Florida Foreclosure Defense – File an Answer!

How can I stop a Florida foreclosure, I read some of the forum and was given this site from a friend, I have been working to get my very high mortgage restuctured and the mortgage company will not responded.

I now have a summons that has to be done b/4 Feb 1st. Not sure where to turn. I have been trying to resolve a issue with the lender still last year when the mortgage was transferred after the 2nd time. within 4 months apart from each other.

I hope someone can answer the question.

My friend is very help with you and your service.

Best Regards
Louise

————

Hi Louise,

First, there has to be the goal of either a loan modification or a short sale, because without such a goal, fighting foreclosure is simply delaying the inevitable.  You have twenty-days from in-hand service to file a response to the summons/complaint and if you let that time pass then you could lose by default and that would be precisely the outcome that the bank desires.

There are attorneys that can help you to file an answer or a motion; if you can’t afford an attorney then do a search in Google for ‘your county or city and legal aid’ (i.e. Tampa legal aid).

While it’s not my recommendation for consumers to defend themselves pro se; nevertheless, answering the complaint pro se is better than not answering at all.  The following is not directed to you but rather it is general information for all of those facing foreclosure in Florida.

In a foreclosure complaint there are allegations that have numbers on the left side of each item that is alleged.  Each number corresponds to an allegation and the answer that is filed should address each allegation with either a ‘denied’ or ‘admitted’ or language to that effect.  Generally speaking (and without lying) most would be ‘denied’ by the defendant and this may be the case even if the allegation is probably true or may be true because the borrower does not have specific knowledge of whether it IS true.  This is making them prove their case and not giving them a quickie default judgment.  For illustration, let’s examine two complaints in Florida foreclosure and their corresponding answers.

Take a look at page two, three and four of this complaint and compare that to page one and two of this answer.

Take a look at page one through four of this complaint and compare that to page one and two of this corresponding answer.

That’s pretty basic, but I wouldn’t leave it at that.  Now we’ll move onto affirmative defenses. 

Paragraph twenty-two of a typical mortgage has an acceleration clause.  Did they send that notice?  Look at affirmative defense #1 on page two of this answer.

Every homeowner is required to receive the homeownership counseling notice within forty-five days of delinquency.  If the borrower gets current and then is late again, they are required to be sent another notice within forty-five days once again.  You get the picture.  There are serious questions as to whether lenders are sending this notice.  This is listed as affirmative defense #2 on No HUD Counseling Notice on page two.

The borrower is a third-party beneficiary to the pooling and servicing agreement or at least the default loan servicing requirements of the P&S agreement.  Now the lender doesn’t want to give the borrower access to the P&S agreement, but that could be obtained later through discovery in the production of documents.  Here is affirmative defense #3 on page two and three: plaintiff failed to comply with applicable pooling and servicing requirements.

If the lender didn’t follow any or all of the above rules then the lender is guilty of #4 failure of good faith and fair dealing, #5 unclean hands, and #6 illegal charges added to balance (page thee and four), so definitely throw those defenses in there too.  If the lender didn’t provide proper notices or follow the default servicing requirements then all of the charges after that point are illegal charges added to the balance.

Many of these foreclosures do not have the assignments recorded properly or request the reestablishment of lost note.  This can be handled through a motion to dismiss or challenging the lender’s standing as in #7 on page four.  Here is an interesting challenge to reestablishing the lost note on page four and five #27 in the failure to state a claim for which relief may be granted and the motion to dismiss reestablishment of lost note in #29-34 on page five and six. 

Many non-purchase money mortgages still within three-years of origination on a consumer’s primary residence are subject to the TILA’s extended right to rescind.  If the TIL disclosure is defective because for example the finance charge is underestimated by over $35 and the borrower is served with a foreclosure complaint then the loan may be rescinded.  This is accomplished by sending a CMRRR rescission notice to the servicing lender, but I would also send it to the foreclosing attorney and of course whoever is listed as plaintiff in the foreclosure action.  In addition, this is listed as an affirmative defense on page three on #21.  Bear in mind that rescission also requires a tender of a remaining balance; however, it should be welcomed news that tender can be made through a short sale and we also have solid case law that tender can be made through a bankruptcy if necessary.  I would be sure to quote this case law reference in the rescission letter that: we are prepared to tender the remaining balance owed through the short sale that is in process or if necessary we can tender through a Chapter 13 please see Jaaskelainen v. Wells Fargo Bank, N.A. (In re Jaaskelainen), 391 B.R. 627 (Bankr. D. Mass. 2008).

Now, let’s look at counterclaims.  Page four through eight of this answer contains counterclaims requesting a declaratory judgment and for illegal consumer collection.  And finally, it concludes with a simple statement requesting a jury trial.  This answer requests the same on page forty-one. 

With regards to the jury trial, I wouldn’t worry too much about going in front of a jury – it’s not going to happen.  Foreclosures in Florida are not normally decided by a jury, although when there are questions of fact (i.e. was notice required under paragraph #22 of the mortgage sent?, was the Homeownership Counseling Notice sent within 45 days?, were the default servicing requirements of the P&S agreement followed?) and these facts are disputed between plaintiff and defendant then this may preclude summary judgment.  Summary judgment is generally appropriate when the relevant facts are either undisputed or there are no material issues of fact remaining for trial and the judge can make a decision as a matter of law.  When there are questions regarding the relevant facts then those questions can be decided by a jury.  But like I mentioned, that’s almost certain not to happen in a Florida foreclosure case.  The plaintiff lender would settle the case with the homeowner (i.e. give the best loan mod in the world, or accept the short sale and remove the tradeline).  

I always have my ‘I am not an attorney’ disclaimer at the bottom of these posts but this time I think it is important to write it more than once.  To be clear, I am not an attorney and this is not to be taken as legal advice.  I recommend that everyone find a qualified attorney to help them to answer the foreclosure complaint but above all I want to see that everyone files and answer – even if it’s not the best answer, it’s still an answer.

What happens after that answer is filed?  It will be time to negotiate that loan modification or short sale as a settlement.  And if a solid answer is filed that includes rescission of the loan and a short sale is pursued, then as part of the settlement IMO the tradeline should be deleted. 

Thanks for the questions and hope this helps.

Paul

This author is not an attorney and this information should not be considered legal advice.  Please consult an attorney for legal advice.