Okay, so you get served with mortgage foreclosure papers. I have several bits of advice that I want to give at this point, suggestions number 1, 2, and 3 are the same, hire a lawyer, preferably an experienced lawyer.
When we are hired, we almost always have two separate processes we go through that are somewhat independent of each other. One: we work on a loan modification and two: we litigate the foreclosure lawsuit. It is our position that they go hand in hand because, contrary to what has become an “urban legend,” in my over 35 years of experience, I have never witnessed someone getting a “free house.” Ultimately, unless the loan was never funded, the mortgage is going to be enforced at some point. Therefore, it is important, if you want to keep the house, that you try to modify the loan to the point where you can afford to keep the house. And although the loan modification process is normally conducted independently of what you are doing to defend the foreclosure, the ferocity of the defense that is mounted often favorably affects the terms of the modification you ultimately receive.
There are two types of defenses in a foreclosure or, for that matter, any civil litigation. There is what I call procedural or what non-lawyers refer to as “legal loopholes” and then there are actual factual defenses, which are dependent on the particular circumstances of the case.
Regarding the first type of defense, the “loopholes,” (this is really a poor description of what is actually involved) in fact, these so-called “loopholes” are probably one of the most important reasons why our system has consistently resulted in a society which provides both freedom and prosperity to its members. Lawyers and other enlightened groups refer to this as “due process of law.” What it means is that there are rules, procedures that must be followed within the judicial system so that a decision which is proper, correct, and fair is achieved. These “loopholes” include the fundamental concept that all parties to a dispute are entitled to present their side of the story, that facts can only be presented when they are reliable, and that there should be an orderly process which ensures that everyone knows the procedure and has an opportunity to be heard; that the decisions that are rendered are based upon an unbiased interpretation of what the facts are, which are then applied to the established rules governing agreements, or in the area of tort law, the party wronged receives compensation from the wrongdoer. (You may have guessed by the last sentence that I am in fact a lawyer, but I assure you that as run-on sentences go, for lawyers, this one is a baby).
The first thing that happens in any lawsuit is for the Court to acquire jurisdiction over the parties. All this means is that the Court acquires the authority over the parties to make a decision. When you file a lawsuit as a Plaintiff, you submit yourself to the jurisdiction of the Court. The service by the process server is how, normally, jurisdiction or authority is established over the Defendants. There are a lot of myths about what is good service, and like everything else dealing with the law, volumes have been written. All I can say about service here is that 99 times out of 100, if the Complaint and Summons was left with a member of the human species at the house, this is usually good service. (Actually, in Florida, there is a type of service that can be obtained through publication, which has certain implications. A notice published in a small local newspaper that no one reads, avoiding the need of a process server to actually find a human being, if the Court can be satisfied that the Defendants are avoiding the process server). When you get served, you should get two pieces of paper, the Complaint, which is very thick and has lots of papers attached to it, and the document, usually two pages long sometimes three in South Florida because it is translated into various languages, called a Summons. READ THE SUMMONS. It tells you that you have 20 days to file a written response to the Complaint with the Clerk of the Court and to serve a copy to the Plaintiff’s attorney. If you don’t, then a default will be entered against you, which means that your procedural rights to contest the foreclosure are over, and it’s only a matter of time before you are apartment hunting.
What to put in the response is the $64.00 question and why my clients pay me the big bucks. The response will raise any procedural issues, but most importantly, will begin to tell your side of the story and set the ground work for making it clear that you will insist that the Bank PROVE everything they have to in order to enforce the Mortgage and Note.
In Florida, all mortgage foreclosures are in equity where a particular set of rules apply. The bad news is that this means that you don’t get to have your case decided by a jury. (Whether you believe it or not, the downtrodden always do better with juries). The good news is that fundamental concepts, such as fairness, justice, reprehensible conduct can and should be considered by a Court of Equity. As a practical matter, this should mean that a Court should take into consideration bad conduct on the part of the Bank, which impacts upon the original terms and conditions of the Mortgage and/or how and when it will be enforced.
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