After being served with a foreclosure notice I filed a timely response stating that I was attempting a short sale. I further advised the court that I could not read the complete foreclosure notice since many paragraphs were blank where it seemed the court's printer had run out of ink. I said I did not feel action could go forward against me until I had a chance to fully read the documents.
I was able to read on the notice that the present lender does not seem to have the original mortgage document.
How do I get a court date for a hearing, or what should my next step be? I was served with the notice of foreclosure on August 21st. Sara Murphy
Your next step depends on what stage of foreclosure you are in. If the foreclosure notice you received is the Summons and Foreclosure complaint, then you need to file a response listing your defenses as you stated above. You could make a copy of what you received and send to the court showing that you have not received a complete copy of the documents. Ideally you should have an attorney handle this matter. I understand that many people in foreclosure don't think they can afford an attorney but the attorney can probably buy you a lot more time to get the house sold. If the notice you received listed the sale date, then you are probably at the point where you may not be able to get anything done.
I agree that your best course of action is to hire a real estate attorney with foreclosure experience. If you were just served with the Complaint and the Summons, then you typically have 20 days within which to file a response to the Complaint with the Court. It is important in communicating with the Court that ALL communications be in writing. You should keep copies of all of your correspondence and documents filed with the Court.
If your advising the Court that you did not receive legible documents was in writing, then this may prevent the Plaintiff from obtaining a default. The Court may consider what you filed as a Motion to Dismiss for Failure to State a Cause of Action. If granted, typically the Court does so without prejudice, allowing the Plaintiff to file an Amended Complaint. Depending on the Judge, he/she may simply order the Plaintiff to send you legible copies and give you XX number of days to respond.
If you want to obtain legible copies of the documents in question before this happens, most likely, the Plaintiff's counsel can provide them to you or you can get copies from the Clerk of the Court. You may want to obtain them from the Clerk of Court, simply to keep Plaintiff’s counsel from knowing you have obtained them. On the other hand, if an experienced attorney finds out that a Defendant did not receive legible copies, he/she would immediately make or obtain new copies and send them out as soon as he/she could.
If the Complaint has a Count in it for re-establishment of a lost instrument or lost promissory note, then there may be a number of bona fide defenses which could be raised and which would materially slow down the process. As Florida Law punishes parties to a law suit and their attorneys for presenting baseless defenses and motions, it is once again important that you seek competent counsel (i.e., a Real Estate Attorney with foreclosure experience). You can obtain names of licensed Florida real estate attorneys who have volunteered to provide inexpensive first conferences ($25 for first ½ hour, I believe) by calling The Florida Bar’s Lawyer Referral at 1-800-342-8011. Good Luck!
Without a doubt, your best bet is to hire an experience foreclosure attorney. My guess is that if you were able to spot defects as a lay person, then there are probably others that would be found if examined. If you were to go to an experienced foreclosure lawyer, you would still be able to be able to file an amended answer and affirmative defenses.
If they do not have the oriignal note and mortgage, there may be a defense present, especially if the debt was allegedly transferred to a securitzed trust. Rare is the occasion that the pooling agreement terms are followed that properly giveing the trustee the right to sue.
If the loan was a refinance, there are many other issues to be considered, and even more concerning that they do not have the note and mortgage because it means they both originated and lost the loan in a very short period of time. Recent refinances often have loan origination issues.
Regardless of all this, we always put as many oars in the water as possible. Make sure to communicate and submit a loss mitigation package. Get a $1.99 notebook from Walgreens and log all your actions in it. This is especially important for recording names, dates, times when you speak with the lender's agents.
In addition to attempting a short sale, certainly inquire about a short loan modification. We have negotiated reduced principle debt and interest rates for our clients. These are desperate times for lenders. Don't rely on them to produce ideas on how to save your home, but don't be afraid to make DETAILED WRITTEN PROPOSAL that allows both you and the lender to mitigate your repsective losses.
As far as trying to get a hearing, don't push the issue. Do however check the docket and make sure that there are no hearings scheduled. It definately happens where notice somehow doesn't reach you despite being on the service list. Eventually, they will schedule it for summary judgment. However, they can not prevail at summary judgment without standing discovery requests. Some simple interrogatories regarding the whereabout of the notes will cause them to have to respond before proceeding. Same goes for requests for some simple request for production, such as for the any assignments of the note and mortage that are either not recorded or were not attached, or the pooling agreement if it was allegedly assigned to a securitized trust.
Meanwhile, I highly recommned to save as much money as you can. Even short sales are more like to get approved when the borrower contributes some cash. Loan modifications and forebearances are definately more likely too.
Good luck. I hope this was helpful. I will be watching to see if you post additional questions.
I agree with Kenneth Walton - odds are very good that there are many more defects than you spotted. The foreclosure law firms churn out hundreds of these a week, and are not very careful to check the facts and details. If they don't have their ducks in a row, there can be defenses to foreclosure in there for you.
No need to rush to have a hearing - time is on your side. Odds are good that the foreclsoure firm will set the hearing and do the work for you. Keep an eye on the online case docket, so that if they do and fail to send you notice, you'll see that a hearing has been set.
Your best bet is to get an attorney before anything else happens, so that if there are more issues that can be raised on your behalf, that can be done now, before it is too late.
Good luck !
