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Foreclosure Summary Judgment Hearings

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Once a foreclosure lawsuit has been filed, particularly a foreclosure here in record-breaking Florida, summary judgments are often part of the bank’s strategy. If the bank can obtain a summary judgment in a foreclosure lawsuit, then it saves them a lot of time and money. If the bank wins at summary judgment hearing it can quickly move forward to a foreclosure sale as part of the foreclosure process – and they often do, ignoring the home owner’s protests or desires.

The summary judgment hearing means the foreclosure lawsuit is resolved fast, because the summary judgment ends the dispute in a “summary” fashion and the bank gets a judgment to use in foreclosure proceedings on the home.

The bank doesn’t have to provide any documents or testimony to the home owner / borrower that it would have to do in the “discovery process” because the case is over. It’s a slam dunk for the lender.

 

Florida Foreclosure Lawsuits Don’t Stop Just Because Borrower Negotiates or Short Sales

In Florida, many home owners who are behind on their mortgages and fearing foreclosure try in good faith to make deals with the bank – to negotiate a modification of the mortgage so they can keep their home. Others try to resolve the matter with their mortgage bank by a short sale of the property. Banks began to welcome Florida short sales more in 2012 and some, like Bank of America, were even offering seminars and special web site aides for short sellers.

These are all good things: it is good for borrowers and banks to try and work things out. However, for a while now there has been a pattern of banks filing a foreclosure case and not really explaining to the borrower that while they are trying to make a deal with the bank (loan modification, short sale), the bank is moving forward with the foreclosure lawsuit.

Generally speaking, there’s no rule that the bank cannot go ahead with a foreclosure lawsuit while negotiations are going on with the borrower to modify the mortgage terms or to short sell the house (unless the homeowner is pursuing a program under the governments Making Home Affordabe program). Formal workout proceedings do not stop a Florida lawsuit that is on file at the courthouse. To put a halt to the lawsuit means to stop or “stay” its progress – and that is a negotiated agreement all by itself.

 

The Foreclosure Summary Judgment Hearing

Florida home owners may first understand that the foreclosure process has never stopped despite their workout with the bank when they get a Notice of Summary Judgment Hearing. It’s a formal, legal document served upon the party in a lawsuit advising them of a hearing being scheduled in their case and giving the time and date. The notice also gives the basis for the hearing: the bank is asking for a “summary judgment.” People without lawyers will get these notices personally served upon them; if they have a foreclosure defense attorney, then their foreclosure defense lawyer will get the notice.

The Notice of Summary Judgment Hearing gives a time deadline to follow: according to the Florida Rules of Civil Procedure, the filing of that hearing set a time ticker running on when any objections to that hearing’s request: there are only a certain number of days to research, investigate, write, edit, finalize, file, and serve a response to this request by the bank. There’s a time deadline set by law on filing objections to evidence and on filing legal arguments (briefing) to the bank’s request.

“It’s sad but true that there have been situations where Florida home owners did not have a lawyer, and when they got their Notice of Summary Judgment Hearing, they did not act on it. Many borrowers think that if they are negotiating with the bank, then the court case is on hold. That’s not always true. There are times when Florida borrowers have ignored the Summary Judgment Hearing Notice and as a result, the bank has obtained a foreclosure judgment and sold their home right out from under them.”

-Larry Tolchinsky

Summary judgment proceedings END the case. Sadly, Florida borrowers and Florida home owners who are trying to deal with their bank without hiring their own lawyer can be blindsided by a summary judgment notice of hearing.   Even then, hiring a Florida foreclosure defense lawyer means the foreclosure attorney is fighting an uphill battle because this is a hearing to END the case: usually, these fights will have lot of time for preparation (gathering documents, testimony, experts, etc.). Without a lawyer, most home owner / borrowers haven’t asked for formal discovery and the bank, of course, isn’t going to turn over its internal files, etc. voluntarily. Hiring a lawyer after you get a Florida Notice of Summary Judgment Hearing is not in the best interests of the home owner / borrower.

Foreclosure Summary Judgments in Florida

Summary Judgments in Florida are fast ways to get a judgment and end a lawsuit without the need of a trial. Legally, they are tools to be used to get cases off the docket that don’t need a jury because there are no fact arguments for the jury to weigh and decide what is true: the parties don’t have an argument over facts, they have an argument over law. No fact finder is needed in a case where a summary judgment can be granted.

Judges like summary judgments because they end the case efficiently. In Florida, with its backlog of foreclosure lawsuit filings, courts being able to get foreclosure cases resolved is very, very good and summary judgments are often a good fit for a foreclosure case: the facts of default may not be in dispute. The payments were for a set amount, the payments were not paid, and there was a default.

Once a bank has complied with the proper steps to foreclose under both the mortgage documents and Florida law, then the bank can move for summary judgment to get a foreclosure judgment so the bank can foreclose on the house.

That request for summary judgment, so the bank can take the house in foreclosure, begins with the Notice of Summary Judgment Hearing.

What is a Summary Judgment?

Rule 1.150 of the Florida Rules of Civil Procedure governs summary judgments in Florida courts (scroll down to read the rule itself).   Summary Judgments are used to efficiently end a lawsuit where there are no facts in dispute: affidavits are filed to establish that there is no argument on the facts (say, how much is owed on a mortgage) and that the judge only needs to decide on what the answers are to the legal questions in the case.

Defending Against A Florida Foreclosure Summary Judgment

Florida foreclosure defense lawyers work hard to fight these summary judgment requests made by banks because it has been shown all too often in the past few years that their documentation is flawed or sometimes even fraudulent with robosigning issues, etc. Florida foreclosure defense attorneys look for situations where they can ask questions like:

  • Has there been a default under the terms of the note?
  • Does the bank have the real note?
  • Is this the bank that owns the note?
  • Is the affidavit fraudulent?
  • Is there a robosigning problem here?
  • Was there valid proof of fair market value?
  • Is there appraisal fraud?
  • Has there been proper notice?
  • Did the borrower receive notice of acceleration before the lawsuit was filed?

Florida foreclosure defense attorneys will work to defeat the summary judgment request at the summary judgment hearing, with one goal being to get discovery of all the bank’s documents and taking testimony through witness statements and depositions of the bank’s knowledge or events, in order to defeat their foreclosure action as well as to find valid defenses to the foreclosure proceeding and to find a solution to the problem that is in the best interests of the borrower / home owner in their particular situation.

 

Do You Have A Question?

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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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FLORIDA RULE 1.510. SUMMARY JUDGMENT

(a) For Claimant. A party seeking to recover upon a claim, counterclaim, cross claim, or third-party claim or to obtain a declaratory judgment may move for a summary judgment in that party’s favor upon all or any part thereof with or without supporting affidavits at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party.

(b) For Defending Party. A party against whom a claim, counterclaim, cross claim, or third-party claim is asserted or a declaratory judgment is sought may move for a summary judgment in that party’s favor as to all or any part thereof at any time with or without supporting affidavits.

(c) Motion and Proceedings Thereon. The motion shall state with particularity the grounds upon which it is based and the substantial matters of law to be argued and shall specifically identify any affidavits, answers to interrogatories, admissions, depositions, and other materials as would be admissible in evidence (“summary judgment evidence”) on which the movant relies. The movant shall serve the motion at least 20 days before the time fixed for the hearing, and shall also serve at that time a copy 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 served pursuant to rule 1.080 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. To the extent that summary judgment evidence has not already been filed with the court, the adverse party shall serve a copy on the movant by mail at least 5 days prior to the day of the hearing, or by delivery to the movant’s attorney no later than 5:00 p.m. 2 business days prior to the day of hearing. The judgment sought shall be rendered forthwith if the pleadings and summary judgment 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. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.

(d) Case Not Fully Adjudicated on Motion. On motion under this rule if judgment is not rendered upon the whole case or for all the relief asked and a trial or the taking of testimony and a final hearing is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall ascertain, if practicable, what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. On the trial or final hearing of the action the facts so specified shall be deemed established, and the trial or final hearing shall be conducted accordingly.

(e) Form of Affidavits; Further Testimony. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.

(f) When Affidavits Are Unavailable. If it appears from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

(g) Affidavits Made in Bad Faith. If it appears to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur, including reasonable attorneys’ fees, and any offending party or attorney may be adjudged guilty of contempt.

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