Set for Trial
If a foreclosure action is not resolved through negotiation after the action is filed, borrowers can expect at some point their case will be set for trial.
Because the backlog of foreclosure cases in Florida is so enormous, the exact timing varies. However, state legislative efforts to expedite the process could mean a hearing date is set within 20 days after you receive an order to show cause.
Our experienced Miami foreclosure defense lawyers know courts are eager to plow through and dispose of these cases as fast as possible. When no defense is asserted, your interests are given minimal consideration. If a case is set for trial, you must act quickly.
Foreclosure defendants who fail to file a response, don’t file a response specifically contesting the foreclosure, or who don’t show up to the hearing, may waive the right to be heard by the court, often resulting in a default judgment.
Any final judgment of foreclosure in the bank’s favor will mean you will be subject to eviction. It’s also grounds for a possible deficiency judgment that could cost you tens of thousands of dollars if the home sells at auction for less than you owe, which is likely.
This is why it is so important to move on these issues as soon as possible with the help of an experienced foreclosure defense lawyer. It may still be possible to negotiate a workable foreclosure alternative at this point, depending on the circumstances.
At the very least, we can help you argue for favorable terms in the foreclosure. We work tirelessly to develop facts that will force resolution on better terms. In cases where lenders or servicers violated federal and state regulations or civil procedure, it could mean outright dismissal of a case. Alternatively, it could mean a waiver a deficiency judgment if your property is underwater (you owe more than it’s worth). The potential savings here is significant.
Understand too that a properly-defended foreclosure could take years for the bank to fight. While you assert these defenses, you have the right to continue living in your home. All borrowers have the right to make the bank prove its case. With an experienced law firm, settlement on favorable terms is always a possibility.Florida Foreclosure: Motion for Summary Judgment
Most banks don’t want the case to go trial. They are looking for fast, cheap alternatives to have the case resolved in their favor as quickly as possible.
If you retain your right to a defense by properly responding to the foreclosure complaint and avoid a default judgment, it’s likely the bank will then file a motion for summary judgment.
A summary judgment means there is no genuine issue of material fact for the court to decide, and the bank wins its case as a matter of law. There is no discovery process, as there would be in a trial, requiring the bank to turn over potentially favorable documents or testimony to the homeowner.
A defense lawyer can fight a motion for summary judgment by challenging essential lender assertions. Some questions might include:
- Was there a default under the terms of the note?
- Did the bank have the real note?
- Is this the lender that in fact owns the note?
- Is the affidavit fraudulent?
- Was robo-signing at issue here?
- Was there valid proof of fair market value, or was appraisal fraud an issue?
- Was there proper notice at each phase of this process?
- Did the borrower receive notice of acceleration before the foreclosure action was filed?
- Were state or federal homeowner protection laws violated at any point in the process?
These are just a few potential legal strategies an experienced foreclosure defense firm will deploy, depending upon the unique facts of a homeowner’s case.Florida Foreclosure Defense: Avoid Pro Se Litigation
“Pro Se” means to represent oneself in a legal procedure. It is highly inadvisable.
Prior to the implosion of the housing market, it may have been possible for a person to successfully defend their own foreclosure case, although it was still a risky move. Today, the dramatic change in the legal landscape of foreclosure law – particularly in Florida – means pro se litigants in foreclosure actions almost never win.
It’s one thing to negotiate a short-term loan modification with a bank on your own. Going to court against a major financial institution alone is an entirely different beast. Foreclosure judges are not inclined to grant special consideration or allowances simply because you aren’t a lawyer.
If your foreclosure case has been set for trial, contact an attorney with extensive experience in formulating a proper defense. Negotiate From Strength by calling the Miami Foreclosure Defense Lawyers at Jacobs Keeley today at (305) 358-7991.