We notice an alarmingly high number of clients that come through our doors wherein they've been served and either failed to file any paperwork whatsoever, or thought it best that they file their own paperwork and then seek out the advice of experienced counsel after the fact. Both of these options are strongly discouraged and can significantly hinder your foreclosure defense which ultimately results in less time in your home!
For whatever reason, you haven't made your mortgage payments in months, if not years. You know you're probably going in to foreclosure any day now but for some reason the bank just hasn't done anything about it. You begin to wonder if the bank is ever going to make good on their threatening letters and then...... boom!The process server knocks on your door and that lingering dread becomes a reality. It's official, the foreclosure that has been looming over your life has come to your doorsteps.What do you do now?
Having had much experience in the world of Florida foreclosure defense, I've seen thousands of people take one of two main courses of action:
1. Ignore the Foreclosure Summons and Do Nothing
Ignoring the problem is probably the most detrimental to your foreclosure defense, but it is the all too common. Many times when people are served, they simply do nothing about it whatsoever. Now this may be for a myriad of reasons, whether it be that they just do not want to face the realization that they are in fact being foreclosed on and subconsciously just want it to go away, so they avoid facing the problem altogether. Some people don't even know that a home can be defended from bank foreclosure.
Others may just not have the requisite funds to hire an experienced foreclosure attorney and simply do not understand the legal ramifications of failing to respond . Whatever the case may be, when an individual is served with a Summons and copy of the Foreclosure Complaint, they will generally have 20 days to file a written response with the Court.
Despite this ticking time bomb, many clients will let the time expire on their response without having filed a thing. When this occurs, the bank's attorneys will quickly move for default and the courts will have no choice but to enter that default against them. A default is the legal equivalent of waiving the white flag in the war against the bank.
A default equates to waiving any rights you may have had to defend your foreclosure.
Although defaults can be set aside, they inflict great damage to the defense of your foreclosure and put your foreclosure defense behind the proverbial 8 ball before it has even begun.
2. Filing an Answer to the Foreclosure Summons
The second option is when borrowers, or even sometimes inexperienced attorneys, think they are doing the right thing and file an answer. Although filing an answer is better than failing to file anything at all, filing an answer right from the outset can be highly detrimental to your foreclosure defense. This is true for several glaring reasons, although shockingly, many attorneys still seem to be unaware of this. By filing an answer, you immediately acquiesce to the Court's jurisdiction and waive any opportunity to get the case dismissed. Once an Answer is filed, you can not retroactively correct your mistake by filing a subsequent Motion to Dismiss, even if there are sufficient grounds for such a motion. No, you've waived that right by filing your answer and any subsequent motions to dismiss will be deemed moot by the Court. Secondly, not only have you waived your right to possibly have the case dismissed, you've also shaved several months off of your foreclosure defense and exposed your case to possibly being set for trial by the judge. And time lost on your defense equates to less time spent in your home. This is a commodity you cannot afford to waste.What an experienced and knowledgeable attorney would advise you do is upon being served, immediately review the Foreclosure Complaint, and documents attached, and formulate your basis for filing a motion to Dismiss the case.
You can move to dismiss the foreclosure action for several reasons including, but not limited to: lack of jurisdiction, lack of standing, and failure to satisfy conditions precedent.
Once filed, the case is not "at issue" (until the Motion to Dismiss is ordered on) and therefore the judge is legally precluded from setting the case for trial, which is a good thing for the borrower. Further, once filed, the motion must be set for hearing and then heard. This can take several months and even if your motion is ultimately denied, you can always file your answer at that point. For these clear reasons, it is important to know just what actions one should take upon being served with a Foreclosure Complaint.
Filing a Motion to Dismiss is more than likely your best option in that it can prevent the judge from setting your case for trial, can add months to your foreclosure defense and can preserve your right to have the case possibly dismissed. For more free advice on Motions to Dismiss 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
Updated: Jun 22, 2016
Posted by: Charles Franklin