THE AMENDED COMPLAINT - I'VE ALREADY BEEN SERVED ONE COMPLAINT, SO WHY'S THE BANK FILING ANOTHER? It is crucial to your foreclosure defense to know exactly what an Amended Complaint is, what effect it can have on your foreclosure case, and how to properly respond once it is filed.
A foreclosure action will begin with the Bank's filing of a Foreclosure Complaint. That Complaint will lay out exactly what the Bank is suing you for and the general basis for their argument.
The Complaint will typically state something to the effect of:
- The Defendant/Borrower executed a Mortgage and Promissory Note;
- The Borrower has since defaulted on their payments;
- The bank is foreclosing on the property as a result.
Once filed with the courts, the bank has a legal obligation to serve this Complaint upon any named Defendants; in this case, YOU, the borrower.
An Amended Complaint is usually filled because the original contained some error in the filing of their action and now they are trying to correct that problem before the case is dismissed or they lose at trial.
However, just because the Complaint has been filed once before, doesn't mean that the Bank can't try to change their argument once the lawsuit has begun. The way the banks implement this change to their argument is via the Amended Complaint. Knowing how to recognize this change and how to properly respond, can literally mean the difference in losing your home at trial or possibly having your case dismissed altogether; and at the very least, adding several months and in many cases, years to your foreclosure defense.Any time added to your defense means more time in YOUR home!
The Florida Rules of Civil Procedure state in RULE 1.190 AMENDED AND SUPPLEMENTAL PLEADINGS (a) Amendments,
"A party may amend a pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed on the trial calendar, may so amend it at any time within 20 days after it is served. Otherwise a party may amend a pleading only by leave of court or by written consent of the adverse party."
What this means is that if the borrower/Defendant has only filed a Motion to Dismiss, which is considered by law a "non-responsive" pleading, then the Plaintiff, as a matter of course, may file an amended complaint once, without leave of court. However, if the Defendant has already filed an Answer, which is typically bad for your defense (because you've now agreed to the courts jurisdiction and no longer have the ability to have the case dismissed), and it's been more than 20 days since the pleading was served, the Plaintiff can only file an Amended Complaint if the court grants leave to do so. Thus, if you've filed an Answer and the Bank subsequently files an Amended Complaint, you can move to strike the amended complaint if it has been more than 20 days since their original complaint was filed and they did not move for leave to amend their complaint.
If you have filed an answer and the bank then obtains leave to amend, YOU SHOULD FILE A MOTION TO DISMISS THE AMENDED COMPLAINT RIGHT AWAY!
By filing this Motion to Dismiss, you not only have recaptured the ability to have the case dismissed, you have reopened the pleadings and therefore the case is no longer at issue and the judge does not have the discretion to set your case for trial. In this scenario, by filing their Amended Complaint, the bank has given your foreclosure case new life; a second chance to have the case possibly dismissed and at the very least, the opportunity to add several months, if not years, to your foreclosure defense. You CANNOT let opportunities like this pass by.For the aforementioned reasons, it is vital that you consult with a knowledgeable foreclosure defense attorney who withholds the legal expertise to not only recognize when an amended complaint has been filed, but why the bank filed it to begin with and how to then properly respond. While you may be reading this and wondering what all of this legal jargon really means to your case, being able to discern these rules and respond effectively can mean the difference in keeping your home for years to come or losing it within months at trial. For free advice and further explanation of Amended Complaints or any other questions you may have concerning your foreclosure defense, please contact THE FREEDOM LAW FIRM and their team of EXPERIENCED and AGGRESSIVE FORECLOSURE DEFENSE ATTORNEYS AND PARALEGALS. CALL FREE ANYTIME, DAY OR NIGHT AT 407-883-2618.
Updated: Jun 22, 2016
Posted by: Charles Franklin