HomeForeclosure Defense

What to Do When You Are Served with a Lawsuit

Service of a Foreclosure Complaint on a Florida Borrower / Home Owner: What’s Next?

In a Florida foreclosure case, the home owner and borrower knows that the bank may file a lawsuit; after all, the mortgage payments haven’t been paid and the borrower should have received a Notice of Default from the bank that formally declares there has been a default on the note. In most cases, Notices of Default have to be sent before the bank can sue the borrower.

That’s also the last formal notice that the bank may send before it (or its lawyer) file the foreclosure lawsuit down at the courthouse. If you don’t get a Notice of Default, then that may be a defense to advance in any future lawsuit. If you don’t get time to fix the default after the notice before the suit is filed, then that may be another foreclosure defense in the home owner’s pocket.

Formally Served With a Florida Foreclosure Lawsuit – The Foreclosure Process Begins

The next step in the Foreclosure Process in Florida is for a home owner / borrower to be formally served with a lawsuit. This is a Summons and it begins the legal process where the Bank is trying to take legal title to the home by foreclosure. It is controlled by Chapter 48 of the Florida Civil Practice and Procedures Code.

It is important to know that in Florida, whenever someone is served with a lawsuit being filed against them:

  • They have 20 days to respond to that lawsuit (see below for their choices)
  • They must be personally served with the lawsuit (though there are cases of “constructive service” by mail, see below)
  • A wife (or husband) can accept service of a Summons for their spouse (“substituted service”)
  • The court records must include a sworn statement from a process server that there was proper service
  • Improper service can mean that you can file a Motion to Quash based upon a defective summons, but this will not dismiss the case – it will get you more time as the Bank will have to correctly issue the Summons (Alias Summons) under Florida Rule of Civil Procedure 1.070.
  • Improper service can sometimes form the basis of a Motion to Dismiss or a Motion to Vacate if there has been a serious error in service of process.

“The problem of improper service in Florida foreclosure cases is huge. For example, in August 2012, Pam Bondi settled with Provest – one of Florida’s biggest process server companies – and Provest will pay almost a half million dollars to the Florida Bar to help Legal Aid Services in a settlement based on the Attorney General’s allegations of improper service of process by Provest in foreclosure cases throughout the State of Florida.”

- Larry Tolchinsky

The Steps to a Foreclosure Lawsuit in Florida against a Florida Home Owner (Borrower)

Given the overwhelming Florida Foreclosure Fraud issues that have been making headlines for several years now, it would appear that any home owner or borrower wishing to fight against the foreclosure lawsuit would be well served by having a Florida foreclosure defense attorney at their side as soon as possible, especially considering the process itself:

1. Bank Files Two Things: Complaint and Lis Pendens

a. Lis Pendens (which translates to “lawsuit pending”) is the name of the document filed at the courthouse to cloud title to the property and give notice that the owner is in default on their mortgage and a foreclosure action is pending against them by the bank; this prevents the sale of the property with clear title.

b. Complaint is the pleading or document that begins the foreclosure case and itemizes the claims being made by the bank against the borrower. In a Foreclosure Complaint, the bank must show a breach of contract has happened and that it has been harmed by:

i. Describing the mortgage contract (names, dates, property involved);

ii. Establishing that this is a legal contract;

iii. Showing how the contract has been breached;

iv. Detailing how the bank has been damaged by this breach.

2. Bank Serves the Borrower with Two Things: the Complaint and a Summons.

a. The borrower gets a copy of the complaint with all its attachments (exhibits).

b. The borrower gets a Summons. The Summons is a formal notice that you have a certain number of days to respond to the complaint that has been filed against you. The number of days is twenty (20) days. They start running on the day that you were served. If you do not file a response, then the bank can get a fast judgment in the case called a “default judgment” and the foreclosure process will immediately follow on the property.

c. Service can be actually serving the documents on the borrower (who is now a defendant in a breach of contract case where the bank is plaintiff) or by “constructive service” where the bank tries to serve you by mail if service is unsuccessful on you in the first go-round.

3. Borrower Files a Response (or not)

a. The home owner / borrower can Move to Dismiss the Complaint if the Complaint is flawed because the bank did not meet the legal requirements in bringing this foreclosure breach of contract action. Here, a Motion to Dismiss can point out failure to do things like serve a Notice of Default or errors in the Complaint’s factual claims (the numbers are wrong, etc.) This will be set for hearing and if the borrower wins, the case can be ended by the judge ordering its dismissal. If he orders it dismissed without prejudice, however, then the bank may be able to fix things and re-file.

b. The borrower / home owner files an Answer. In Florida, an Answer is a formal legal pleading that documents your defenses to the complaint made against you. Legal issues are raised here (affirmative defenses); any claims that you have against the Bank are made (counterclaims); denials are made to the lender’s allegations in the complaint; and for those allegations that are accurate (e.g., the mortgage payment amount), these are admitted.

c. The borrower does nothing. If no response is made to the Complaint, then the Bank can ask for a default judgment from the judge and move forward with taking the home in foreclosure.

4. Discovery Process Begins For Bank and Borrower

a. In Florida, the borrower can ask for files and paperwork and other information from the Bank as well as others who may have relevant things to the case (for example, an appraiser) as soon as the case has been served upon him.

b. The “discovery process” in Florida means that both parties can formally request to review files, get copies of documents, talk with witnesses, take witness statements and testimony, from both the parties to the case as well as others who may have pertinent information. It is from the discovery process that evidence is located for admission at the trial.

c. Florida discovery tools include:

i. Interrogatories, questions that must be answered under oath in front of a notary.

ii. Requests for Production of Documents and Things, where files, documents, and anything else (flash drives, etc.) that may be relevant to the case can be turned over for inspection, review, and copying.

iii. Depositions, where testimony is taken in front of a court reporter under oath which will get the same legal respect as if they were testifying in trial on the witness stand.

5. Bank May File for Foreclosure Summary Judgment

a. Since the Bank must prove a breach of contract case, it has the burden of proving with evidence that it:

i. Has a right to foreclosure under Florida law as shown in the documents;

ii. The exact amount of mortgage debt left due and owing; and

iii. Proof of default on the mortgage under Florida law.

b. If the Bank believes it can prove this early in the case, then it will file for Summary Judgment and send the Borrower a Notice for Summary Judgment Hearing.

c. If the Borrower has pled and can prove Affirmative Defenses to the Bank’s case, then the Borrower files a Response to the Foreclosure Summary Judgment Motion. This may include:

i. Written legal briefing refuting the legal issues argued by the Bank;

ii. Refuting the facts alleged by the Bank in counter-Affidavits.

d. The Borrower can also move to delay the Summary Judgment Hearing to a future date to allow for:

i. Completion of Discovery; and/or

ii. Mediation of the Foreclosure Case.

6. Summary Judgment or Trial

a. If the Bank wins its summary judgment hearing, then the borrower can:

i. File a Motion for Rehearing and ask the judge to reconsider his or her decision;

ii. File an Appeal of the Judgment with the appellate court (a process which will take many months to complete, sometimes over a year);

iii. Continue to try to negotiate with the bank or to short sale the home while the legal process continues.

b. If the Bank loses its summary judgment hearing, then the borrower can:

i. Continue to trial knowing that there is a strong case against the bank;

ii. Request formal mediation by Order of the Court;

iii. Continue to try to negotiate with the bank or to short sale the home while the legal process continues.

 

Do You Have A Question?

Get A Free Case Evaluation - Call (954) 458-8655

Florida foreclosure defense lawyer Larry Tolchinsky is an experienced Florida real estate lawyer with years of experience dealing with the Florida Foreclosure Fraud problem with all its nuances and new developments. Please feel free to contact South Florida foreclosure defense lawyer Larry Tolchinsky today for a free consultation.

 

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