When served with a foreclosure lawsuit, a defendant has 20 calendar days to file their answer with the court and the bank’s attorney. The 20 day time period starts the day that the defendant is served. Service by a process server, or pseudo-sheriff is required, and the foreclosure can not merely be mailed or left on your door step. The process server is only required to serve anyone over 16 that resides at the household, even if it is not the named defendant. Often, family members of children accept service on the borrowers behalf and leave the papers lying around, which often leads to defendants being defaulted for not timely filing their answer.
Once served, the best thing to do is hire an attorney. Only by having an experienced and knowledgeable ally on your side, that can review the foreclosure and make sure that the bank through their attorney, has followed all of the rules of procedure in serving you and attaching all required documents to the complaint, can you be sure that your rights are 100 percent protected.
The first document filed with the court should be a motion to dismiss, assuming there are grounds for dismissal of the suit. Often, defendants that appear pro se, file an “Answer” and tell the court that they are attempting to modify the loan or that they have no ability to pay it. This tactic while great in serving to stop the 20 days and avoid a default, actually is not a great move on the part of the Defendant. Certain defenses and procedural inaccuracies, such as jurisdiction and service, if not claimed on the first document filed with the court, are considered waived and can not be later brought up before the Judge.
What can be raised on a motion to dismiss:
- Jurisdiction of the court – is the lawsuit filed in the proper courthouse, in the proper venue where the property is located?
- Was the defendant properly served with a process server? Was the recipient over 16 years of age?
- Was the spouse served if married?
- Bond – is the Plaintiff a Florida based corporation or authorized to do business in Florida? If no, then they can not file a lawsuit without posting a bond.
- Acceleration Notice – did the lender send the correct acceleration notice to the borrower and attach it to the complaint?
- Notice of Default – was the borrower sent the correct notice of default in written correspondence?
- RESPA – were RESPA rules violated?
- Is the Plaintiff the proper party to bring the lawsuit? Is it the named lender in the mortgage documents? If not, are the proper assignments attached?
- Are the assignments recorded? Was the borrower placed on notice?
- Did the lender attach the correct certifications as to the location and holder of the original note?
- Did the banks attorney attach the note to the complaint?
This is only a sample of the many different issues that an attorney looks for when combing over a complaint in order to draft a proper motion.
Foreclosure defense by an attorney does not have to be expensive and is your best line of defense to protect yourself in order to save your home or short sale it in order to walk away from the balance.
The first consultation with me is free and can provide the much needed guidance in order to protect your rights and provide you the time you need to save your home and obtain the loss mitigation option that is right for you.
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