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GOING ON THE OFFENSIVE IN A FORECLOSURE CASE

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 Unfortunately, we see a lot of pleadings that are not aggressive and do not cite the proper authority.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 here.

Categories: Foreclosure Defense
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