What do I do if I am sued for foreclosure in Florida?

For info. only

1. Respond to the Complaint
You have twenty days after service to respond to the Complaint. You can file a Motion for Time
Extension to ask for another 20 days to file a response The response can be an Answer or a
Motion to Dismiss. If justified, the initial response should be a motion to dismiss. The Motion to
Dismiss delays the time for an Answer until the motion is denied. You will waive many issues if
you omit them from the motion, so you should hire a lawyer to represent you if at all possible.
2.Draft the Motion to Dismiss
Consider: 1. Was service on you proper? (In your hand, or if at home in the hand of you or
another adult resident) 2. Is a copy of the promissory note attached to the Complaint? 3. Does the
plaintiff adequately show the plaintiff owns and holds the note? 4. If there is a count to re-
establish a lost note, does the count say it was lost while in the possession of the plaintiff? Are
the allegations generic or specific? 5. Does the Complaint show that the taxes on the note were
paid? 6. Does the Complaint show that you signed the note or have an interest in the property (2d
mortgage holder, tenant, etc) -- being a spouse of the debtor is no reason to sue you. Serve the
motion to dismiss. Send the original to the clerk of the court. (If possible, bring a copy of the
original to the clerk of the court with the original motion and have the clerk time-stamp your copy
to show it was on time).
3. Wait until the judge rules on the motion
Some circuits require that you send a copy of the motion to the judge with a blank order and
envelopes. If there is such a requirement, do it. You do not have to do anything else until the
motion is denied. Under the above procedure, this might happen without a hearing, or the judge
might request a hearing. In the circuits that do not require notifying the judge about a motion to
dismiss, the plaintiff will have to contact you, discuss the merits of the motion, and if you do not
agree, either set it for hearing or Amend the Complaint. (If the Complaint is amended, go back to
step 1, above). If the matter is set for hearing, attend the hearing and tell the judge why the
Complaint is defective (not why you do or do not owe the money). If the Plaintiff has no Standing
to foreclose(i.e does not own the notes or Plaintiff is not a Party of Interest etc ), the Judge still
denies your Motion to Dismiss, you can consider go to Appeal. Remember to go to the hearing
with a Court Reporter as you need certified transcript to go to Appeal Court.
4. Answer the Complaint
You should have a lawyer do this in order not to miss important issues. But consider: 1. Denying
all the material facts alleged. 2. Adding Affirmative Defenses; consider these: A. The same issues
detailed in the Motion to Dismiss considerations B. Predatory lending C. Illegal interest rates D.
Waiver E. Violation of the Truth in Lending Act F. The Complaint fails to state a cause of action. G.
The Complaint fails to state a cause of action because it does not show endorsement of the
promissory note to the plaintiff. H. Plaintiff has failed to present the promissory note for payment
as required by Fla. Stat. §§673.011, et. seq. I. Plaintiff is in violation of Florida Statute §57.011
because it is a non-resident of the State of Florida that has not posted a non-resident cost bond
after a demand that it do so. J. Plaintiff is not the real party in interest
5. The matter will be set for mandatory mediation
The Florida Supreme Court has recently adopted rules requiring mandatory managed mediation
in all residential foreclosure cases. You will be contacted by the organization responsible for the
mediation. TAKE THE CALL. COMPLY WITH THE REQUEST TO CONTACT THE CREDIT
COUNSELOR. PROVIDE THE REQUESTED INFORMATION. Attend the mediation when it is
set.
6. Attend mediation
Consider these possibilities: If you want to leave the home, consider: 1. Giving a deed in lieu of
foreclosure (be sure you get a guarantee of debt forgiveness) 2. Asking for move-out money
("Cash for Keys") 3. A short sale (be sure you get a guarantee of debt forgiveness) 4. Setting a
move-out date long into the future. If you want to stay in the home, consider: 1. Ask for a
reduction in principal to the value of the home (A recent federal program may help facilitate this in
part) 2. Asking about the HAMP program (if you qualify, the interest rate is reduced and the term
extended so that the payments are reduced) 3. Asking about conventional refinancing to current
rates Remember, you do not have to agree on anything. You can let the foreclosure take its
course. Remember, the promissory note is negotiable paper, it may be able to be sold and then
enforced against you if you do not get the original note back.
7. If mediation is unsuccesful, send discovery to
the plaintiff
You need a lawyer to do this well. The discovery should be aimed at showing that you do not owe
this plaintiff anything. Consider: 1. Interrogatories 2. Request to Produce 3. Request to Admit Be
aggressive if you do not timely receive responses. File motions to compel and set them for
hearing. The plaintiff's lawyers are probably working on a flat fee and may leave you alone if you
are difficult to deal with. Be sure to properly respond to the plaintiff's discovery. (Request to Admit
are deemed admitted if you do not timely respond).
8. When the Motion for Summary Judgment is
filed; Respond with an Affidavit
A trial will be needed if any material allegations are at issue. These might include who owns the
note, are you in default, as well as the legal defenses set forth above. But, the judge will only
defenses presented in a timely, properly drafted and filed affidavit, Get a lawyer to help you do
this. Avoid a Summary Judgment.
8.If there is a trial, defend aggressively. Make sure
you hire a court reporter for trial
Raise all the issues stated above. Bring witnesses and documentary evidence. Concede nothing.
10. If you lose
Consider an appeal, but this is costly and does not delay the foreclosure without posting a bond.
You can still redeem the property by paying the judgment until the clerk of the court issues the
certificate of title. Consider refinancing. You can also file Bankruptcy to delay the sale and have
your debts including the mortgage wipe out.
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