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.
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!
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.
One 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!
Once the bank files their civil foreclosure action against you, it is their responsibility, not yours, to prosecute the case (i.e. move the case along). While it might seem like this notion would be one dictated by common sense, we have encountered dozens of cases wherein the banks have filed suit against our client and subsequently proceeded to do NOTHING for almost a year; and when I say nothing I mean the case is completely devoid of ANY record activity whatsoever. As alluded to earlier, it is well settled law that, as the Defendant, it is not your burden to disprove the bank’s case; it is the bank that must carry the burden and prove by a preponderance of the evidence that they are legally entitled to reclaim your property.
Fortunately, Florida Rule of Civil Procedure 1.420(e) has memorialized the law which requires the bank to hasten the case to a conclusion on the merits, and if they do not, the case can be dismissed. Fl. Rule of Civil Procedure 1.420(e) specifically states in pertinent part that, “In all actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 10 months, and no order staying the action has been issued nor stipulation for stay approved by the court, any interested person, whether a party to the action or not, the court, or the clerk of the court may serve notice to all parties that no such activity has occurred. If no such record activity has occurred within the 10 months immediately preceding the service of such notice, and no record activity occurs within the 60 days immediately following the service of such notice, and if no stay was issued or approved prior to the expiration of such 60-day period, the action shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending.” Thus, if the bank “sleeps on their rights” and file absolutely nothing for a period of ten months, the Court, or any party including the defendant, can file a notice of lack of prosecution and a hearing will be set on the matter. The only catch is that the bank is then provided an additional 60 days following that notice in which to file ANYTHING to avoid dismissal of their foreclosure. The legislature, as well as the Courts, have practically bent over backwards to give the banks multiple bites at the apple because when they require that something be filed, they quite literally mean anything. The banks could file something as procedurally ineffectual as a “designation of email” and that will suffice, despite the fact that it does absolutely nothing to assert Plaintiff’s intention to legitimately prosecute this case, and move the record forward. However, even with this great latitude afforded to the banks, some lenders still manage to fail to file nothing, and when this transpires, unless a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending, judges will dismiss these cases. In my experience, many judges do understand that the bank has had multiple opportunities to save their case and if they are still failing to act, the case deserves to be dismissed. As it stands, there are simply too many foreclosures on our civil dockets to allow stagnant cases to dwindle around.
For more free advice on Lack of Prosecution hearings or any other concerns you may have regarding any facet of your foreclosure defense, call the experienced team of Legal Experts at The Freedom Law Firm. Call any time DAY OR NIGHT, absolutely FREE of charge. We’re here to help you stay in your home! 407-883-2618
Throughout the pendency of a foreclosure lawsuit, it is common place for the parties to engage in a process referred to as “discovery.” It is a legal term which describes the procedure parties must follow in order to obtain information from the party they are litigating against; valuable information that enables the attorney to formulate their legal strategy and bolster the strength of their case. For a more in depth explanation of the discovery process, please refer to my previous blog Discovering Your Case, but for purposes of this entry, I will provide a brief overview. There are three different types of discovery attorneys utilize in foreclosure litigation and those include 1. Interrogatories (lists of questions such as “Were there any Assignments of Mortgage or Endorsements that authorize you, the Plaintiff, to bring this foreclosure suit?”) of 2. Requests for Production (Wherein you request the other side to produce actual documents such as a copy of the mortgage and note for which they are basing their case) and 3. Requests for Admissions (requesting the other side to admit or deny certain material facts such as, “Admit that Plaintiff bank does not possess the requisite legal standing to lawfully bring this action).
Today we will focus on the third aforementioned discovery tool, Requests for Admissions. Once a party has filed and served Requests for Admissions upon the opposing party, in our case the bank, the opposing party cannot simply file a response whenever they so choose. The Florida Rules of Civil Procedure require a response or objection within 30 days and if the deadline lapses and no responses have been filed, then all of those Requests for Admissions have become technically admitted. Specifically, Florida Rule of Civil Procedure 1.370 states, “The matter is admitted unless the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter within 30 days after service of the request or such shorter or longer time as the court may allow but, unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of 45 days after service of the process and initial pleading upon the defendant.” Furthermore, any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. Subject to rule 1.200 governing amendment of a pretrial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved by it and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice that party in maintaining an action or defense on the merits. Fla. R. Civ. P. 1.370(b). The Plaintiff may not of its own accord, amend an answer to a request for admission. In Morgan v. Thompson, 427 So.2d 1134 (Fla. 5thDCA 1983), the Fifth District Court of Appeal spoke on this issue when it stated, “Florida Rule of Civil Procedure 1.370 is clear. Unless a timely answer or objection is filed, the requested matter is conclusively admitted and established and remains so unless and until ‘the court on motion permits withdrawal or amendment’ or otherwise grants relief from the effect of the failure to answer.” Morgan, 427 So.2d at 1134 (emphasis added). It went on to succinctly state, “No motion, no relief, no error.”
Let me begin by offering some fairly straight forward but invaluable advice. Anytime someone is served with a foreclosure lawsuit they should immediately seek the advice of an experienced foreclosure defense attorney. I know what you’re thinking, of course an attorney would advise people to immediately hire an attorney when they’re served, they just want to be paid. This may seem like a self-serving statement but it rings true for a myriad of reasons and failing to do so could have devastating effects on your foreclosure defense, which will inevitably result in you spending less time in your home. When an individual is served with s Summons, they will typically have 20 days in which to file a written response with the Court. Naturally, lawsuits make people uncomfortable so a common reaction we see time and time again is for people to try to ignore the problem in hopes that it will simply go away i.e. the old “bury your head in the sand” approach. This is the worst thing one can do as it will result in a Default being entered against you and a default means you have procedurally waived your right to defend the foreclosure, even if you believe meritorious defenses exist. The second, and probably most common response we see people engage in is Defendants filing their own written response with the Court. While a default is more detrimental to your case, the latter scenario can be incredibly damaging to your case and it is the latter scenario that we will focus on here today.
Most of the clients that we meet with that have previously filed their own written response prior to hiring us tell us that they, being non-lawyers, thought they were taking the smart and prudent action by filing a written response and satisfying the Court’s request. However, what they do not know is that by filing their own “response” the Court will in all likelihood deem this a pro se “Answer”. Why is that so bad you ask? The answer is simple (pun intended); pursuant to the Florida Rules of Civil Procedure, once an “Answer” is filed, the Defendant has acquiesced to the Court’s Jurisdiction and as such, any subsequent Motions to Dismiss the case will be deemed moot (aside from some unique instances such as Lack of Prosecution or Failure to File Non-Resident Cost Bond). In layman’s terms, YOU HAVE WAIVED VIRTUALLY ANY CHANCE YOU EVER WOULD’VE HAD AT HAVING THE CASE DISMISSED! Furthermore, in order to preserve your right to raise certain defenses later on during a pivotal hearing such as a Motion for Summary Judgment or Trial, the defenses must be raised with specificity on the record. The way to get these defenses on the record is via a thorough, well written Answer and Affirmative Defenses. Unfortunately, most pro se answers are nothing more than a casual letter, containing a list of legally ineffectual statements, that neither Answer nor Affirmatively Defend any of the allegations listed in the Plaintiff’s Complaint. Pro Se Defendants are often non-lawyers, who are unfamiliar with proper legal terminology and strategy and thus, the result is a response that renders zero legal bearing.Fortunately, Florida Rules of Civil Procedure 1.190 coupled with well-settled Florida Appellate case law allow for an attorney to file a Motion for Leave to Amend Answers and Assert Affirmative Defenses. Essentially this means that even when a client has made the all too common mistake of filing their own pro se answer, an Attorney can still petition the Court to allow the attorney to substitute in their own articulate Answer that includes several formidable legal defenses such as lack of standing or failure to satisfy conditions precedent. Courts have clearly stated that, while leave to amend is to be liberally granted, Courts should be especially liberal when leave to amend pleading is sought at or before a hearing on a motion for summary judgment. Gate Lands Co. v. Old Ponte Vedra Beach Condominium, 715 So.2d 1132, 1135 (Fla. 5th DCA 1998). By filing this Motion to Amend, an experienced and knowledgeable attorney can take a case that would’ve otherwise expeditiously moved to judicial sale in a matter of months, and transform it into an action wherein the bank must actually prove their case each step of the way. While hiring an attorney from the outset is the optimal scenario, the Motion for Leave to Amend Answers allows an attorney the means to mitigate some of the damage the client has already unwittingly inflicted upon their case.
If you have recently been served and are unsure of what to do next, or even if you’ve already filed your own response to a foreclosure complaint, 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.
As many Floridians have been made painfully aware, our State continues to be plagued with the fallout of the housing market collapse of the mid to late 2000′s. According to RealtyTrac, as of November 2013, Florida led the nation in foreclosure activity with 1 out of every 392 housing units in foreclosure. In an effort to combat this foreclosure crisis and unclog the State’s civil foreclosure dockets, the Florida Legislature has enacted several new laws aimed at expediting the foreclosure process. One means by which the state hopes to achieve this end is through the “Order to Show Cause” located in the amendment to Florida Statute 702.10, which became effective in June 2013.
This Amendement allows the lender, or even another lienholder/defendant such an HOA, to request an Order to Show Cause for why Final Summary Judgment should be entered in a mortgage foreclosure action, even if the borrower was just served days prior. Upon receipt of this request, the Court is required to review the request and according to Fl. Stat. 702.10, “If, upon examination of the court file, the court finds that the complaint is verified, complies with s. 702.015, and alleges a cause of action to foreclose on real property, the court shall promptly issue an order directed to the other parties named in the action to show cause why a final judgment of foreclosure should not be entered.” Essentially, the Amendment shifts the burden to the Defendant to now argue why the bank should be legally precluded from taking their home once the request has been made by the Lender. The tricky part is that the Order will name a specific date and time for which the Defendant MUST show up to Court to make these arguments. Further, the Order MUST notify the Defendant that they have the opportunity to file, “defenses by a motion, a responsive pleading, an affidavit, or other papers before the hearing to show cause that raise a genuine issue of material fact which would preclude the entry of summary judgment or otherwise constitute a legal defense to foreclosure shall constitute cause for the court not to enter final judgment.” If filed on time by an experienced attorney, any well drafted Motion to Dismiss will in all likelihood satisfy this statutory requirement and allow you, the borrower, to prevail at the hearing on the Order to Show Cause. However, the problem is that most Defendants are non-lawyers that either over look the hearing date and time, or, even if they are cognizant of the Court-scheduled hearing, they lack the legal acumen necessary to properly draft a Motion to Dismiss which states the legal grounds for why Summary Judgment is improper. Failure to attend this hearing or properly prepare for this hearing (filing the correct paperwork) can result in Final Judgment being expeditiously entered against you and once this happens, a judicial sale of your home is quick to follow.
Do not allow the banks to steal your home in a matter of days. If you have been recently served with forelcosure papers or believe that a foreclosure suit is on the horizon, contact our experienced and aggressive foreclosure defense team here at The Freedom Law Firm. It is imperative that you hire an experienced attorney to check the docket and file for any potential Order to Show Cause hearings that you may be unaware of, draft and file the proper defensive motions and attend and zealously argue on your behalf to insure success at that hearing. Doing so means defeating the bank and keeping you in YOUR home. Call us now, any time, day or night! 407-883-2618 FREE CONSULTATIONS!
PUMPING THE BREAKS ON THE BANK’S FAST-PASS TO FORECLOSURE
Every day banks are foreclosing on thousands of Americans just like you, however most of these foreclosures are being filed several years after the original promissory note and mortgage had been signed by the borrower. This significant lapse in time between the original signing of the Note and the date for which it’s enforced (via a foreclosure action) can pose a major problem for large banks with less than tidy record keeping practices. In other words, the longer these banks have to hold onto the note, the greater the likelihood they will misplace it, and often times that is precisely what transpires. Common sense would lead one to believe that if a bank is attempting to foreclose on you based on your alleged failure to adhere to the terms of the promissory note, that the bank should at the very least, re required to be in possession of the note for which their entire cause of action is premised.
Fortunately, Florida Statute 673.3011 states in pertinent part that a, “person entitled to enforce” an instrument means: (1) The holder of the instrument; (2) A non-holder in possession of the instrument who has the rights of a holder; or (3) A person not in possession of the instrument who is entitled to enforce the instrument. Florida Statue 673.3021 goes on to state that a “holder in due course” is one who takes an instrument without apparent evidence of forgery or alteration or is not otherwise so irregular or incomplete as to call into question its authenticity AND also paid value, in good faith, and without notice of certain claims and defenses raised by third-party claimants. Once a holder has established these terms by a preponderance of the evidence, they can produce the original note and take legal action to enforce it. This makes logical sense. However, the Florida Legislature has gone one step further and created a legal avenue for those not in possession of the note, such as a large unorganized bank, to enforce it nonetheless. This may come as a shock to many of you and it might appear as if the legislature is giving the bank a fast-pass in the race to foreclose on your home and your concerns are certainly justified. Florida Statute 673.3091 states that where the promissory note has been lost, stolen, or destroyed, the holder may still legally enforce that instrument IF they abide by certain statutory requirements. The statute requires that in order to re-establish a lost note, the MUST prove (a) The person seeking to enforce the instrument was entitled to enforce the instrument when loss of possession occurred, or has directly or indirectly acquired ownership of the instrument from a person who was entitled to enforce the instrument when loss of possession occurred; (b) The loss of possession was not the result of a transfer by the person or a lawful seizure; and (c) The person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process. Section 2 of the statute goes on to require the person seeking enforcement of a lost, destroyed or stolen instrument to prove the terms of the instrument and the person’s right to enforce the instrument.
I highlighted the portion requiring the individual to prove the terms of the Note because this is one of the major areas the banks STILL try to cut corners, in spite of the fact that law already goes so far as to provide them a means to enforce a note they’ve lost! I was just in Court just the other day and was successful in getting a case dismissed because the bank attempted to re-establish a lost note under the aforementioned statute, but when they listed the material terms they were required to prove, they mentioned one date of execution in their Complaint, but a completely different date was listed on the copy of the note they just so happened to “relocate” months after the Complaint was filed. The judge found it none too amusing that despite the law seemingly bending over backwards to allow the banks to enforce notes they’ve already lost, that the Plaintiff’s attorneys could not even take the time to list the correct date of execution and mortgage payment amounts. Suffice it to say that the bank has 30 days to get their act together and at least make it appear like they know what the note even looked like.
If you think the bank has lost your note and is improperly foreclosing on you and your family, don’t hesitate to call our experienced staff here at The Freedom Law Firm. We are here to fight to keep you in your home. Call anytime day or night! 407-883-2618