Common Mistakes Made With Summary Judgments in Foreclosure Cases
A summary judgement is a motion to make a judgment on a case without going to full trial. The summary judgment can be motioned when the plaintiff believes that the defendant has no argument against their claim. In the case of foreclosure you would need to provide evidence against the bank that could oppose the summary judgment. It will be the judge who decides whether you have an appropriate defense and whether you can forego a summary judgment and proceed to a full trial.
Florida is a judicial foreclosure state, which means that when a bank wants to foreclose on a home they must file a lawsuit. This may sound like a negative, but it’s generally a positive for homeowners because they will get more of a chance to defend themselves.
In a previous blog we took a look at the common mistakes lenders make in a summary judgment case. Banks will make many of the same mistakes in a foreclosure, though the circumstances are different. Watch out for these mistakes and you may just win your case, as some of these mistakes can cost banks the entire judgment.
Missing Promissory Note
The promissory note is basically a legal IOU. By signing it, you demonstrate that you agree to pay your mortgage. It details the amount you owe, interest rate, dates of payments and so on.
The promissory note must be presented as evidence to establish liability at least 20 days before the hearing. In addition, it must be presented as authenticated evidence, meaning that there is evidence the borrower actually signed the note. If the plaintiff fails to provide the promissory note or evidence of the authenticity of the note, the motion is dead on arrival.
Lost Notes
If original notes are lost, there is sometimes ground to fight a foreclosure. All original notes must be presented in the foreclosure lawsuit. If a note is missing or appears later as an endorsed original the appeals court may find that there is no standing to sue the borrower.
Failure to Provide Correct Amount of Damages
In a foreclosure lawsuit the lender must file affidavits of the damages owed. This is the basis of the entire lawsuit, but if the lender does not provide documentation that supports the claims on damages, the evidence is inadmissible as hearsay.
Cannot Disprove Affirmative Defenses
In a judicial foreclosure it is up to the plaintiff to disprove all of the defendant’s affirmative defenses. This means the burden of proof is on the plaintiff to either disprove defenses or show legal insufficiency in the defenses. Either way, if you feel that you have strong affirmative defenses, it is worth arguing your case. Lender’s often ignore the defendant’s defenses, which ends their ability to obtain summary judgment. Additionally, the defendant must disprove all affirmative defenses. If even one defense is left unaddressed and not disproven, no motion for summary judgment may be made.
Mistakes can be made by lenders and their lawyers all throughout the foreclosure process. With the help of an expert attorney, these mistakes can lead to motions stopped, summary judgment suspended and even your case thrown out. Don’t just lay down and let a foreclosure happen. Let us help you fight for your rights and your home.
