Motion for Summary Judgment in a Florida Foreclosure
In order for a bank to proceed with a foreclosure and obtain a final judgment of foreclosure, the specific bank and or servicer bringing the action, must provide evidence that it owns and holds the note and mortgage. Additionally, the bank must verify that the amounts due and owing are correct, and the amount of the final judgment is an accurate reflection of the debt owed by homeowners.
To obtain a final judgment of foreclosure a bank will typically file a Motion for Summary Judgment and Affidavit of Indebtedness (also referred to as affidavit of amounts due and owing or affidavit in support of motion for summary judgment). This Affidavit of Indebtedness must be executed by a representative of the bank with personal knowledge of the loan in default. The affiant must have reviewed all loan documents and must have personal knowledge of the loan history, including how many months the homeowner is behind, what are the costs of the foreclosure, what is the interest owed and what the principal balance of the loan is. If the individual that executes the Affidavit of Indebtedness does not have personal knowledge of the above described information, the affidavit is fraudulent and the bank should not be allowed to proceed with the foreclosure. Any final judgment of foreclosure obtained with a fraudulent affidavit is voidable and may be set aside under the Florida Rules of Civil Procedure.
As South Florida is at the forefront of the foreclosure epidemic, it is imperative the homeowners know their rights and are aware of the legal standards banks must reach in order to properly foreclose on a residence. Contacting a foreclosure defense attorney is the best way to protect these rights and assure that your bank has not fraudulently proceeded with a foreclosure.