Foreclosure Defense Procedure in Florida

Foreclosure typically begins once you have missed your first mortgage payment, for whatever reason. After a certain period of time, your lender will typically send you a letter called a Notice of Default. This letter will explain that you are behind on your payments, and tell you how much you currently owe your lender. If you do not pay the amount due, and continue to not make mortgage payments, your lender will send you a Notice of Intent to Accelerate, which states that if you do not pay the amount owed and due of missed mortgage payments, then the lender will call the full loan amount due. This letter is typically send out at least 30 days prior to a foreclosure case being filed in the courts.

If you still do not reply to your lender or arrange payment, then the lender will hire a law firm to file a foreclosure case in court against you. The lender will have its law firm draft a Complaint for damages against you, which will state generally: 1) the address of the property and county it is located in; 2) that you owe more than $15,000 to the lender; 3) that you signed a note and mortgage; 4) that you failed to pay that note and mortgage; 5) that you will owe the lender’s attorney’s fees plus interest on the loan balance.

The lender will be required to serve a copy of the complaint, with and attached copy of the note and mortgage, on you, your spouse, any tenant, or any other person with an interest in the property. If the lender cannot serve any of these parties in person by process server, then it will typically serve those parties by what referred to as “service by publication.”

Occasionally, the lender will include a count for a “lost note” or “re-establishment of lost note.” This occurs when the lender cannot reasonably locate your original note and mortgage, but still wishes to enforce their terms. The lender will plead a lost note count pursuant to § 673.3091.

The lender will typically file an affidavit stating that the note and/or mortgage was in its possession but lost or destroyed by no fault of the lender. The lender then can introduce any copy of the note and/or mortgage in place of the original to prove the terms of these documents. Shocking to most homeowners, this is the low standard that the lender must meet to foreclosure when it does not even have the note and/or mortgage in its actual possession at the time it files a foreclosure.

Once a copy of the summons and complaint is served on you, you get 20 days to respond to the allegations in the complaint. You can do this by one of two way: 1) file a motion to dismiss; or 2) file an answer with or without affirmative defenses.

A motion to dismiss challenges the complaint on various grounds; be it jurisdiction of the court, form of the complaint, etc. A common motion to dismiss revolves around a situation where the lender fails to attach the note and/or mortgage to the complaint. Pursuant to Florida Rules of Civil Procedure 1.130, the lender is required to attached all notes, contracts, and other documents to the complaint. From a conceptual standpoint, this makes sense as you would not know what terms the complaint is referring to breaching without a copy of that document.

The homeowner can also challenge the lender’s “standing,” or right, to file the lawsuit. These types of defenses have been mildly effective. Certain defense lawyers have successfully shown that the lender did not own the note and mortgage when the lawsuit was filed and gotten the foreclosure case dismissed. This is usually done by showing that the note was not endorsed (stamp showing transfer to a new lender) before the lawsuit was filed. The Court in McLean v. J.P. Morgan Chase Bank, N.A., 79 So. 3d 170 (Fla. 4th DCA 2012) found that when a lender cannot prove standing at the inception of its lawsuit, the remedy is the outright dismissal of the case without prejudice and without leave to amend. This will force the lender to file a whole new lawsuit from the beginning, re-serve all parties, pay a new filing fee, etc.

Once a motion to dismiss is filed, a hearing will be set and both sides will appear to argue the issues. If the judge grants the motion to dismiss, it will typically be with leave, or permission, for the lender to file an amended complaint fixing the procedural error. If there is a more serious issue, such that the court does not have jurisdiction over the matter, then the court can dismiss the case completely. This will typically be “without prejudice,” meaning that the lender would be able to re-file the lawsuit against you in the appropriate court or otherwise remedying the issue.

The other option is to file an answer to the complaint. In the answer you will admit or deny the allegations of each of the lines of the complaint. These allegations must be carefully answered as you do not want to admit something that will give the lender the right to quickly obtain judgment against you. With the answer you may also list any affirmative defenses you may have. An affirmative defense affirms part of the plaintiff’s claim, and offers additional information that mitigates or justifies the defendant’s conduct. In Florida, the affirmative defenses available, pursuant to Florida Rules of Civil Procedure Rule 1.110, are: ” accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense”

At the same time as the answer, or shortly after, you will file discovery on the lender. These filings are “Requests for Production,” “Requests for Interrogatories,” and “Requests for Admission.” Requests for Production is where you will ask the lender to produce certain documents from the loan file, the note, the mortgage, servicing agreements, pooling agreements, etc. Requests for Interrogatories will require an officer from the bank or servicer to answer questions under penalty of perjury. Requests for Admissions are similar to interrogatories, but will require the lender to admit or deny certain allegations or questions.

Requests for Admission are limited to 30 requests by Rule 1.370, Florida Rules of Civil Procedure, and must be answered within 30 days. Requests for Interrogatories are similarly limited to 30 days and must be responded to within 30 days. Requests for production similarly must be responded to within 30 days.

Once discovery is complete, the case can go one of two ways. Typically, the lender will file a motion for summary judgment. Here, the lender is stating that there is no issue left of material fact and that it is entitled to judgment as a matter of law. The lender will file this motion along with affidavits of amounts owed to the lender (including unpaid taxes and insurance, as well as interest), and the lender law firm will file an affidavit as to its attorney’s fees owed. Florida courts have further held that the lender must have refuted, or successfully stricken, your affirmative defenses in order to obtain summary judgment. Lazuran v. Citimortgage, Inc., 35 So. 3d 189, 189-90 (Fla. 4th DCA 2010) (reversing summary judgment where the plaintiff failed to refute the affirmative defense of lack of notice). If not, then this would be a good defense to the lender obtaining summary judgment against you at the summary judgment hearing.

The lender, or the court sua sponte (“on its own”), can set the case for trial. The lender will file a list of its witnesses and exhibits for trial. Typically, the witnesses will be a representative from the bank who is familiar with your loan file and the documents within. Its exhibits will typically be the note, mortgage, default letter and payment history.