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When your case is not "at issue"

We all know that the banks and the Courts are eager to move foreclosure cases along. A fast resolution to these cases obviously helps the bank, but it also cleans up the Court’s docket with cases they don’t necessarily want to deal with. You have maybe even heard of the term “rocket docket” – a sort of expedited resolution for foreclosure cases. Often, rushing through a foreclosure case means the borrower is out of their home sooner than later. It can also mean sloppy legal work, usually to the borrowers’ disadvantage.

A civil case should not proceed to trial until it is “at issue’. “At issue” is a legal term, meaning the time at which all the pleadings, by all parties, are closed. The Florida Rules of Civil Procedure 1.440(a) state

“When at Issue. An action is at issue after any motions directed to the last pleading served have been disposed of or, if no such motions are served, 20 days after service of the last pleading. The party entitled to serve motions directed to the last pleading may waive the right to do so by filing a notice for trial at any time after the last pleading is served. The existence of crossclaims among the parties shall not prevent the court from setting the action for trial on the issues raised by the complaint, answer, and any answer to a counterclaim”

The watered down version is that the allegations and responses to the allegations, by all the parties, need to be filed with the Court. 20 days after the last pleading is filed, the case is “at issue” and ready to be set for a trial date. Courts and banks sometimes ignore this rule and are eager to set a case for trial prematurely.

I recently had a case where trial was set, but sure enough, it wasn’t “at issue”. The Court previously permitted our client to amend his answer (his response to the Plaintiff’s allegations). 20 days passed and the case was ready for trial. The bank’s attorney chose to respond to my client’s amended answer, which he is perfectly permitted to do. However, by responding to my client’s amended answer, the bank made the case not at issue again. Essentially, the bank must wait another 20 days after their pleading (their response to my client’s response), before the trial could be heard. Despite the bank shooting themselves in the foot about the trial date, they insisted on having a trial go forward within the 20 day waiting period they themselves created.

At court, right before the start of the trial, I reminded the Court that the case was not “at issue” because the Bank filed a response within 20 days of the trial date. Although the bank’s attorney tried to argue around it, the Court rightfully ruled that the case was not at issue, and the trial had to be continued. Needless to say, my client was happy for the extra time, and the bank’s attorney was frustrated since the trial was continued.

The banks and the Courts are often eager to move cases along, but the rules of civil procedure are there for a reason – to make sure all parties play fair. Make an appointment with Loan Lawyers today to discuss possible defenses in your foreclosure and let us help keep you in your home.

Categories: Foreclosure Defense
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