Foreclosure Defense: Foreclosure Litigation

The client may be able to find out that a foreclosure has been filed prior to being served by monitoring the clerk of court’s website online. Basically, every county in the State of Florida, except for Broward County, has a website that allows you to monitor the filing of a foreclosure complaint for free.

The client also has the right to oppose the notice of default, and it is always important that you advise the client to do so in writing to the lender as soon as possible. Keep in mind that if the lender or the party bringing the foreclosure action fails to give the homeowner the proper notice of default and intent to accelerate the loan prior to filing the foreclosure lawsuit against the homeowner, then the homeowner may have a defense to a foreclosure action.

The lender or the party bringing the action files a foreclosure complaint and a lis pendens with the county clerk of court in order to foreclose on the client’s property. Now the lender or party bringing the action becomes the plaintiff. The plaintiff will then serve the homeowner with a copy of the complaint, summons, and lis pendens, usually through a process server who will attempt to personally serve the client. If the plaintiff is unable to serve the client personally with the complaint and summons, the plaintiff may attempt to serve the homeowner by virtue of a “notice of action” to obtain what is referred to as “constructive service.” Once the client receives the complaint, the client, who now becomes the defendant, must file a response within twenty days from the date of service. Fla .R. Civ. P. 1.140(a) (1). If a response is not filed within the twenty days, the plaintiff may obtain a default judgment against the defendant. At that time the defendant will forgo his or her rights to defend the foreclosure lawsuit, and the foreclosure process will move forward to finality very quickly.

Once served with the foreclosure complaint, the defendant must raise his defenses to the foreclosure complaint. However, the defendant does not necessarily need to file an answer and affirmative defense as the initial pleading. If the defendant or his counsel needs additional time to properly respond to the foreclosure complaint, you may file on behalf of the defendant a motion for extension of time. Even after the motion for extension of time has been granted and the defendant has been provided additional time to respond to the foreclosure complaint, the defendant may file a motion to dismiss the foreclosure complaint. The motion to dismiss challenges the foreclosure complaint by stating that even though the allegations made in the complaint by the plaintiff are true, the plaintiff has failed to establish a cause of action. It is a very technical motion that raises procedural defenses and the plaintiff’s failure to allege necessary elements of the foreclosure. The court, when ruling on the motion to dismiss a complaint, should not dismiss the complaint for failure to state a claim unless it appears beyond a doubt that a plaintiff can prove no set of facts that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, (1957). A trial court, in ruling on a motion to dismiss, is required to view the complaint in the light most favorable to the plaintiff. Sofarelli v. Pinellas County, 931 F.2d 718, 721 (11th Cir. 1991). For the defendant, the standard under which a motion to dismiss is reviewed by the court is a difficult standard to meet because the movant must assume that the Plaintiff’s allegations in the complaint are true (why is this so?). However, if a motion to dismiss is appropriate, it should be filed. A motion to dismiss can stop a foreclosure lawsuit altogether, if the plaintiff did in fact fail to meet its lawful responsibilities in bringing the lawsuit.

Generally, the motion to dismiss must be heard by the court at a designated hearing date and time. If you prevail on your motion to dismiss, the court will likely give the plaintiff an opportunity to amend the foreclosure complaint and file what is generally called an “amended complaint.” If your motion to dismiss is denied at the hearing or you feel that a motion to dismiss is not appropriate, then you would file an answer and affirmative defenses on behalf of your client. In the answer and affirmative defenses, you must respond to each and every allegation in the plaintiff’s foreclosure complaint and raise your affirmative defenses to the foreclosure complaint. At this time, you should bring any counterclaims against the plaintiff (can you offer an example of this?). Counterclaims are in essence a counter lawsuit against the lender. For example, if the lender committed fraud or misrepresentation in the origination of the loan a counterclaim may be appropriate. If the lender violated certain consumer statutes in the origination of the loan such as RESPA or TILA a counterclaim may be appropriate. A separate filing fee is generally required to be paid to the clerk of court in order to file a counterclaim.

Key Steps in the Florida Foreclosure Process

Skip to content