"I was served foreclosure summons and I phoned the Bank." NOT ENOUGH!!
I hear this frequently. Homeowners call distraught because they have received notice of a final hearing or even of a foreclosure sale.
“I don’t understand why this is scheduled. I’ve been talking to the bank every week. I’m in a trial modification (or I have a short sale scheduled, or I was promised the foreclosure was on hold or they are sending me Deed In Lieu papers or or or or or).” Or I hear, “The bank’s mitigation department assured me that foreclosure hearing was cancelled!”
I ask: “Did you respond to the Summons?” Often, the answer is: “Oh yes, I called the bank right away.” The problem with this is that the court papers and summons didn’t say: ‘Call the Bank.’ It didn’t say contact the bank at all. It said something like:
“A Lawsuit has been filed against you. You have 20 calendar days after this summons is served on you to file a written response to the attached complaint with the Clerk of Court. A phone call will not protect you….”
and:
…”at the same time you file your written response you must mail a copy to the Plaintiff’s attorney named below…” and it shows their address
THE LANGUAGE ON THE SUMMONS MEANS WHAT IT SAYS AND SAYS WHAT IT MEANS.
What I explain to homeowners is that THE BANK EMPLOYEES, whether in the mitigation department or otherwise, DON’T TALK TO THE FORECLOSURE ATTORNEYS and VICE VERSA. If the foreclosure law firm handling the case for the lender doesn’t receive a WRITTEN response within the stated period, they will ask the clerk of court to enter a Default, and the Clerk has no choice but to do so. A Clerk’s Default in Florida is a fancy way of saying to the Judge, these people do not intend to defend, proceed without them.. After that, if you show up in court the Judge is technically not allowed to listen to your side…there are some exceptions.
So what can you do?
You can do a lot, but don’t wait until the last minute. While we can sometimes get a foreclosure judgemnt set aside or a foreclosure sale cancelled, it’s hard work. It’s sooo much easier, cheaper and calmer on your nerves if you get counsel involved sooner rather than later, certainly BEFORE any Summary Judgment hearing would be ideal.
Defaults entered by the Clerk can sometimes be set aside by the Judge. You have to do some serious explaining, your lawyer will know what is needed, but Florida courts generally prefer cases to be decided on the merits rather than on a technical “Gotcha.”
If you are or have been on military service, the SCRA [SERVICEMEMBERS CIVIL RELIEF ACT] provides various relief, from staying the effect of, or even vacating, judgments already entered under certain circumstances.
If you are an ordinary civilian, a good attorney can scrutinize the court record for errors and oversights. These are more frequent than you would think. www.celiadeifik.com/im-facing-foreclosure-what-do-i-do-myths-and-misconceptions-about-foreclosure-and-mortgage-distress
This may enable you to set aside a default or, if not, to still challenge at least parts of the bank’s case. A Clerk’s Default only admits the allegations of a WELL-PLED complaint. Those are rare as hens teeth in the foreclosure arena. Whether your goal is to fight on or to negotiate a work out with a dignified exit, the sooner you get assistance of knowledgeable counsel, the better.
Best is to get advice of counsel as soon as you get served and KEEP THE SUMMONS. There’s important, often handwritten, information on the face of YOUR summons that will not be in the court file.
So remember, “BUT I CALLED THE BANK….” is NOT a legal defense when you are standing in court.
I hope this is helpful to home and businessowners out there…procrastination is dangerous…educate yourselves and ACT.
