If you have, your rights may be materially affected if you do not enter a timely and appropriate written response to the lawsuit within twenty (20) days of the date in which you were served. The Response must be timely filed with the Clerk of Court in the appropriate jurisdiction before the 20 days from the date of service has lapsed, or the Lender may apply to the Court for what is commonly known as a Default. The significance of a Default is that you will be prevented from asserting any defenses you may have to the lawsuit, and a Judgment can be entered against you very quickly after that has occurred, severely prejudicing your legal rights.
The Response to the lawsuit may take various forms, including a Motion for Enlargement of Time, a Motion to Dismiss, or an Answer and Affirmative Defenses. A Motion for Enlargement of Time merely asks the Court to grant you additional time to formulate an appropriate written response within a specified number of days. A Motion to Dismiss takes the legal position that the lawsuit should be dismissed in its current form because the Complaint contains certain defects in pleading or otherwise fails to state a claim upon which relief may be granted. Finally, an Answer and Affirmative Defenses is deemed to be an appropriate written response to the lawsuit, and the Affirmative Defenses set forth various applicable legal basis to potentially prevent a judgment from being entered against you should you be able to prove the applicability of those defenses.
At Law Offices of Douglas J. Jeffrey, P.A., we will work with you to formulate a timely and appropriate written response which attempts to protect your legal rights in the best manner available to you under the current existing state of the law and facts.
In the event that you are no longer able to own the property, or continue making the regular payments, there are several potential alternative avenues which you may pursue in an attempt to protect your legal rights, including your homestead or investment property. A Short Sale is an attempt to sell your property for an amount which is lower than the amount currently owed to the Lender(s) who have valid mortgage(s) on the property. Many times, a Lender will agree to a Short Sale and approve it, and further, may agree to allow you to walk away from any deficiency amount free and clear once the sale has been consummated at a closing. A Loan Modification is another possibility if you are able to retain your home, and this would provide for potentially lesser payments to be made to the Lender(s) over an extended period of time, as well as the potential for some debt forgiveness, an abatement on paying any arrearage, and/or the lowering of the interest rate which
you will be charged during the life of the modified loan. Finally, certain property owners may qualify for a Deed in Lieu, subject to meeting applicable eligibility requirements.
At the Law Offices of Douglas J. Jeffrey, P.A., we realize that bankruptcy is not always an option for the property owner, and we determine whether a Short Sale, Deed in Lieu, or Loan Modification may be appropriate for you, in addition to evaluating whether Bankruptcy is a viable or more appropriate option. In the event you have been served with a lawsuit, it will be necessary to timely and appropriately defend that lawsuit while you attempt to pursue a Short Sale or Modification, and we are available to handle all legal aspects of the process for you. In the event that you decide to pursue a Short Sale, we will work with your licensed realtor, or we may introduce you to a licensed realtor who will be able to assist you in connection with the Short Sale process. Our law firm will also provide assistance in any Short Sale negotiations.
Depending on your circumstances, it may be necessary for you and/or your spouse or co-signer to seek the protections which may be available under federal Bankruptcy laws. In making this determination, we will discuss your objectives and determine the appropriate vehicle for you to attempt to achieve your goals, including the possibility of a Bankruptcy.
However, the Law Offices of Douglas J. Jeffrey, P.A. is not in the business of merely “selling” bankruptcies to its clients, so you may be presented with various other options in lieu of Bankruptcy that may be more appropriate for you. In making such a determination, we will also need to discuss your current financial situation in detail, including all assets and liabilities, and any other considerations which could affect your decision as to whether a Bankruptcy is appropriate or advisable under your present predicament.
In the event a lawsuit is filed against you, you may soon learn that a Motion for Summary Judgment is pending against you. The significance of the filing of this Motion cannot be understated to you, as this is an attempt by the Lender to obtain a Final Judgment against you, and to proceed forward with Foreclosure and seek any deficiency against you. It is irrelevant that you may be in the process of attempting to perform a Short Sale, Deed in Lieu, or Loan Modification, because the Lender may be entitled to pursue the lawsuit irrespective of any ongoing negotiations it may be having with you in an attempt to work out some other alternative arrangement.
In the event a Motion for Summary Judgment has already been filed against you, the Law Offices of Douglas J. Jeffrey, P.A. will take all precautions that are reasonably necessary and appropriate in an attempt to prevent the entry of Final Judgment, including seeking Leave to Amend any prior Answer with applicable Affirmative Defenses, propounding appropriate written discovery including Request for Admissions, Interrogatories, and Request for Production, taking depositions, or acquiring the necessary Affidavits in a good faith attempt to defeat the Lender’s efforts.
In the event we are handling your case and a Motion for Summary Judgment is filed by the Lender, we will keep you fully informed so that you may determine whether your options have changed or whether you should also consider pursuing a different avenue in an attempt to protect your legal interests. We will additionally take all steps reasonably necessary and appropriate to make the Lender prove its case and provide to us the necessary supporting documentation and information which reveals that it may pursue a lawsuit against you. We will propound discovery in an attempt to make the Lender prove its case, with an eye toward disproving any entitlement to Summary Judgment or to maintain its lawsuit against you.
It may be the current situation that you already have a pending Mortgage Foreclosure lawsuit which was not appropriately defended, resulting in a Default against you. Even if you have been Defaulted, under certain circumstances, Florida law provides for an opportunity to attempt to set aside the Default against you, assuming that you move very quickly to set it aside under a legitimate basis provided for by law and setting forth meritorious defenses, all of which must be done under oath. If you find yourself in this situation, it is necessary that you seek out immediate legal help, as your legal rights are being adversely affected and failure to properly address the situation may significantly affect your legal rights, including the ability to properly defend against any alleged damages.
It may be that you find yourself in a situation where there is currently a Sale Date, which means that a Final Judgment was already entered against you and the property is scheduled to be sold at a Foreclosure Auction. Under these circumstances, there may still be viable options available to you if you attempt to move quickly. Again, you should seek legal advice right away to see if the Sale Date can be cancelled and to determine whether other options may be available to you, including an attempt to set aside the Final Judgment, to have a Short Sale performed prior to any such Sale Date, or whether the Sale Date may be otherwise postponed or cancelled.
It may be that you currently wish to delay the legal proceedings to continue living at the Property for as long as you can, or to continue accepting the rental income from that Property. To be clear, there is nothing improper with forcing the Lender to prove its case, as this is a fundamental right that is provided for all individuals. We will not improperly delay any legal proceedings. The Lender, however, always carries the burden of proof in proving its case against you. In many instances, you will find that your Property has been bundled and sold off time-and-time again, and it will be unclear as to whether the true owner of the Mortgage and Note is in effect attempting to take possession of the Property, or whether it is merely someone else who claims ownership and does not have a right to do so. Additionally, there may be other valid legal defenses which have not been raised, properly raised, or otherwise aggressively pursued during the discovery phase of the litigation.
The Law Offices of Douglas J. Jeffrey, P.A., will under all reasonable circumstances attempt to make the other side prove its case to the fullest extent permissible by law, as this is your entitlement pursuant to the law. In some instances, the Plaintiff in the lawsuit will be unable to provide the requisite documentation establishing their entitlement to proceed, and under those circumstances, you will always be within your right to require the Lender to prove its case as a matter of law.
We strongly suggest that you retain a licensed Florida attorney with experience in handling foreclosure lawsuits, as well as creditor/debtor rights, banking law, bankruptcy, real estate, and commercial litigation. The legal team at the Law Offices of Douglas J. Jeffrey, P.A. has the requisite experience to develop and implement an appropriate legal strategy for you, and we will take the time to get to know you and understand your situation to present the pros and cons of any option which may be available to you.
Non-lawyers frequently find it difficult to navigate through the legal system. Understanding the applicable substantive law, the Florida Rules of Civil Procedure, and the Florida Rules of Evidence is essential to developing a proper legal strategy and lodging a timely and appropriate legal defense. Furthermore, strong advocacy skills, both written and oral, can also make a difference in presenting your legal position persuasively and effectively to the Court, and an experienced attorney should have the requisite level of education, training and experience to add value to your case.
Notwithstanding, Florida law allows non-lawyers to represent themselves in any lawsuit, except in the circumstances of a corporate entity. An individual may always represent himself or herself in a lawsuit if he/she is named individually. A corporate entity named as a Defendant, however, must retain counsel who is licensed in the State of Florida, or any filings made by the Corporation are a nullity.
Beware of Charlatans, Non-lawyers are not permitted or qualified to assist you with the defense of your lawsuit. If you are unsure as to whether an individual is a licensed attorney in Florida, you may conduct an attorney search at www.floridabar.org and verify whether he or she is a member of the Florida Bar.
Also, you are entitled to receive written materials setting forth a lawyer’s credentials, including licensure, education, training and experience. Douglas J. Jeffrey will present you with written materials setting forth his credentials upon request.
These are questions we address daily and each problem is strategized individually, to meet the specialized needs of each of our clients. Miami and Broward County property foreclosures are at a historic high, requiring specialization for this diverse cultural environment.
Our Miami foreclosure defense lawyers are negotiators as well as litigators, and we will work with you to formulate a comprehensive strategy to protect your legal rights in the best manner available to you under the foreclosure laws of the State of Florida.
Fortunately, there are various powerful legal strategies that may be available to you. We will develop them with you and help relieve your Florida foreclosure anxiety.