THE FREEDOM LAW FIRM – The Name Says It All

bald eagle Freedom Law Firm

THE FREEDOM LAW FIRM – The Name Says It All

The Freedom Law Firm, it’s a strong name with an even stronger meaning. However, our firm didn’t choose our name simply because it’s catchy or that we wanted to plaster it across some advertising billboard. We chose the name because we really do want to provide you FREEDOM. Freedom from the bank calling or writing you threatening letters reminding you how much you owe them. Freedom in the form of a loan modification that you obtained which helps you to pay a reasonable monthly mortgage and keep your home, and still have some money left over to spend on your family and other necessities. Last but not least, freedom from the fear and stress of constantly worrying that the bank can swoop in at anytime and leave you and your family on the street.

 

Our goal is to strategically and aggressively advocate for your rights in order to provide you these Freedoms, both financial and emotional. Every month we strive to achieve this goal in one form or another by having cases dismissed, final judgments defeated and deficiency waivers obtained. Remember while, we aggressively fight the banks’ attorneys and defend your case in the Courtroom, it is important that you are taking proactive steps towards keeping your home as well!

 

i)               We are defending your foreclosure as aggressively as possible, but it is your responsibility to negotiate your loan modification or reinstatement.

Although we do not negotiate with the banks and do not do loan modifications, we will answer ALL of your questions to help you reach your goal!

If you desire a loan modification or reinstatement of your loan,

then you need to submit a Loan Modification Application immediately,

if you have not already done so.

There are also loan modification companies that can help you complete the loan modification process. Florida Law states that a NON-lawyer may NOT accept an up-front fee unless the loan modification is successful.

You do NOT need a lawyer to successfully obtain a loan modification!

Defending foreclosure requires special knowledge of a plethora of laws, however, negotiating a loan modifications is primarily administrative in substance.

 

ii)             If you have decided that you do not want to keep the property,

then your options are either i) short sale ii) deed in lieu OR iii) cash for keys

 

iii)            If you think you have enough money to negotiate a reinstatement, or

if you are ready for mediation, call us immediately!

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DO NOT LET THE COURTS SHAVE VALUABLE TIME OFF YOUR CASE

don't let the courts shave time off your foreclosure defense

DO NOT LET THE COURTS SHAVE VALUABLE TIME OFF YOUR CASE
So I was sitting in Court today at yet another exciting Case Management Conference (interpret as: a house-keeping hearing where the Court will do anything within its power to tie up any loose ends and push your case to trial) when something subtle, yet crucial to a foreclosure defense case occurred. However, before I delve into what transpired, let me start by giving some background info on what typically takes place at these ever-present CMC hearings. Often times, the Order setting the Case Management Conference will state something to the effect of, “ALL pending motions shall be heard at Case Management Conference.” What this means simply is that if you have any outstanding motions, you must be prepared to argue each and every one of them at that CMC. Why would the Court add this language you ask? It’s simple, that way the Court may dispose of any procedural hurdles that may prevent the Court from setting the case for trial. One example of such a hurdle would be a Motion to Dismiss (read our prior blogs on when a case is “At Issue”).  If there’s a pending Motion to Dismiss, the case is clearly not “at issue” under FL Rule of Civil Procedure 1.440 and the Court is precluded from setting the case for trial, despite their most zealous efforts. The reason it’s important to delay a trial is due to the fact that the sooner a trial is set, the less time you could potentially have left in YOUR home. In other words, the longer we can prevent trials, the more guaranteed time you have left in YOUR home; which is clearly the goal.

Now that you understand what generally transpires at your typical CMC, lets get into what happened today and why it’s imperative to have a competent attorney representing you in your foreclosure defense every step of the way. Today’s CMC started with opposing counsel and myself informing the Court that the case was not at issue and could not be set for trial due to the still pending Motion to Dismiss that would need to be set for a future hearing. Now here’s the key part. At that time, the Judge nonchalantly declined our request and asked me to give my arguments for my Motion to Dismiss, clearly in an attempt to dispose of the Motion at that time so he could speed along the case. Instead of just quietly acquiescing to the Judge’s request, I realized this could potentially shave months off my client’s case, which could potentially result in less time for my clients to live in their home. Therefore, I respectfully brought to the Judge’s attention the fact that this particular Order setting today’s CMC did NOT include language which required all hearings to be heard and as such, the parties were under no obligation to hear the motion at that time. Subsequently, the Judge agreed and set another CMC several months out, with instructions for the parties to set the matter for hearing. Thus, my client’s Motion to Dismiss is still pending and as long as it’s pending a trial cannot be set. No trial = more time in the home! Victory! Subtle, but no doubt, a victory. It’s clear to see that had our client not had an attorney or not had an experienced attorney who knows how to pay attention to detail and think quickly on their feet, their case could have proceeded much quicker.

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Serious About Keeping Your Home? Attempt a Loan Modification Sooner Rather Than Later!

apply for loan modification nowWhen it comes to saving a home from foreclosure, the most responsible and prudent advice I can give someone who is realistically looking to keep their home is simple; apply for a loan modification and do it NOW! While I certainly consider our firm to be one of the most aggressive and knowledgeable defense firms in Central Florida, obtaining 7 free homes in just the last year alone, more often than not, simply defending a case won’t ultimately result in you retaining the home for the long haul. While we defend the foreclosure case, we highly advise that YOU the borrower, SIMULTANEOUSLY begin working with the bank to obtain a more affordable payment plan. i.e. a loan modification. It’s a two prong strategy for home retention: we aggressively defend against the bank’s attorneys in the courtroom, while you apply for loan modification directly with the bank’s reps. Since a loan modification can take several months to be reviewed by the bank, the ideal time to do this is early on in the litigation process when there are no trials or major hearings on the horizon. There’s nothing more stressful for a client than trying to get a loan mod with a trial one month away. Unfortunately, we get calls from potential clients that have other attorneys that tell us they have a trial coming up in 3 weeks and they want to know what if anything they can do to save the house. Sadly, their previous attorneys did them a major disservice by failing to timely inform the client they could potentially obtain a loan modification and keep the home. Most of the time, these potential clients hear this news for the first time after calling us.

Banks are under no obligation to give you a loan mod but if you do not try, then you don’t have a chance. If you’re in home foreclosure, regardless of how far along your case is, and you’re serious about keeping your home, APPLY FOR A LOAN MOD IMMEDIATELY! This is going to take some time as the bank will want all types of financial documentation including tax returns, pay stubs and utility bills, which is precisely why I say start now! It does not take specialized knowledge to obtain a loan mod as it is administrative in nature. We will defend your foreclosure as aggressively as possible, but it is your responsibility to negotiate your loan modification. Although we do not do the loan modification for you, we will answer ALL of your questions to help you reach your goal! There are also loan modification companies that can help you complete the loan modification process. Florida Law states that a NON-lawyer may NOT accept an up-front fee unless the loan modification is successful. If you do get the loan mod and begin payments, then the bank will voluntarily dismiss the foreclosure action. However, if you do not get the loan mod you can always reapply for other types of loan mods such as HAMP, HARP or even “In-House” mods. As the old saying goes, there is no time like the present…so start NOW!

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SERIOUS ABOUT KEEPING YOUR HOME? YOU’VE GOT TO ATTEMPT A LOAN MOD!

try-a-loan-modification
Everyday people come through our doors in distress because they have just been served with a foreclosure Summons. One of the first questions we ask here at The Freedom Law Firm is “what is your ultimate goal?” Now at first blush, the answer to this question may seem like an obvious one (keep the house) but in fact, many different people have many different goals. For instance, some young, first-time homeowners may be so incredibly upside down that they do not even want to save the house, but simply wish to walk away debt free so they can start fresh on another more financially sound property. Additionally, you might have an investor who is simply looking to fight the foreclosure as long as possible so they in turn can continue to rent the property out and make some additional income. However, the most common scenario we encounter is the obvious one that I alluded to earlier; it’s a family who has lived in the home for years and years and wants to fight to keep the property, their HOME, permanently. It is the latter of these scenarios in which we will focus our attention here today.

Most people want to keep their, and rightfully so. However, the hard truth of the matter is that simply saying you want to keep the home and hiring an experienced attorney to defend the foreclosure is not the be all end all when it comes to saving the home indefinitely. While it is a critically vital step due to the fact that you certainly need an experienced attorney to defend the case and prevent the bank’s lawyers from swooping in and stealing your home before you’ve had a chance to negotiate with the bank, that alone will more than likely not get it done.  The more prudent plan of attack would be that while you hire an experienced foreclosure defense firm, such as our team here at The Freedom Law Firm, to fight the bank’s attorney’s in the courtroom, you should be simultaneously working with the lender to obtain a loan modification. See the logic is simple, we protect your interests in the courtroom, which in turn buys you the time you so desperately need to work on a loan modification (repayment plan). Too many times do we get clients who come in and say they want to keep their home and then when we ask what is your plan for realistically achieving that end, they simply state, hiring you guys to defend. It is true, our firm is highly aggressive and experienced in the field of foreclosure defense, but even if we defend the foreclosure for years, sooner or later the case will be set for trial and at that point one of two things is going to happen; the bank is getting the home back or you are walking away with a free house. As you probably imagined, an overwhelming majority of Central Florida courts are not in the business of giving away free homes. Have we won people their homes before, yes. But that would not be prudent legal advice for an attorney to tell a client to simply depend on us winning the home at trial and not to worry about attempting a loan modification in the interim. Unfortunately, loan modifications can be incredibly difficult to obtain as it’s entirely up to the lender as to whether or not you will receive a loan mod. Flat out, it’s a numbers game. The bank plugs in your financials and subsequently determines if you make too much, too little, or hopefully, you qualify for a loan mod. There’s nothing an attorney or a judge can do to force the bank to give a you a loan mod. You see, to do so, would be to force a party (the lender) to retroactively alter the terms (payment amounts) of a preexisting binding contract (the original mortgage) years later. If this was permitted, contract law as we know it would be turned on its head. Thus, by no stretch of the imagination are loan modifications guaranteed, but if you do not try, you won’t have a chance, no matter how slight.

Fortunately for borrowers, due to new federal regulations implemented by the Consumer Financial Protection Bureau (CFPB) in January 2014, it behooves you now more than ever to attempt a loan modification. Whereas before, regardless of whether you were under review for a potential loan mod or even in the middle of making payments on a trial loan mod, your foreclosure trudged on. Under the old regulations, you could theoretically make a payment on July 1st and the Judge could notice your case for trial on July 2nd. Seems counter-intuitive right? That’s because it is. Luckily the powers that be finally got it right. Now, the regulations memorialized in the newly minted Dodd-Frank Act restrict “dual tracking.” What does this mean in plain English? Banks and/or servicers are no longer permitted to simultaneously proceed with a foreclosure while a borrowers loan modification package is under review or the borrower is in the midst of making payments pursuant to a trial loan modification plan. This is fair, this is justice. I mean after all, foreclosure is an action in equity right? Thus, a bank’s attorneys cannot push a case along where the borrower is attempting loan mod. This is great news because even if you do not inevitably obtain the permanent loan mod (which is clearly the ultimate goal) you can at least add significant amounts of time to the defense of your foreclosure by having the case removed to inactive status pursuant to the new regulations. In other words you now have nothing to lose when it comes to applying for loan mod. You can potentially save your home by obtaining a loan mod but worst case scenario you’ve temporarily stopped the foreclosure, which ultimately results in you and your family remaining in your home longer. The way it should be.

If you or somebody you know is faced with a foreclosure and is willing to fight to keep their home, it’s importannt that you take proactive steps to obtain that goal. The best way to do achieve this is by way of a loan modification. Loan modification is not an enjoyable process, but it is a necessary one. It’s imperative that you have an attorney that can not only guide you down the best path towards retaining your home, but it’s equally as important to have an attorney who obtains the skill and knowledge to leverage your good faith attempt to save your home into buying you more time! If you or anyone you know is fighting to save their house, please do not hesitate to call our experienced staff here at The Freedom Law Firm. We are here to answer your questions, anytime, day or night. 407-808-1435

 

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What Happens When an Attorney and a Judge Decide to Brawl in the Middle of Court


Judge decides to serve up a unique brand of justice: What happens when a attorney and a judge decide to brawl in the middle of a court. The entire incident lasted about a minute. Apparently the public defender stepped up to defend a man for assault charges.

“Two charges assault and resisting. You have the public defender, what do you want to do?” asked the judge.

“Did they file?” quipped the public defender

They have.” The judge answered quickly.

“I’m not waiving.” Said Weinstock with an upward inflection.

“…Alright. What do you want to do?” asked the judge after some hesitation.

“What do YOU want to do? I’m not waiving. *laughs* You want to set if for trial, set if for trial.” The public defender shot back at the judge.

“Alright.” Said the judge sounding like he was already losing his patience.

The public defender continued: “You want to set if for docket sounding, set if for docket sounding. I am not waiving in any case.”

The judge takes a deep breath and sighs loudly.

“The-this is an emergency created by the state-”

The public defender is cut off by the judge “You know, If I had a rock, I would throw it at you right now,” Murphy said. “Stop pissing me off. Just sit down. I’ll take care of it. I don’t need your help. Sit. down.”

“Now- I’m the public defender, I have the right to be here and I have a right to stand and represent my clients- ” Weinstock quickly retorted.

“I SAID SIT DOWN!,” Murphy yelled. “If you want to fight, let’s go out back and I’ll just beat your (expletive).”

“Let’s go. Right now,” Weinstock said.

The two justice officials strode into the hallway just outside of the court room where judge Murphy allegedly took hold of public defender Weinstock’s collar and began beating him. The entire altercation lasted less than a minute from start to finish.

You can still hear the two men yelling at each other after they go off camera. Eventually a Brevard County deputy separated the men to stop the brawl. Neither men decided to press charges.

With foreclosure defense, courtrooms can become pretty heated. Our goal is to keep our client’s in their homes for as long as possible. What would appear to be a simple matter is actually more in-depth and complicated. We make sure to convince the judge it is not a simple black and white case of non-payment. Not all judges are so easily convinced but everyone usually remains respectful.

That is no excuse for violence but the public defender did not appear to be respectful to the judge and the judge probably not having a good day as it was.

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Beating A Final Summary Judgement

final summary judgement

 

 Beating A Final Summary Judgment
When it comes to a foreclosure lawsuit, there are two venues in which a bank can officially win their case and set a sale date on your home. The obvious one and more well known of the two would be at a trial. Although they are non-jury trials, it can still be costly for the banks with regard to both time and finances, as they have to fly in their witness, typically a random bank rep that has zero personal knowledge of the file. Due to the increased cost of a formal trial, banks more often pursue a second means for which to obtain a judgment against you and that is at a hearing on a Motion for Final Summary Judgment. Banks opt for the latter route for several reasons but ultimately because it’s easy to schedule, it’s quick and they are not required to fly out a witness; they simply sit down with the judge and have it resolved within a matter of minutes just like any other hearing. However, the major difference between the Motion for Summary Judgment and any old hearing is that this hearing can have the same implications as a trial, i.e. it will likely end with you losing your home and a sale date being set (unless of course, you hire an experienced foreclosure attorney well ahead of time). The problem is, many borrowers are unaware of exactly what a Final Summary Judgment means or the significant impact it can have on their case and consequently, their life. For instance, we often times get calls from potential clients who casually state something to the effect of “Hi, I’ve been trying to handle the foreclosure myself but now the Court just sent me Notice for some Final Judgment hearing that I guess is taking place in a couple of days. Is this a big deal?” YES!!!!! THIS IS A VERY BIG DEAL!  It means exactly what it’s called….FINAL……..JUDGMENT. I.e. you lose the home. It is absolutely imperative that you hire an experienced attorney that knows exactly what documents to file and when to file them if you want any chance of beating this Final Summary Judgment and living to fight another day.

Florida Rule of Civil Procedure 1.510 which governs Final Summary Judgments states in pertinent part, “The movant shall serve the motion at least 20 days before the time fixed for the hearingand shall also serve at that time copies of any summary judgment evidence on which the movant relies that has not already been filed with the court. The adverse party shall identify, by notice mailed to the movant’s attorney at least 5 days prior to the day of the hearing, or delivered no later than 5:00 p.m. 2 business days prior to the day of the hearing, any summary judgment evidence on which the adverse party relies.” This portion of the rule is critical because this answers the question of WHEN to file. The Bank MUST file any and all evidence for which they base their motion at least 20 days prior to any hearing. However, the Borrower may deliver any of their evidence all the way up to 2 business days prior to the hearing. Thus, if the affidavits/summary judgment evidence that you plan on using to defend against summary judgment is not timely filed, they are excluded and you could easily lose your home based on this technicality. I know this might sound harsh but I’ve seen this happen to a number of pro se Defendants who were not familiar with the rules.

Furthermore, Rule 1.510 goes on to state, “The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” This portion of the rule is equally as important as the first because this answers the question of WHAT to file AND what standard the Judge MUST follow when ruling on a Final Summary Judgment. The main item to focus on here is Affidavits. You see, based on the clear reading of the rule, the standard the Judge must adhere to when making their decision is whether after all summary judgment evidence (such as sworn affidavits) have been filed, are there any genuine issues of material fact in dispute? Thus, if you can show that a single material fact is in dispute, the judge is precluded from entering Summary Judgment in favor of the bank. The vehicles we use to establish these evidentiary disputes of fact are Affidavits. You start by drafting an Affidavit in Opposition to Final Summary Judgment which lists every argument you can reasonably make including, but not limited to, lack of standing, failure to satisfy conditions precedent (Paragraph 22 Notice letter), etc. Once you’ve articulated every single argument you can raise within the Affidavit, the client must sign and have the affidavit Notarized, which makes it sworn, which in turn makes it FSJ evidence under the rule. Once that’s done, you cannot forget about Rule 1, it MUST be timely filed/served on the Bank’s attorneys at least 2 business days prior to the hearing. Then, you have an aggressive and experienced attorney such as the ones on our Team here at The Freedom Law Firm vehemently argue each of these points at the FSJ hearing. By following this strategy, you can greatly increase your chances of victory at any Final Summary Judgment hearing. And while winning an FSJ does not mean you win your house free and clear, it does allow you to live to fight another day!

If you are someone that has recently received notice of a final summary judgment hearing on your foreclosure case, don’t panic…..just call our experienced team here at The Freedom Law Firm right away! A thorough knowledge of Rule 1.510 is critical to the defense of your foreclosure and can ultimately decide whether you remain in your home!  Call us now, any time, day or night! 407-883-2618 FREE CONSULTATIONS!

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Foreclosure Defense: When The Homeowner Tags Out, You Can Tag In

foreclosure defense when they tag out you tag in

If The Homeowner Tags Out, You Can Still Tag In: Purchasing Property Already in Foreclosure

Most of the foreclosure clients we have walk through our doors are families trying to stay in their homes or at the very least are the original borrowers on the Note who are looking to either buy time while they renovate the property for sale or rent out the property. Either way, most of the time we are representing the person(s) that were an original borrower on the Mortgage and therefore have contractual rights that the bank must abide by. However, every now and then we come across a client that is now the title owner of the property (thus they have an interest in the action) but acquired their interest subsequent to the filing of the foreclosure action. Because these newly minted owners were not a party to the original mortgage/contract, they are NOT usually a named party in the lawsuit. You may be wondering how this is possible but the answer is actually quite simple. A couple of the more common scenarios involve a situation where either the original borrower had given up on the property once the foreclosure was filed against them so they simply deeded their interest to a third party buyer or they file for bankruptcy Chapter 7, erase all of their debt and walk away from the property, typically resulting in a third party purchasing the property from the bankruptcy trustee. The real question is, what rights do these new owners have considering they were not a party in privity of contract with the bank? Now the banks will have you believe that this new buyer has absolutely no rights and cannot defend the foreclosure in their name because they took title to the property after the lis pendens had been filed. Their logic is that the new buyer was well aware of what they were getting into when they bought the property and knowingly proceeded in acquiring title “subject to” the prior mortgage. There is clear case law that would tend to side with the banks if the attorney was looking to substitute in these new owners via a “Motion to Intervene” which is the typical channel in which a new party can step into an action. However, there is a different, less common strategy lawyers can use to afford these new owners the right to defend the foreclosure as if they were stepping into the shoes of the original borrowers but unfortunately its not a tactic that many attorneys implement and in most instances, don’t even know exists.

Instead of going the all too common route of filing a Motion to Intervene, which based on clear Florida case law will likely fail if the new party took title subsequent to the filing of the lis pendens, I instead recommend taking a more novel and clever route. I suggest filing a Motion wherein you petition the Court to Designate the new owner the Real Party in Interest via Florida Rule of Civil Procedure 1.260(c). Again, the banks attorneys will whine to the Judge that there is clear case law stating a party can’t intervene after the lis pendens has been filed. However, what they’re failing to consider is that all of the case law allegedly in their favor is factually distinguishable because those cases only relate to Motions to Intervene; none of them specifically regard Motions to Designate Real Party in Interest. Argue your point by stating, “When a party transfers interests that are the subject of pending litigation, Florida Rule of Civil Procedure 1.260(c) provides that upon motion, the Court shall designate whether the Real Party in Interest shall (1) proceed in the name of the original named party, (2) be added as a party, or (3) shall be substituted in for the original party. See, Sun States Utilities, Inc. v. Destin Water Users, Inc. 696 So.2d 944, (Fla. 1st DCA 1997).” So as you can tell, there is not just the Florida Rules of Civil Procedure to support this argument, but also clear Florida case law. This is a novel argument which has proven to be successful in various Courts throughout Central Florida. 

If you or someone you know has purchased a property out of bankruptcy or have obtained title to a property from the original borrower, it’s important to know that you have the right to fight the bank as well. Just because the original borrower has decided to move on doesn’t mean the bank gets a fast pass to your new property. You are the rightful new owner and you have rights!  It is important to hire a Florida Foreclosure Attorney that is well versed in recent case law, especially when those new developments could be a major weapon in the fight to keep your home. If you have any questions concerning your foreclosure case, do not hesitate to call our experienced and aggressive team here at The Freedom Law Firm. We are here to FIGHT to KEEP YOU IN YOUR HOME. Call FREE day or night. 407-883-2618.  

 

 

 

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Recent Case Law: Bank’s Paragraph 22 “Substantial” Compliance Argument Falls Short

paragraph 22 falls shortRecent Case Law: Bank’s Paragraph 22 “Substantial” Compliance Argument Falls Short

Here at The Freedom Law Firm, many of our clients live right here in Orange County, which falls within Florida’s Fifth District Court of Appeals. Recently, a very promising Court decision in Samaroo v. Wells Fargo Bank  emerged out of Florida’s 5th DCA. While the opinion has not yet been officially released for Publication, it should soon create new law that will undoubtedly help Florida Homeowner’s in their fight against foreclosure. The decision specifically relates to the written notice requirement found in Paragraph 22 of most modern day mortgages. For years banks have been arguing that their notice of acceleration letters “substantially” comply with the clearly written requirements found in the subject mortgages. However, this decision strikes a major blow to the banks tired arguments, and actually requires the banks to adhere to the plain requirements found in the mortgages THEY DRAFTED.

The opinion specifically states in pertinent part, “Pamela Samaroo and Jessie Samaroo ["the Samaroos"] appeal the entry of summary final judgment of mortgage foreclosure in favor of Wells Fargo Bank, National Association…. On April 8, 2009, Wells Fargo filed its complaint to foreclose on the Samaroos’ mortgage. Wells Fargo alleged that there had been a default under the note and mortgage, and that all conditions precedent to the filing of the action had been performed or had occurred. The Samaroos filed an amended answer and affirmative defenses, asserting, among other defenses, that Wells Fargo had failed to give the Samaroos notice of default in compliance with paragraph 22 of the mortgage. Wells Fargo asserted that “a notice of default letter was sent to Defendant Pamela Samaroo, in accordance with Paragraph 22 of the Mortgage, on December 17, 2008.” It ultimately argued: “Accordingly, because Plaintiff provided the notice of default in compliance with paragraph 22 of the Mortgage, Defendants’ Tenth, Nineteenth, and Twentieth Affirmative Defenses do not bar entry of Final Summary Judgment.”

A standard Paragraph 22 notice requirement will typically read: “Acceleration; Remedies. Lender shall give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Instrument (but not prior to acceleration under Section 18 unless Applicable Law provides otherwise). The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument, foreclosure by judicial proceeding and sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to assert in the foreclosure proceeding the non-existence of a default or any other defense of Borrower to acceleration and foreclosure. If the default is not cured on or before the date specified in the notice, Lender at its option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may foreclose this Security Instrument by judicial proceeding. Lender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this Section 22, including, but not limited to, reasonable attorneys’ fees and costs of title evidence.”

As is made painfully clear by reading the above paragraph, the bank is required to inform the borrower of their right to reinstate the loan PRIOR to accelerating the debt (more commonly known as foreclosing). However, many of the letters that banks “allegedly” send the borrower prior to foreclosing do not inform the borrower of their right to reinstate whatsoever. That was precisely what happened in this case.

The opinion goes on to state, “To refute the Samaroos’ affirmative defense that Wells Fargo failed to give the Samaroos notice prior to acceleration that complied with the notice requirements set forth in paragraph 22 of the mortgage, Wells Fargo relied upon the default letter that is attached to the affidavit in support of its motion for summary judgment. However, it is apparent in comparing the letter to the requirements of paragraph 22 that it does not comply with the notice requirements set forth in paragraph 22 of the mortgage. Importantly, it does not inform the Samaroos of their right to reinstate after acceleration. Rather, it informs the Samaroos that the “acceptance of one or more payments for less than the amount required to cure the default shall not be deemed to reinstate [their] loan or waive any acceleration of the loan.” This in no way suggests the right to reinstate after acceleration. See Kurian v.Wells Fargo Bank, Nat’l Ass’n, 114 So. 3d 1052, 1055 (Fla. 4th DCA 2013) (“The letter attached to the Complaint] did not advise of the default, provide an opportunity to cure, or provide thirty days in which to do so. The letter attached to the Complaint did not satisfy section 22′s requirements.”); Judy v. MSMC Venture, LLC, 100 So. 3d 1287, 1289 (Fla. 2d DCA 2012). Wells Fargo contends that it “substantially” complied with the contractual notice requirements, an argument we cannot credit. None of the cases cited by Wells Fargo involved compliance with pre-acceleration notice requirements contained in a mortgage. Its own mortgage specified the important information that it was bound to give its borrower in default, and it simply failed to do so.

As you can see, this is one powerful instance where an appellate Court said enough is enough and required the banks to actually adhere to the terms of the Contract that THEY themselves drafted. Banks attempt to make these improper arguments everyday in Court which is why it is important that you have an experienced attorney that knows how to force the bank to follow their own rules. It can literally mean the difference in keeping your home or losing it at final summary judgment. Do not allow the banks to cut corners in an attempt to steal your home. Call us now, any time, day or night!407-883-2618 FREE CONSULTATIONS!

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FORECLOSURE DEFENSE: A BATTLE ON TWO FRONTS

foreclosure defense a battle on two fronts
Over the last few months I have been noticing an unsettling trend developing with certain Courts in counties across Central Florida, and I must say, it’s deeply concerning. While a vast majority of Judges in this area still adhere to the clear parameters of the law when moving these cases along, a very select few have now begun automatically setting cases for trial, despite the fact that the case is clearly not “at issue” pursuant to the plain language of Florida Rule of Civil Procedure 1.440.

As recently as a year or so ago, a foreclosure lawsuit was still a battle waged between Plaintiff’s counsel and Defense counsel, and that’s it. Then, over time and with the passing of recent laws, including but not limited to House Bill 87, the Courts began feeling more and more pressure from the legislature to expedite these foreclosure matters in an attempt to combat Florida’s foreclosure crisis, which has been bogging down our court system for years. Thus, the Court more readily began stepping in and forcing these cases into motion. Which brings to mind Newton’s Third Law of Motion: which is, for every action, there is an equal and opposite reaction. Point being, when the legislature places pressure on the Judiciary to speed things up (action), the Judiciary is going to implement tactics that force these cases along, even if sometimes those tactics are premature (reaction). Now don’t get me wrong, there’s nothing wrong with a Judge taking precautionary measures to make sure foreclosure cases don’t linger around for years on end but when the Court’s begin to act in clear defiance of the plain rules simply to speed the case up, that is a major problem.

The first significant trend in the move towards hastening these cases towards a resolution was the prevalence of the Case Management Conference in the foreclosure defense process. In the beginning, these seemed innocent enough….”Oh, the Court simply wants to check up on the case and make sure the parties are actively pushing the case forward.” However, that naive notion quickly changed. Over the matter of a few short months, the Case Management Conference clearly translated to: I am going to set this case for trial in approximately 45 days unless you, Defense Counsel, can clearly show me that the case is not “at issue”. Again, there’s nothing patently wrong with this method. Judge’s have every right to set a case for trial if the matter is “at issue” pursuant to Rule 1.440 and the parties have already partook in reasonable discovery. Rule 1.440 states in pertinent part, “SETTING ACTION FOR TRIAL - (a) When at Issue. An action is at issue after any motions directed to the last pleading served have been disposed of or, if no such motions are served, 20 days after service of the last pleading.” The issue I have, and the basis for my blog here today, is the all to common scene where you go to a Case Management Conference wherein both you AND the Bank’s attorney agree that the case is clearly not at issue and should not be set for trial because of an outstanding Motion to Dismiss, and the Judge (a very small number of them) looks right at you and sets it for trial anyways. Even after you protest with the clear language of the rule, they again, reiterate the fact that despite the rule, the case will be set for trial. This can be a very sobering moment for a foreclosure defense attorney.

With the recent pressure placed on the Judiciary by the legislature, as evidenced through the passage of recent laws, foreclosure defense attorneys are commonly finding themselves battling not just the bank’s attorneys, but the Courts as well. If your case gets set for a Case Management Conference, there is a chance that it could be improperly set for trial, which means less time in the home for you. If this occurs it is vitally important that you have retained experienced and aggressive foreclosure defense counsel that will immediately file a Motion for Reconsideration or Motion to Strike Trial Order which cites the clear case law precluding such action. If you have any questions regarding Case Management Conferences or any foreclosure matter, be sure to contact our team here at The Freedom Law Firm anytime, day or night. 407-883-2618. We are here to fight to keep you in your home.

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MOTION TO STRIKE ANSWER AND AFFIRMATIVE DEFENSES

Strike PictureOne unsettling theme that we as foreclosure defense attorneys often see play out is that within weeks of the Defendant filing their Answer and Affirmative Defenses (typically within 20 days of any Motion to Dismiss being denied) the Plaintiff’s attorney, almost as a physical reaction, files a Motion to Strike Answers and Affirmative Defenses. While there is nothing patently wrong with the banks filing of a Motion to Strike Answers and Affirmative Defenses, the issue I take is the way in which the Bank’s attempt to argue them at the hearing and respectively, the routine manner in which the Court’s so liberally grant them. The trend I’m speaking of, is that within the last year or so, the banks now argue their Motion to Strike as if it’s the Defendant’s burden to prove each affirmative defense as supported with every specific supporting fact and if the Defendant does not support each defense with the utmost detailed facts, then that affirmative defense must be stricken. Essentially, the banks make blanket statements that the defendants affirmative defenses are legally conclusive and are unsupported by any specific facts. The problem is, this tactic is slowly shifting the burden of proof from the Plaintiff and placing it on the Defendant’s shoulders. i.e. requiring the Defendant to disprove the case and NOT forcing the Plaintiff to prove their case, which is clearly the well established standard. As stated, the law governing these types of motions, both case law and statutory, is very clear.

Florida Rule of Civil Procedure § 1.140(f) states in penitent part, “a party may move to strike or the court may strike redundant, immaterial, impertinent, or scandalous matter from any pleading at any time.” Thus, unless the affirmative defense has been duplicated multiple times, which often times they are not, then these defenses are not redundant. Additionally, almost never will an affirmative defense be immaterial or impertinent. Lastly, I have never witnessed a bank’s attorney argue that the Defendant’s affirmative defense is scandalous. So, you may be wondering, if the banks do not argue one of the four scenarios as outlined in Rule 1.140 when moving to strike our defenses, then how can they possibly argue that these defenses should be stricken? As stated in the aforementioned paragraph, they try to contort the law which outlines the standard and misguide the court into shifting the burden on the Defendant by asserting that each defense is insufficiently supported by specific factual detail. To that sentiment I rebut, how can the defendant possibly raise every fact needed to conclusively prove their Affirmative Defense if discovery is still pending? Hence, if discovery, the tool parties use to collect material facts, is incomplete, then how could we possibly have all the facts necessary to carry the misplaced burden asserted by Plaintiff? The answer is, we cannot. With regards to a Motion to Strike, the courts have clearly spoken and have asserted that the proper standard to follow when deciding on whether to strike the affirmative defense is whether the defense is “legally sufficient on its face”. Citizens & S. Realty Investors v. Lastition, 332 So. 2d 357, 358 (Fla. 4th DCA 1976). Case law asserts that when a lawsuit is first filed and discovery is still ongoing, the purpose of each affirmative defense is to clearly identify what the Defendant intends to prove, not what they must prove at the time of filing their Answer. Another case which illustrates this notion is Zito v. Washington Federal Sav. & Loan Asso., 318 So. 2d 175 (Fla. 3d DCA 1975). That appellate court stated in pertinent part, “As in plaintiff’s statement of claim, the requirement of certainty will be insisted upon in the pleading of a defense; and the certainty required is that the pleader must set forth the facts in such a manner as to reasonably inform his adversary of what is proposed to be proved in order to provide the latter with a fair opportunity to meet it and prepare his evidence.” Continuing on, Gonzalez v. NAFH Nat’l Bank, 93 So. 3d 1054 (Fla. 3d DCA 2012) states, “Florida Rule of Civil Procedure 1.140(f) provides that “[a] party may move to strike or the court may strike redundant, immaterial, impertinent, or scandalous matter from any pleading at any time.” “A motion to strike a defense tests only the legal sufficiency of the defense.” Burns v. Equilease Corp., 357 So. 2d 786, 787 (Fla. 3d DCA 1978). “Where . . . a defense is legally sufficient on its face and presents a bona fide issue of fact, it is improper to grant a motion to strike.” Hulley v. Cape Kennedy Leasing Corp., 376 So. 2d 884, 885 (Fla. 5th DCA 1979) (citations omitted); Citizens & S. Realty Investors v. Lastition, 332 So. 2d 357, 358 (Fl. 4th DCA 1976) (reversing an order striking an affirmative defense where “[t]he defense was legally sufficient upon its face and, as reflected, there were evident, bona fide and critical issues of fact . . . created”); Pentecostal Holiness Church, Inc. v. Mauney, 270 So. 2d 762, 769 (Fla. 4th DCA 1972) (finding that a Rule 1.140(f) motion to strike “should only be granted if material is wholly irrelevant, can have no bearing on the equities and no influence on the decision”). An affirmative defense may not be stricken “merely because it appears to a judge that the defendant may be unable to produce evidence at trial to sustain such a defense.” Bay Colony Office Bldg. Joint Venture v. Wachovia Mortgage Co., 342 So. 2d 1005, 1006 (Fla. 4th DCA 1977).”

Based on the clear reading of the law, when discovery is still ongoing, as is the case virtually every time an Answer is filed, the Defendant does not have to prove and assert every specific material fact in support of their defense in order to avoid having their argument stricken. It is the Plaintiff that must prove the Affirmative Defense is legally insufficient on its face, not the other way around. If you were unfamiliar with this type of motion and how it should be argued, it is imperative that you call our our experienced and aggressive foreclosure defense team here at The Freedom Law Firm. Call us now, any time, day or night! 407-883-2618 FREE CONSULTATIONS!

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