defenses.
If you decide to file a Motion to Dismiss the Foreclosure Lawsuit, use our Sample Motion as a starting point and then modify to reflect the facts in your case. Once the Motion is completed follow the same procedures discussed above to set the Motion for hearing before the court.
Answer and Affirmative Defenses
If your Motion to Dismiss is granted the case is over for now although might be re-filed at a later date. If the Motion is denied the next step is filing your Answer and Affirmative Defenses. You may also want to include a counterclaim against the bank with your Answer if sufficient grounds exist. Given the widespread and well documented media reports of fraud and the broad array of illegal and unethical practices by banks and their lawyers, there’s a good chance there’s something wrong with your case as well and often the best defense is a strong offense. Read Why the Banks are to Blame for the Foreclosure Crisis
Although some counties impose a filing fee for counterclaims, depending on what happened in your case it may be the best money you’ve ever spent. In several recent cases courts have actually penalized banks for the illegal practices by stripping away the mortgage and awarding the home to the borrower free and clear of any loans.
Discovery in Foreclosure Lawsuits
When the initial pleading stage has been completed the next phase in the foreclosure lawsuit is the discovery process when you can request documents and information from the bank to help defend your case or support your counterclaim.
As you’ll read in our section on Foreclosure Defenses, the bank needs to prove that it owned your note and mortgage before the lawsuit was filed, must produce the originals of the promissory note, mortgage and any transfers or assignments of the loan and prove that all of the documents were properly recorded in the county recording office together with payment of all applicable recording fees therein.