Facing a foreclosure in Florida can be very difficult challenge to someone
that does not know the process and the law. The Bank will have to serve
you a copy of the Complaint and Summons. Once served, you have 20 days
to “respond” to the complaint. What can you file in “response”
to the complaint? Unfortunately, we see a lot of pleadings that are not
aggressive and do not cite the proper authority. In addition, there are
other motions that can be filed before you file a pleading. Now once a
responsive pleading has been filed, the pleadings are considered “closed”
for purposes of the litigation and the case is at issue. What the Banks
are often hoping for, is a non-aggressive approach to the litigation.
In other words, they want to see a bare bones Answer without any Affirmative
Defenses (defenses that one can raise to avoid the central cause of action).
At our firm, we file very aggressive Answers with multiple Affirmative
Defenses upon an in-depth review of the file. We also look out for any
motions that can be filed, including a Defendants Motion for Summary Judgment.
A Defendant’s Motion for Summary Judgment is a very useful tool
to take the offensive and to convince the Court that Judgment should actually
be entered for the Defendant(s), not the Bank. So what is the standard
to file these kind of motions?
Summary judgment is proper when there are no genuine issues of material
fact and when the moving party is entitled to judgment as a matter of
law. Fla. R. Civ. P. 1.510(c);
Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000). The Court should grant summary judgment
in favor of the moving party “if the pleadings, depositions, answers
to interrogatories, admissions, affidavits, and other materials as would
be admissible in evidence on file show that there is no genuine issue
as to any material fact that the moving party is entitled to judgment
as a matter of law.” Rule 1.510(c), Fla.R.Civ.P. Once the moving
party has met its burden, the non-moving party then has the burden to
show, through affidavits or other admissible evidence, the existence of
any dispute of material fact.
Holl v. Talcott, 191 So.2d 40, 44 (Fla. 1966) (Once the moving party meets its burden,
“the burden shifts to the opposing party to show by appropriate
means that genuine and material issues do remain to be tried”).
If you or anyone you know is facing a foreclosure, contact a firm that
actually fights and litigates these cases. You want to hire a firm that
knows the law, that fights hard for their clients, and lawyers that look
for ways to get the cases dismissed. Loan Lawyers has helped over 5,000
South Florida homeowners and consumers with their debt problems. Please
contact us to see how we may be able to help you. In addition, for more information
on foreclosure defense, please visit us