Category Archives: Discovery Strategies

How Homeowners Can Greatly Improve their Chances of Winning on Appeal

24 Wednesday Jan 2018

Posted by in Appeal, Case Laws, Case Study, Discovery Strategies, Federal Court, Foreclosure Defense, Judicial States, Litigation Strategies, Non-Judicial States, Note - Deed of Trust - Mortgage, Pleadings, Pro Se Litigation, Scam Artists, Title Companies, Trial Strategies, Your Legal Rights

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A seasoned Attorney will tell you that trying cases is one of the most exciting things a litigator does during his or her career but it is also certainly one of the most stressful. While in the trenches during trial, many litigators understandably focus all of their energies on winning the case at hand. But a good litigator knows that trial is often not the last say in the outcome of a case. The final outcome often rests at the appellate level, where a successful trial outcome can be affirmed, reversed, or something in between. The likelihood of success many times hinges on the substance of the record on appeal. The below discusses a variety of issues that trial litigators should keep in mind as they prepare and present their case so they position themselves in the best possible way for any appeals that follow.

Prepare Your Appellate Record From The Moment Your Case Begins

Perhaps one of the biggest misconceptions regarding preserving an adequate record on appeal is when a lawyer should start considering what should be in the record. In short, the answer is from the moment the complaint is filed. At that time, counsel should begin to think carefully about the elements of each asserted cause of action, potential defenses and their required elements, and the burden of proof for each. Every pleading should be drafted carefully to ensure that no arguments are waived in the event they are needed for an appeal. For instance, a complaint should allege with specificity all the factual and legal elements necessary to sustain a claim, while an answer should include any and all applicable affirmative defenses to avoid waiver. See, e.g., Travellers Int’l, A.G. v. Trans World Airlines, 41 F.3d 1570, 1580 (2d Cir. 1994) (“The general rule in federal courts is that a failure to plead an affirmative defense results in a waiver.”). Likewise, if you file a motion to dismiss, ensure that the motion contains all the necessary evidence that both a trial court and appellate court would need to find in your favor. Of particular importance in federal court practice is the pre-trial order. Under Federal

Rule of Civil Procedure 16, the pre-trial order establishes the boundaries of trial. See Elvis Presley Enterprises, Inc. v. Capece, 141 F.3d 188, 206 (5th Cir.1998) (“It is a well-settled rule that a joint pre-trial order signed by both parties supersedes all pleadings and governs the issues and evidence to be presented at trial.”). If the pre-trial order does not contain the pertinent claims, defenses or arguments that you wish to present at trial, you are likely also going to be out of luck on appeal.

Later on in the case, as the factual record becomes more fully developed, consider whether amending or supplementing the pleadings or other court submissions are necessary to make the record as accurate as possible. Most states follow the federal practice of allowing liberal amendments. However, these can be contested, particularly late in the process, closer to trial. While appellate review is often for abuse of discretion, formulating a strong motion in favor of or in opposition to an amendment can preserve the issue.

What to Keep in Mind as Your Case Proceeds

As the case develops, consider whether the elements you need to prove your case are sufficiently reflected in the information you obtain during discovery. If not, determine whether there are ways to obtain the information you need well before trial starts. By the time trial arrives, it may be too late to supplement the record to get before the trial judge and the appellate court what you need to win your case. In that regard, anything you have in writing that gets submitted to the court may very well end up being part of the record on review, so make sure it is accurate and understandable. Incomprehensible or incomplete submissions can muddy your appellate record and damage a successful appellate proceeding. In the same vein, make sure anything presented to the court prior to trial that you want to be part of the record is transcribed. Otherwise, there will be an insufficient record on appeal. This is particularly so when it comes to discovery disputes. Although they are common in present day litigation, judges hate discovery disputes. To preserve discovery issues for appeal, be sure to get a ruling, and make sure it is reflected in writing. Moreover, carefully review every pre-trial court order or other judicial communication, including court minutes, to ensure accuracy. Attempting to make corrections during the appellate process may not be possible.

Another significant area for appellate issues is the failure to timely identify experts. This is subject to an abuse of discretion standard of review, so it is important that one builds a record on the issue, particularly regarding any prejudice suffered by the untimely disclosure.

After Discovery Closes – The Motion in Limine

Once discovery has closed, consider carefully any motions in limine you may want to make. Although motions in limine are not strictly necessary, they are helpful in identifying evidentiary issues for the judge and counsel and increase the chances of a substantive objection, sidebar, and ruling when the issue arises at trial. One potential pitfall – some jurisdictions require a party to renew an objection at trial after a motion in limine has been denied, so make sure to do so if necessary. See, e.g., State ex. Rel Missouri Highway and Transp. Com’n v. Vitt, 785 S.W.2d 708, 711 (Mo. Ct. App. E.D. 1990) (“A motion in limine preserves nothing for review. Following denial of a motion in limine, a party must object at trial to preserve for appellate review the point at issue.”) (internal citation omitted). Also, if the Court delivers its ruling on a motion in limine orally, make sure it is transcribed properly by the court reporter.

Now the Trial – What to Keep in Mind

Above all else, when in doubt, object. Objections should be immediate and specifically describe the basis for the objection so the record is clear. Make the argument to win – every objection should be more than just reciting labels, and should provide sufficient information for the trial judge to decide the issue. The goal is not to be coy with the trial judge and hope for a lucky break, but to be prepared to make an argument to win the issue at trial or, alternatively, on appeal. In addition, if you are the party proffering the evidence, make sure the proffer is on the record and that you expressly state why the evidence is being offered. This may require pressing on the judge to get the full objection on the record. If you fail to do so, you risk the appellate court not reviewing the claim on appeal. See, e.g., National Bank of Andover v. Kansas Bankers Sur. Co., 290 Kan. 247, 274-75 (2010) (observing “purpose of a proffer is to make an adequate record of the evidence to be introduced … [and] preserves the issue for appeal and provides the appellate court an adequate record to review when determining whether the trial court erred in excluding the evidence.”). Also, always be careful of waiving any issues for appeal by agreeing to a judge’s proposed compromise on evidentiary issues.

An important but often overlooked consideration is the courtroom layout and dynamics. Well-thought and timely objections will be for naught if they are not transcribed. Sometimes the courtroom layout can make record preservation difficult. For example, if objections are made at sidebar conferences where the court reporter is not present, those objections may not make their way into the appellate record or be dependent on the after the fact recollections of others. See, e.g., Ohio App. R. 9(c) (describing procedures for preparing statement of evidence where transcript of proceedings is unavailable and providing trial court with final authority for settlement and approval). This should be avoided whenever possible.

Beyond objections, make sure all the evidence you need for your appeal is properly admitted by the trial court before the close of your case. All exhibits that were used at trial should be formally moved into evidence if there is any doubt as to whether they will be needed on appeal. If you had previously moved for summary judgment and lost, make sure you take the necessary steps at trial to preserve those summary judgment issues, especially in jurisdictions that do not allow interlocutory appeals.

Another important aspect of the trial is the jury instructions. Jury instructions should always be complete. Remember that the instructions you propose can be denied without error if any aspect of them is not accurate, so break them into small bites so that the judge can at least accept some parts. Specifically object to any jury instructions as necessary before the jury begins its deliberations. See, e.g., Fed. R. Civ. P. 51(c). Failure to do so will waive the right to have the instruction considered on appeal. See, e.g., ChooseCo, LLC v. Lean Forward Media, LLC, 364 Fed. Appx. 670, 672 (2d Cir. 2010) (finding that defendant’s objection to jury instructions and verdict form during jury deliberations did not comply with Fed. R. Civ. P. 51(c) and noting that the “[f]ailure to object to a jury instruction or the form of an interrogatory prior to the jury retiring results in a waiver of that objection.”).

Additionally, when you lodge your objections, make sure you explain why the jury charge is in error since general objections are insufficient. See, e.g., Victory Outreach Center v. Meslo, 281 Fed. Appx. 136, 139 (3d Cir. 2008) (holding that general objection to the court’s jury instructions and proposed alternative instructions, “were insufficient to preserve on appeal all potential challenges to the instructions” and were not in compliance with Fed. R. Civ. P. 51(c)(1)). If possible, have a set of written objections to the other side’s jury charges, and get the judge to rule on that, since judges like to hold such conferences off the record. Also, do not overlook the verdict form. Know that when you agree to a particular form (general or special), that will mean that you are probably taking certain risks and waiving certain arguments one way or the other. Give this thought, and make sure that you know the rules of your jurisdiction on verdict forms so you can object if necessary. See, e.g., Palm Bay Intern., Inc. v. Marchesi Di Barolo S.P.A., 796 F.Supp. 2d 396, 409 (E.D.N.Y. 2011) (objection to verdict sheet should be made before jury retires); Saridakis v. South Broward Hosp. Dist., 2010 WL 2274955, at *8 (S.D. Fla. 2010) (noting that Federal Rule of Civil Procedure 51(c)(2)(B) states that an objection is timely if “a party objects promptly after learning that the instruction or request will be … given or refused” and that the Eleventh Circuit “require[s] a party to object to a … jury verdict form prior to jury deliberations” or the party “waives its right to raise the issue on appeal.”). (internal quotations and citation omitted).

Finally, pay careful attention to the closing argument. This can be an area where winning at trial by convincing a jury may be at odds with preserving the issue on appeal. On the flip side, many litigators are loath to interrupt a closing argument to object. If you need to object to preserve an issue, do so.

Post-Judgment – Final Things to Consider

First, determine whether certain arguments must be made post-judgment to preserve those arguments for appeal. Some arguments (such as those attacking the sufficiency of the evidence) must be made at that time or they are waived. See, e.g., Webster v. Bass Enterprises Production Co., 114 Fed.Appx. 604, 605 (5th Cir. 2004) (holding that failure to challenge back pay award in post-judgment motion waived the issue on appeal absent exceptional circumstances that did not exist). Written motions post-judgment should include all relevant references to trial transcripts and evidence to make as complete and clean a factual record as possible

Second, when the appellate record is being compiled, carefully double check the record to ensure its accuracy. Many times the trial court clerk or court reporter accidentally omits portions of the record. If this is not caught and corrected in a timely manner, you may be stuck with a bad record. Most jurisdictions have procedures in place for supplementing and correcting the record but understand them well in advance so there is adequate time to address any discrepancies before the appellate briefing is due.

Conclusion

Too often even seasoned trial lawyers get tripped up on appeal by not having an orderly and complete record. A litigator must never lose sight of the factual and legal issues in a case and what an appellate court will need to consider in making the desired determinations. As demonstrated above, a winning record requires thought at all stages of the litigation, not just when the notice of appeal is filed. With proper preparation, attention to detail, and forethought, one can ensure that the proper record on appeal is never in doubt.

When Homeowner’s good faith attempts to amicably work with the Bank in order to resolve the issue fails;

Home owners should wake up TODAY! before it’s too late by mustering enough courage for “Pro Se” Litigation (Self Representation – Do it Yourself) against the Lender – for Mortgage Fraud and other State and Federal law violations using foreclosure defense package found at https://fightforeclosure.net/foreclosure-defense-package/ “Pro Se” litigation will allow Homeowners to preserved their home equity, saves Attorneys fees by doing it “Pro Se” and pursuing a litigation for Mortgage Fraud, Unjust Enrichment, Quiet Title and Slander of Title; among other causes of action. This option allow the homeowner to stay in their home for 3-5 years for FREE without making a red cent in mortgage payment, until the “Pretender Lender” loses a fortune in litigation costs to high priced Attorneys which will force the “Pretender Lender” to early settlement in order to modify the loan; reducing principal and interest in order to arrive at a decent figure of the monthly amount the struggling homeowner could afford to pay.

If you find yourself in an unfortunate situation of losing or about to lose your home to wrongful fraudulent foreclosure, and need a complete package that will show you step-by-step litigation solutions helping you challenge these fraudsters and ultimately saving your home from foreclosure either through loan modification or “Pro Se” litigation visit: https://fightforeclosure.net/foreclosure-defense-package/

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How Homeowners Can Effectively Handle Subpoenas Duces Tecum

30 Thursday Oct 2014

Posted by in Discovery Strategies, Fed, Federal Court, Foreclosure Defense, Judicial States, Litigation Strategies, Non-Judicial States, Pleadings, Pro Se Litigation, State Court, Trial Strategies, Your Legal Rights

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When homeowners fighting foreclosure are challenged with Foreclosure Mill Attorneys to produce him/herself for deposition or for production of documents via subpoenas, there are few things the homeowner should bear in mind concerning subpoenas.

Responding to Subpoenas

You’ve received a document that might be a subpoena. Your immediate reaction may be shock and a desire to immediately obey its request. As with anything legal, it’s best not to act on impulse but to carefully consider the options before you. While you will likely need to comply, there are times when a court will agree to modify the subpoena’s request or even to terminate it entirely. This guide cannot give you legal advice about your situation and you should contact a lawyer for specific legal advice. However, this post should be able to answer the preliminary questions you may have about how best to respond.

1. What is a subpoena?

A subpoena is a legal order commanding the person or organization named in the subpoena to give sworn testimony at a specified time and place about a matter concerned in an investigation or a legal proceeding, such as a trial. A subpoena duces tecum substitutes the requirement of your appearance to testify with a requirement that you supply specific physical material in your possession. A deposition subpoena means that your sworn testimony will be taken during a phase of the trial process known as discovery, and will likely occur at a lawyer’s office.

Subpoenas may be issued by the following people involved in the legal case associated with the subpoena:

  • the judge presiding over the legal proceedings
  • the clerk of the court where the lawsuit has been filed
  • a private lawyer representing one of the parties in the lawsuit
  • a government lawyer such as the Attorney General or District Attorney

(Note that the Attorney General and District Attorney can issue a subpoena during an investigation, before initiating a legal case).

Given that a subpoena is an order to produce yourself and/or tangible items in a very specific legal setting, it is imperative that you take it seriously. Failure to comply with a subpoena can have serious consequences. However, you do have certain options in how best to respond.

2. Did you receive a subpoena?

You’ll first want to determine precisely what you’ve received. Review the documents to see whether it is a subpoena duces tecum, to access material in your possession.

Subpoenas come in several flavors, and you may need someone trained in the law to help you determine what type of legal document you’ve received, if you are not quite familiar with legal documents. However, a subpoena contains certain distinguishing characteristics. Look carefully at the document for:

  • the full name of a court in the document’s title, or letterhead
  • the word “Subpoena” in bold in the top third of the document
  • the words “you are commanded to report,” or a similar variation
  • your name
  • a specific date, time and location for you to appear or for you to provide the requested materials
  • in some cases, the penalty for non-compliance will be included

Subpoenas are not necessarily filed with the court, so if you have doubts about the document you’ve received, ask a lawyer or call the person who signed the document and ask if they have in fact sent a subpoena. (An address and or telephone number should follow the signature.)

3. Accepting a Subpoena vs. Complying with a Subpoena

Once you’ve determined that you have received a subpoena, you may feel that you want to contest the subpoena because you believe that it is invalid or unreasonable. You can still do so despite having received the subpoena (which in most cases arrived by registered mail, or by a person delivering it to you and requesting your signature). Acceptance of the subpoena does not constitute your assent to comply with it. However, if you object to the terms of the subpoena, then you must inform the court about your decision to challenge it.

4. Inconvenient Date & Cost of Travel

As long as you are not one of the parties in the case and you have to travel an appreciable distance, your transportation costs should be covered and you should be given an attendance fee. The costs and fees are set according to the rules of the court named in the subpoena. Generally, in a civil case you should receive the cash or check before you have to appear. After you testify in a criminal case, you should receive an attendance fee and travel reimbursement.

If appearing at the time and place specified by the subpoena is of great inconvenience, call the person who issued the subpoena, and he may be able to reschedule your appearance to a more convenient date. However, keep in mind that postponement may not be an option because a court date has been set for the trial and cannot be moved. If so, and if you would suffer extreme hardship from having to appear, consult a lawyer who may be able to help.

5. Filing an Objection to a Subpoena

The subpoena will require that you either appear, or produce documents or other material, at a specific time and location. If you want to inform the court of your objections you will need to file a Motion to Quash. Typically, a Motion to Quash contains a request to the court asking to modify or terminate the subpoena based on certain objections, and a memorandum explaining how the law supports the objections.

You should not wait until the date specified to make your objection known to the court. There are many valid reasons to object, the most common being:

  • Improper service

The law requires that you receive (were “served”) with the subpoena in a specified way. Requirements for service vary according to jurisdiction, and the subject is too complicated to address in this guide. You may want to consult with an attorney or perform your own legal research to understand whether service was proper. However, this is usually not a strong objection because in all likelihood you will merely be served once again.

  • Scope of Request

If you believe the subpoena you’ve received requests information or material that would be difficult to gather, you may be able to challenge it. Should the court agree with your objections, it may nullify the subpoena. More likely, the court will limit the scope of the subpoena, set a more reasonable deadline for you to deliver the materials, and, if a voluminous amount of documents have been requested, the court may also require the other party to compensate you for making the necessary copies of each document. (Note: you should not have to create anything new for a subpoena request; the request should only be for existing material within your possession.)

It is important to note two things here: the court does not usually monitor who and what is subpoenaed, and under rules of trial procedure, a party to a lawsuit is permitted to send a subpoena to anyone he thinks might have material useful for his case. Additionally the material doesn’t even have to relate to the subject of the lawsuit. A party is entitled to request materials it thinks might have the potential to lead to relevant information concerning the subject matter of the case. Thus, unsurprisingly, many subpoenas are drafted to be broad in scope, and in some cases, to have a short deadline.

  • Confidential Material

If the subpoena requires that you turn over confidential documents, or testify about confidential matters, like the identity of an anonymous source, do not immediately comply with the request. The law recognizes the importance of protecting certain communications and grants them a privileged status for purposes of a lawsuit.

For example:

* Certain states have enacted “shield” laws protecting journalists and others from being compelled to testify about information collected during the newsgathering process, including the disclosure of anonymous sources.

* Both state and federal law prevents certain professionals, like doctors and lawyers, from being forced to testify or submit documents about their patients or clients.

* Both state and federal law grant close relatives immunity from testifying in certain situations.

* Certain provisions are designed to protect homeowners in foreclosure as well.

Because these protections vary according to each jurisdiction you will need to consult a lawyer, or perform your own legal research, to see whether any apply to your situation.

In matters involving criminal offenses you’ll need to be aware of:

  • Self-incrimination

The Fifth Amendment of the U.S. Constitution protects an individual from being forced to testify against himself when such testimony could result in criminal liability.

In some cases, law enforcement authorities use a subpoena to a build a case against the subpoena recipient before pressing charges. If you think that you may be the focus of a criminal investigation, or worry about incriminating yourself when you testify, do not comply with the subpoena without first consulting a lawyer.

6. Hiring a Lawyer

If you haven’t already made a decision at this point, you should decide whether you want to hire a lawyer. If the request is straightforward and you’re comfortable with supplying the requested information, you may not need a lawyer’s services. However, you will almost always be better off having a lawyer protecting your interests, even if you think you have nothing to hide. You may mischaracterize a situation and make yourself vulnerable to a lawsuit or criminal charges, and if so, will find it hard to rebut the testimony given under oath.

For homeowners without legal knowledge, before contacting a lawyer, write down everything you know about the situation, including: when and how you received the subpoena, the nature of the actions that triggered the subpoena, and any relevant interactions you’ve had with either party of the lawsuit. The act of writing the summary allows you to:

  • record events you may later forget
  • evaluate your position and figure out your next steps
  • focus your conversation with a lawyer (should you wish to consult with one)
  • launch your own legal research
  • potentially determine the subpoena’s validity

When Homeowner’s good faith attempts to amicably work with the Bank in order to resolve the issue fails;

Home owners should wake up TODAY! before it’s too late by mustering enough courage for “Pro Se” Litigation (Self Representation – Do it Yourself) against the Lender – for Mortgage Fraud and other State and Federal law violations using foreclosure defense package found at http://www.fightforeclosure.net “Pro Se” litigation will allow Homeowners to preserved their home equity, saves Attorneys fees by doing it “Pro Se” and pursuing a litigation for Mortgage Fraud, Unjust Enrichment, Quiet Title and Slander of Title; among other causes of action. This option allow the homeowner to stay in their home for 3-5 years for FREE without making a red cent in mortgage payment, until the “Pretender Lender” loses a fortune in litigation costs to high priced Attorneys which will force the “Pretender Lender” to early settlement in order to modify the loan; reducing principal and interest in order to arrive at a decent figure of the monthly amount the struggling homeowner could afford to pay.

If you find yourself in an unfortunate situation of losing or about to lose your home to wrongful fraudulent foreclosure, and need a complete package that will show you step-by-step litigation solutions helping you challenge these fraudsters and ultimately saving your home from foreclosure either through loan modification or “Pro Se” litigation visit: http://www.fightforeclosure.net

 

 

How Homeowners in Foreclosure Litigation Can Effectively Manage their Written Discovery

14 Monday Jul 2014

Posted by in Discovery Strategies, Foreclosure Defense, Judicial States, Litigation Strategies, Non-Judicial States, Pro Se Litigation, Your Legal Rights

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As foreclosure litigation proceeds, each party is entitled to engage in a process of finding out what the opposing party’s claims consist of, the basis for those claims, and what proof or evidence that party has to support his or her position. This process is called “Discovery”.

This discovery may take several directions. Some forms of discovery are Written Interrogatories, Request for Admissions, Request for Production and Inspections of Documents, Request for Disclosure and subpoena duces tecum.

The “discovery” phase is a very important stage in your lawsuit. The outcome of your suit may be determined during this time of discovery. I take Discovery VERY seriously because it is time-sensitive and the attorney has serious responsibilities in this regard.

Clients can and probably will spend many hundreds and even many thousands of dollars in attorney’s fees during the Discovery period. Clients will spend an inordinate amount of time getting all of the documents and answers ready for inclusion in the Discovery. It is the client that has the documents and the answers, not the attorney. Sometimes, clients give responses to the attorney to try to avoid answering discovery properly. The Supreme Court of Texas has attempted to put a stop to this (except in a very limited number of situations) and this attorney does not do that, solely because it is the client that is harmed by the avoidance. Avoidance cost much more money in the long run and the courts will make you answer, most probably, in any event. Not only is it a serious expense in attorneys fees for your attorney to go to hearings to compel you to answer and for Rule 215 sanctions hearings, but the court can assess your opponent’s attorneys fees and costs against you for the avoidance. And, on top of that, a court can get a really bad impression of you than no client can erase. As to sanctions, the Court can take away you right to present evidence and causes of actions, dismiss your pleadings, and, with the “death penalty”, dismiss your case. So, this is very serious. I would never want you to go down this futile path.

No doubt it is a chore, tedious and time-consuming, but your efforts and your understanding of these Rules Regarding Your Written Discover Responses will save you money in the long run, and may keep you from losing your case or losing on some important point on a technicality. Many areas of family law are very technical. Under-standing of these Rules Regarding Your Written Discover Responses will help you appreciate what these various types of written discovery are. The types of discovery are:

(1) Written Interrogatories are questions you are asked and which you must answer under oath. They are limited in number by statute.

(2) Request for Admissions are basically statements or facts that an opposing party wants you to “admit”, but you may “deny” the statement, if the request is not true. If you don’t know (legitimately do not know) the answer, you can respond “I can neither admit or deny”. But, understand that there are always consequences for giving an answering discovery, if you ever change the response in the future. If you don’t timely answer, the admissions (statements) may be “deemed” admitted (taken as true). That, of course, can end your case.

Your responses to Discovery, whatever is required by the Discovery, must be filed with the other attorney, no later than thirty (30) days from the date the questions or requests themselves were received by your attorney. A draft of your answers or responses and all documents requested should be in your attorney’s office within a reasonable time frame in advance of their being sent to the other attorney. Fully abiding by the deadlines is essential, to allow your attorney a chance to digest your responses and discuss them with you, if necessary. Also, these responses sometimes take considerable time to assemble in proper form. So, don’t be lulled into thinking there is plenty of time for you to start preparing your answers or responses. Your attorney will need time to type, revise, review and timely file your answers or responses. Also, extensions require the other side that sent the Discovery to agree, or time and money must be spent to set and conduct a hearing on an extension of time, and those requests are not always granted by the court.

You must answer this Discovery completely and truthfully. If you don’t, you may be sanctioned (punished) by the Judge. As I have written above, this sanctioning could include striking part of your side of the lawsuit or a monetary fine, you and/or your witnesses may not be allowed to testify, you may not be able to bring out certain evidence at trial, or you may lose everything you wanted to accomplish in this lawsuit. Consequently, discovery must be taken very seriously and fully complied with in every way. Some discovery may request privileged materials or are otherwise legally improper questions. The privileged and/or confidential material does not need to be divulged or produced, but you and your attorney better be certain that the objection is legitimate, because, if it is not, and the other side files a motion to compel or a motion for sanctions, you may wind up having to pay attorney’s fees for delaying the process (attorney’s fees for the preparation and presentation of the motion) and costs. If the information is not privileged or protected by law under some other serious legal principle, then a written objection can be raised, BUT YOU STILL HAVE TO ANSWER. The answer might not be able to be used at trial or at any other time, until the Court rules on the specific objection(s).

If your answer was correct at the time, but circumstances later change, or you acquire additional information, or you unintentionally omitted an answer, you must supplement this information at least thirty (30) days prior to trial, and amend your previous answers. You must notify your attorney of any changes in any part of your answers immediately. Failure to supplement thirty (30) days prior to trial can result in undesirable consequences. For example, if you fail to identify a witness, in response to an interrogatory, that witness may not be permitted to testify.

If you need to add names of any witnesses, notify your attorney immediately upon your own knowledge of such.

Whether you want to deny requests or not answer them or produce documents, YOU MUST ANSWER THEM AND PRODUCE THE REQUESTED DOCUMENTS in a timely fashion to your attorney. There may be valid objections to the production or the answers, but, TODAY, you must answer and produce and make an objection (unless it is privileged) and then, both sides wait to get a ruling at trial on the objection. YOU CANNOT AVOID ANYMORE. Your answers and production are still due in 30 days. When appropriate, your attorney will file objections at the same time your answers or responses are filed with the opposing counsel.

(3) Request for Production of Documents and/or Subpoena Duces Tecum (used at depositions and trial)

Both a request for production and a subpoena duces tecum require you to gather and turn over to your attorney and then to the other side, certain relevant, requested documents (or other tangible things such as photographs, school records, tax returns, financial account information, letters, diaries, etc.). Most definitions of the term “documents” are a full, single-spaced page long or more, so very few things don’t fall within the matters to be produced. Then, there must be the original copy (sent to the requestor), a copy for your attorney, a copy to be used in evidence, and you should probably have a copy. Can anyone legitimately wonder why the simplest case can become voluminous in no time? You can copy this mountain of evidence yourself and possibly save some on the reproduction fees and attorney’s fees, also.

These two methods of discovery differ however, in the time allowed for response. The Request for Production has a thirty (30) day deadline for you, through your attorney, to turn over or make available for inspection, the documents or tangible things requested.

The Subpoena Duces Tecum normally has a shorter time frame, requiring you to bring with you to a hearing, trial or deposition, set at a time and certain date, the requested (subpoenaed) documents or other tangible things. These can also be Instanter, which means IMMEDIATELY.

You should bring these things to your attorney in advance of their due date for review and perhaps to protect your legal rights, if possible.

The documents you gather in response to the Request for Production are due in your attorney’s office by the deadline he gives you, which is usually at least a week before they are due at the other side’s office.

You are not required to produce any document or other tangible thing unless it is in your possession, custody or control. This means that you may not have actual possession of something, but as long as you have a superior right to make someone else produce it for you or to you, then the law says you have “possession” of the requested item and must produce it, or at least use your best efforts to produce it.

Sometimes your attorney may choose to provide the other side with the necessary consent form to obtain the requested records (and they incur the expense) from third parties.

If you do not do Discovery properly, my contract with you allows me to withdraw from you as your attorney. I will do that.

If after you make your initial response and you have additional materials that become available (example: new monthly bank statements, or something you overlooked or could not locate before), you must notify your attorney and take them to his/her office at once.

COST SAVINGS SUGGESTIONS

You may substantial save attorney’s fees and costs, if you follow certain suggestions. When you receive a written discovery request, you are likely to resent the time and trouble involved in responding. You have every right to discuss the requests with your attorney. However, you should remember that you pay for all the time your attorney spends on your case. If you require your attorney to spend time listening to your grievances about the discovery process, you are only increasing your fees and accomplishing nothing toward the resolution of your case. If the request is overbroad or harassing (and can be proven so, according to established legal theories), your attorney will file the appropriate objection and seek protection from the court. Otherwise, you must respond.

Interrogatories. When you receive the written interrogatories, you should first carefully read each question. Make sure you understand the question. If not, ask your attorney to explain it to you. Then, you should prepare a draft of the answers. After preparing your answers, review the questions again to make certain your answers are truthful and complete to fully answer the question asked. Do not offer additional information beyond the answer to the Interrogatory, but answer the question asked. All subparts must be responded to in to order asked. Finally, present your answers to your attorney in a legible form, and in the sequence asked in the interrogatories. If you have access to word processing equipment, you should ALWAYS type the answers. This way your attorney will not spend time trying to decipher your handwriting. You should submit your answers to your attorney well before the required answer date. Your attorney will then review your answers and may make suggestions for additional or less information. The attorney will prepare the answers in the proper form and will request you to sign, under oath before a notary public, those types of Discovery requiring answers under oath. Remember, the less time your attorney spends trying to read, understand and complete your answers, the more money you save in fees.

Request for Production. When you receive the request for production, you should first carefully read each request and make sure you understand them. If not, ask your attorney for further explanation. Then, you should begin gathering the requested documents. You should organize them by number, according to the number of the request. If you do not have possession, control or custody of a document, make a legible list of such item, according to the number of the request, and submit the list to your attorney. If the request is for monthly or periodic statements (e.g., bank or brokerage statements), organize them chronologically. Checks and the like can be loaded on a copy machine to the fullest extent possible. Many times, by reducing the image, you can get 8-10 checks on a page. But they must be legible.

You should index each response. For example, if Request #1 calls for bank statements and canceled checks for the period covered from January 1, 1990 to the current date, and you maintained two accounts during that period, your index will be:

“Response to Request #1 – Bank statements and canceled checks from account #5432, First National Bank, for the period covered from Jan.1, 1990 to current date, ewe produced in file #1. Bank statements and canceled checks from account #9876, State National Bank, for the period covered from Jan. 1, 1990 to the current date, are produced in file #1.”

Once the documents are collected, organized and indexed, submit them to your attorney. They should be presented with tabs separating the various documents (or in separate files), clearly identified by number according to the number of the request. Be sure to submit the documents well before the response deadline so that your attorney will have sufficient time to review them.

If you choose to present the material in a disorganized fashion, your attorney will be forced to spend extra time collecting and organizing at his/her hourly rate, which is usually expensive. This will be an additional and unnecessary expense to you, when litigation is expensive enough. Remember, the less time your attorney spends trying to organize, read and understand your production response, the more money you save in fees.

When Homeowner’s good faith attempts to amicably work with the Bank in order to resolve the issue fails;

Home owners should wake up TODAY! before it’s too late by mustering enough courage for “Pro Se” Litigation (Self Representation – Do it Yourself) against the Lender – for Mortgage Fraud and other State and Federal law violations using foreclosure defense package found at http://www.fightforeclosure.net “Pro Se” litigation will allow Homeowners to preserved their home equity, saves Attorneys fees by doing it “Pro Se” and pursuing a litigation for Mortgage Fraud, Unjust Enrichment, Quiet Title and Slander of Title; among other causes of action. This option allow the homeowner to stay in their home for 3-5 years for FREE without making a red cent in mortgage payment, until the “Pretender Lender” loses a fortune in litigation costs to high priced Attorneys which will force the “Pretender Lender” to early settlement in order to modify the loan; reducing principal and interest in order to arrive at a decent figure of the monthly amount the struggling homeowner could afford to pay.

If you find yourself in an unfortunate situation of losing or about to lose your home to wrongful fraudulent foreclosure, and need a complete package that will show you step-by-step litigation solutions helping you challenge these fraudsters and ultimately saving your home from foreclosure either through loan modification or “Pro Se” litigation visit: http://www.fightforeclosure.net

What Borrowers Must Know About How the “Pretender Lenders” Steal Your Home!

24 Tuesday Jun 2014

Posted by in Banks and Lenders, Discovery Strategies, Federal Court, Foreclosure Defense, Fraud, Judicial States, Litigation Strategies, Non-Judicial States, Pro Se Litigation, Trial Strategies, Your Legal Rights

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For those that may have wondered how a loan works in a fiat currency debt based banking system here it is. Here’s how a “bank loan” really works. Homeowners fighting foreclosure in the courtrooms all across America should use these lines of questioning, then watch and see the “pretender lender” sweating like a “he goat” on the witness stand.

Interviews with bankers about a foreclosure. The banker was placed on the witness stand and sworn in. The plaintiff’s (borrower’s) attorney asked the banker the routine questions concerning the banker’s education and background.

The attorney asked the banker, “What is court exhibit A?”

The banker responded by saying, “This is a promissory note.”

The attorney then asked, “Is there an agreement between Mr. Smith (borrower) and the defendant?”

The banker said, “Yes.”

The attorney asked, “Do you believe the agreement includes a lender and a borrower?”

The banker responded by saying, “Yes, I am the lender and Mr. Smith is the borrower.”

The attorney asked, “What do you believe the agreement is?”

The banker quickly responded, saying, ” We have the borrower sign the note and we give the borrower a check.”

The attorney asked, “Does this agreement show the words borrower, lender, loan, interest, credit, or money within the agreement?”

The banker responded by saying, “Sure it does.”

The attorney asked, `”According to your knowledge, who was to loan what to whom according to the written agreement?”

The banker responded by saying, “The lender loaned the borrower a $50,000 check. The borrower got the money and the house and has not repaid the money.”

The attorney noted that the banker never said that the bank received the promissory note as a loan from the borrower to the bank. He asked, “Do you believe an ordinary person can use ordinary terms and understand this written agreement?”

The banker said, “Yes.”

The attorney asked, “Do you believe you or your company legally own the promissory note and have the right to enforce payment from the borrower?”

The banker said, “Absolutely we own it and legally have the right to collect the money.”

The attorney asked, “Does the $50,000 note have actual cash value of $50,000? Actual cash value means the promissory note can be sold for $50,000 cash in the ordinary course of business.”

The banker said, “Yes.”

The attorney asked, “According to your understanding of the alleged agreement, how much actual cash value must the bank loan to the borrower in order for the bank to legally fulfill the agreement and legally own the promissory note?”

The banker said, “$50,000.”

The attorney asked, “According to your belief, if the borrower signs the promissory note and the bank refuses to loan the borrower $50,000 actual cash value, would the bank or borrower own the promissory note?”

The banker said, “The borrower would own it if the bank did not loan the money. The bank gave the borrower a check and that is how the borrower financed the purchase of the house.”

The attorney asked, “Do you believe that the borrower agreed to provide the bank with $50,000 of actual cash value which was used to fund the $50,000 bank loan check back to the same borrower, and then agreed to pay the bank back $50,000 plus interest?”

The banker said, “No. If the borrower provided the $50,000 to fund the check, there was no money loaned by the bank so the bank could not charge interest on money it never loaned.”

The attorney asked, “If this happened, in your opinion would the bank legally own the promissory note and be able to force Mr. Smith to pay the bank interest and principal payments?”

The banker said, “I am not a lawyer so I cannot answer legal questions.”

The attorney asked, ” Is it bank policy that when a borrower receives a $50,000 bank loan, the bank receives $50,000 actual cash value from the borrower, that this gives value to a $50,000 bank loan check, and this check is returned to the borrower as a bank loan which the borrower must repay?”

The banker said, “I do not know the bookkeeping entries.”

The attorney said, “I am asking you if this is the policy.”

The banker responded, “I do not recall.”

The attorney again asked, “Do you believe the agreement between Mr. Smith and the bank is that Mr. Smith provides the bank with actual cash value of $50,000 which is used to fund a $50,000 bank loan check back to himself which he is then required to repay plus interest back to the same bank?”

The banker said, ” I am not a lawyer.”

The attorney said, “Did you not say earlier that an ordinary person can use ordinary terms and understand this written agreement?”

The banker said, “Yes.”

The attorney handed the bank loan agreement marked “Exhibit B” to the banker. He said, “Is there anything in this agreement showing the borrower had knowledge or showing where the borrower gave the bank authorization or permission for the bank to receive $50,000 actual cash value from him and to use this to fund the $50,000 bank loan check which obligates him to give the bank back $50,000 plus interest?”

The banker said, “No.”

The lawyer asked, “If the borrower provided the bank with actual cash value of $50,000 which the bank used to fund the $50,000 check and returned the check back to the alleged borrower as a bank loan check, in your opinion, did the bank loan $50,000 to the borrower?”

The banker said, “No.”

The attorney asked, “If a bank customer provides actual cash value of $50,000 to the bank and the bank returns $50,000 actual cash value back to the same customer, is this a swap or exchange of $50,000 for $50,000.”

The banker replied, “Yes.”

The attorney asked, “Did the agreement call for an exchange of $50,000 swapped for $50,000, or did it call for a $50,000 loan?”

The banker said, “A $50,000 loan.”

The attorney asked, “Is the bank to follow the Federal Reserve Bank policies and procedures when banks grant loans.”

The banker said, “Yes.”

The attorney asked, “What are the standard bank bookkeeping entries for granting loans according to the Federal Reserve Bank policies and procedures?” The attorney handed the banker FED publication Modern Money Mechanics, marked “Exhibit C”.

The banker said, “The promissory note is recorded as a bank asset and a new matching deposit (liability) is created. Then we issue a check from the new deposit back to the borrower.”

The attorney asked, “Is this not a swap or exchange of $50,000 for $50,000?”

The banker said, “This is the standard way to do it.”

The attorney said, “Answer the question. Is it a swap or exchange of $50,000 actual cash value for $50,000 actual cash value? If the note funded the check, must they not both have equal value?”

The banker then pleaded the Fifth Amendment.

The attorney asked, “If the bank’s deposits (liabilities) increase, do the bank’s assets increase by an asset that has actual cash value?”

The banker said, “Yes.”

The attorney asked, “Is there any exception?”

The banker said, “Not that I know of.”

The attorney asked, “If the bank records a new deposit and records an asset on the bank’s books having actual cash value, would the actual cash value always come from a customer of the bank or an investor or a lender to the bank?”

The banker thought for a moment and said, “Yes.”

The attorney asked, “Is it the bank policy to record the promissory note as a bank asset offset by a new liability?”

The banker said, “Yes.”

The attorney said, “Does the promissory note have actual cash value equal to the amount of the bank loan check?”

The banker said “Yes.”

The attorney asked, “Does this bookkeeping entry prove that the borrower provided actual cash value to fund the bank loan check?”

The banker said, “Yes, the bank president told us to do it this way.”

The attorney asked, “How much actual cash value did the bank loan to obtain the promissory note?”

The banker said, “Nothing.”

The attorney asked, “How much actual cash value did the bank receive from the borrower?”

The banker said, “$50,000.”

The attorney said, “Is it true you received $50,000 actual cash value from the borrower, plus monthly payments and then you foreclosed and never invested one cent of legal tender or other depositors’ money to obtain the promissory note in the first place? Is it true that the borrower financed the whole transaction?”

The banker said, “Yes.”

The attorney asked, “Are you telling me the borrower agreed to give the bank $50,000 actual cash value for free and that the banker returned the actual cash value back to the same person as a bank loan?”

The banker said, “I was not there when the borrower agreed to the loan.”

The attorney asked, “Do the standard FED publications show the bank receives actual cash value from the borrower for free and that the bank returns it back to the borrower as a bank loan?”

The banker said, “Yes.”

The attorney said, “Do you believe the bank does this without the borrower’s knowledge or written permission or authorization?”

The banker said, “No.”

The attorney asked, “To the best of your knowledge, is there written permission or authorization for the bank to transfer $50,000 of actual cash value from the borrower to the bank and for the bank to keep it for free?

The banker said, “No.”

The attorney asked, Does this allow the bank to use this $50,000 actual cash value to fund the $50,000 bank loan check back to the same borrower, forcing the borrower to pay the bank $50,000 plus interest? ”

The banker said, “Yes.”

The attorney said, “If the bank transferred $50,000 actual cash value from the borrower to the bank, in this part of the transaction, did the bank loan anything of value to the borrower?”

The banker said, “No.” He knew that one must first deposit something having actual cash value (cash, check, or promissory note) to fund a check.

The attorney asked, “Is it the bank policy to first transfer the actual cash value from the alleged borrower to the lender for the amount of the alleged loan?”

The banker said, “Yes.”

The attorney asked, “Does the bank pay IRS tax on the actual cash value transferred from the alleged borrower to the bank?”

The banker answered, “No, because the actual cash value transferred shows up like a loan from the borrower to the bank, or a deposit which is the same thing, so it is not taxable.”

The attorney asked, “If a loan is forgiven, is it taxable?”

The banker agreed by saying, “Yes.”

The attorney asked, “Is it the bank policy to not return the actual cash value that they received from the alleged borrower unless it is returned as a loan from the bank to the alleged borrower?”

“Yes”, the banker replied.

The attorney said, “You never pay taxes on the actual cash value you receive from the alleged borrower and keep as the bank’s property?”

“No. No tax is paid.”, said the crying banker.

The attorney asked, “When the lender receives the actual cash value from the alleged borrower, does the bank claim that it then owns it and that it is the property of the lender, without the bank loaning or risking one cent of legal tender or other depositors’ money?”

The banker said, “Yes.”

The attorney asked, “Are you telling me the bank policy is that the bank owns the promissory note (actual cash value) without loaning one cent of other depositors’ money or legal tender, that the alleged borrower is the one who provided the funds deposited to fund the bank loan check, and that the bank gets funds from the alleged borrower for free? Is the money then returned back to the same person as a loan which the alleged borrower repays when the bank never gave up any money to obtain the promissory note? Am I hearing this right? I give you the equivalent of $50,000, you return the funds back to me, and I have to repay you $50,000 plus interest? Do you think I am stupid?”

In a shaking voice the banker cried, saying, “All the banks are doing this. Congress allows this.”

The attorney quickly responded, “Does Congress allow the banks to breach written agreements, use false and misleading advertising, act without written permission, authorization, and without the alleged borrower’s knowledge to transfer actual cash value from the alleged borrower to the bank and then return it back as a loan?”

The banker said, “But the borrower got a check and the house.”

The attorney said, “Is it true that the actual cash value that was used to fund the bank loan check came directly from the borrower and that the bank received the funds from the alleged borrower for free?”

“It is true”, said the banker.

The attorney asked, “Is it the bank’s policy to transfer actual cash value from the alleged borrower to the bank and then to keep the funds as the bank’s property, which they loan out as bank loans?”

The banker, showing tears of regret that he had been caught, confessed, “Yes.”

The attorney asked, “Was it the bank’s intent to receive actual cash value from the borrower and return the value of the funds back to the borrower as a loan?”

The banker said, “Yes.” He knew he had to say yes because of the bank policy.

The attorney asked, “Do you believe that it was the borrower’s intent to fund his own bank loan check?”

The banker answered, “I was not there at the time and I cannot know what went through the borrower’s mind.”

The attorney asked, “If a lender loaned a borrower $10,000 and the borrower refused to repay the money, do you believe the lender is damaged?”

The banker thought. If he said no, it would imply that the borrower does not have to repay. If he said yes, it would imply that the borrower is damaged for the loan to the bank of which the bank never repaid. The banker answered, “If a loan is not repaid, the lender is damaged.”

The attorney asked, “Is it the bank policy to take actual cash value from the borrower, use it to fund the bank loan check, and never return the actual cash value to the borrower?”

The banker said, “The bank returns the funds.”

The attorney asked, “Was the actual cash value the bank received from the alleged borrower returned as a return of the money the bank took or was it returned as a bank loan to the borrower?”

The banker said, “As a loan.”

The attorney asked, “How did the bank get the borrower’s money for free?”

The banker said, “That is how it works.”

When Homeowner’s good faith attempts to amicably work with the Bank in order to resolve the issue fails;

Home owners should wake up TODAY! before it’s too late by mustering enough courage for “Pro Se” Litigation (Self Representation – Do it Yourself) against the Lender – for Mortgage Fraud and other State and Federal law violations using foreclosure defense package found at http://www.fightforeclosure.net “Pro Se” litigation will allow Homeowners to preserved their home equity, saves Attorneys fees by doing it “Pro Se” and pursuing a litigation for Mortgage Fraud, Unjust Enrichment, Quiet Title and Slander of Title; among other causes of action. This option allow the homeowner to stay in their home for 3-5 years for FREE without making a red cent in mortgage payment, until the “Pretender Lender” loses a fortune in litigation costs to high priced Attorneys which will force the “Pretender Lender” to early settlement in order to modify the loan; reducing principal and interest in order to arrive at a decent figure of the monthly amount the struggling homeowner could afford to pay.

If you find yourself in an unfortunate situation of losing or about to lose your home to wrongful fraudulent foreclosure, and need a complete package that will show you step-by-step litigation solutions helping you challenge these fraudsters and ultimately saving your home from foreclosure either through loan modification or “Pro Se” litigation visit: http://www.fightforeclosure.net

What Florida Homeowners Should Expect in “Pro Se” Foreclosure Defense Litigation

12 Thursday Jun 2014

Posted by in Affirmative Defenses, Banks and Lenders, Case Laws, Case Study, Discovery Strategies, Federal Court, Foreclosure Crisis, Foreclosure Defense, Judicial States, Legal Research, Litigation Strategies, Loan Modification, Mortgage Laws, Pleadings, Pro Se Litigation, RESPA, State Court, Title Companies, Trial Strategies, Your Legal Rights

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When a Homeowner is approaching foreclosure on his/her property, there are numerous things the homeowner should bear in mind.

(This is Not Intended to be a Legal Advice and Nothing on this Post is to be Construed a Legal Advice).

I. HOMEOWNERS EXPECTATIONS

A. Realistic Expectations – Homeowners Should Expect to See ALL Original Mortgage Closing Documents.

1. Keep the Home – at some point lender will in all probability be entitled to foreclose either for the full amount due, small reduction or large reduction
2. Short Sale – No Buyers/No Money
3. Modify Mortgage – No Mandatory Programs:

Right now there is no program available that will compel a lender to renegotiate a loan, and you cannot force a cram down in bankruptcy. The program Congress passed in July effective Oct. 1, 2008 is a voluntary lender program. In order to be eligible, one must live in the home and have a loan that was issued between January 2005 and
June 2007. The provisions was later amended during the meltdown to include struggling homeowners in past few years. Additionally, the homeowner must be spending at least 31% of his gross monthly income on mortgage debt. The homeowner can be current with the existing mortgage or in default, but either way the homeowner must prove that he/she will not be able to keep paying their existing mortgage and attest that it is not a deliberate default just to obtain lower payments.

All second liens must be retired or paid such as a home equity loan or line of credit, or Condo or Home Owner Ass’n lien. So if the homeowner has a 2nd mortgage, he is not eligible for the program until that debt is paid. And, the homeowner cannot take out another home equity loan for at least five years, unless to pay for necessary upkeep on the home. The homeowner will need approval from the FHA to get the new home equity loan, and total debt cannot exceed 95% of the home’s appraised
value at the time. This means that the homeowner’s present lender must agree to reduce his payoff so that the new loan is not greater than 95% of appraised value. For example, if the present loan in default is $200,000.00 but the home appraises for $150,000.00 the new loan cannot exceed a little over $142,000.00, and the present lender has to agree to reduce the mortgage debt to that amount. You can contact your
current mortgage servicer or go directly to an FHA-approved lender for help. These lenders can be found on the Web site of the Department of Housing and Urban Development: http://www.hud.gov/ As I pointed out above, this is a voluntary program, so the present lender must agree to rework this loan before things can get started.

Also, homeowners should contact the city in which they reside or county to see if they have a homeowner’s assistance program. West Palm Beach will give up to $10,000 to keep its residents from going into default.

Over the years, we have seen FANNIE MAE and FREDDIE MAC announced that they will set aside millions to rewrite mortgage terms so its homeowner can remain in their home. Given the outcome of numerous modification attempts and denials of loan modifications, I do not know whether the terms or conditions for the modification was for the benefit of the lender or the borrower, though any prudent person will conclude it is for the former.

Bank of America, which includes Countrywide, and JP Morgan Chase also announced earlier, that they will set aside millions to rewrite mortgage terms so its home mortgagors can remain in their homes.

4. Stay in the home and try to defeat the foreclosure under TILA RESPA and Lost Note, etc.

II. DEFENDING A MORTGAGE FORECLOSURE

A. Homeowners Should Prepare Themselves for Litigation. (Using Foreclosure Defense Package found at http://fightforeclosure.net

1. Homeowners needed for 4 Events
a. Answer Interrogatories, Request to Produce
b. Homeowner’s Deposition
c. Mediation – Homeowners should understand that mortgage cases like most cases have a high percentage of settling.
d. Trial

2. Cases move slowly even more now because of the volume of foreclosures and the reduction of court budgets.

3. Cases move on a 30/60/90 day tickler system – one side does something the other side gets to respond or sets a hearing.

4. If the Homeowner fails to do any of the above timely or fails to appear for any of the events, he/she may lose his case automatically.

5. Because of the way the system works the Homeowner may not hear from the court for several weeks or months – that does not mean that the court is ignoring the case – that is just how the system works but feel free to call or write and ask questions.

6. If you have a lawyers, keep in contact with the lawyer and advise of changes in circumstances/goals and contact info. If you are representing yourself keep in contact with the court clerk and docket sheet.

7. Home in places like Florida as well as other States should understand that a Foreclosure is – The legal mechanism by which the mortgage lender ends the “equity of redemption” by having a judge determine the amount of debt and a specific date, usually in 30 or 60 days to pay the money, and if not paid by that date, the judge allows the clerk to auction the property. Fla. Stat. §697.02, which changed the old English common law notion that the mortgage gave the lender an interest in the borrower’s land, makes the mortgage a lien against title. Fla. Stat. §45.0315 tells the mortgage lender that the borrower has the right to redeem the property after final judgement of foreclosure, until shortly after the clerk conducts the auction, when the clerk issues the certificate of sale. The client still has legal, recorded title to the property throughout the foreclosure process until the clerk issues the certificate of sale (ends redemption) then the certificate of title (transfers title) 10 days after the clerk’s sale if no objection to sale filed.

8. Deficiency – The judgement will determine the amount of the debt. A deficiency is the difference between the debt owed and the fair market value of the home at the date of the clerk’s sale.

9. Homeowners without Attorneys should knows that the complaint must be answered in 20 days or he/she could automatically lose, unless he/she either files a motion to dismiss with the court or files a motion for leave to extend time to answer “showing good cause” why the answer was not given when due. In either event, the motion needs to be filed before the due date.

B. Read the Summons Complaint, the Mortgage, Note and the Assignments.

1. Check the Summons for proper service and if not prepare a motion to quash.

2. The vast majority of foreclosure complaints are filed by foreclosure factories and will generally have 2 counts – reestablish a lost mortgage and note and foreclose. Fertile area for a motion to dismiss (see the sample motions to dismiss in the package at http://fightforeclosure.net)

3. Homeowners with the foreclosure defense package at http://fightforeclosure.net can be assured that he/she will find a basis to make a good faith motion to dismiss most of the form mortgage foreclosure complaints.

4. Homeowners should endeavor to set the motion to dismiss for hearing 30 days out or so. Otherwise, let the opposing counsel’s office set the hearing.

5. Cannot reestablish a negotiable instrument under Fla. Stat. §71.011 must be Fla. Stat. §673.3091 and person suing to foreclose must have the right to foreclose and reestablish when he files the lawsuit – post lawsuit assignments establish the lender did not own at time of suit unless pre-suit equitable assignment. See: Mason v. Rubin, 727 So.2d 283 (Fla. 4th DCA 1999); National Loan Invest. v. Joymar Ass.,
767 So.2d 549 (Fla. 3rd DCA 2000); State Street Bank v. Lord, 851 So.2d 790 (Fla. 4th DCA 2003). For an example of how far courts will go to find mortgages enforceable see: State Street Bank v. Badra, 765 So.2d 251 (Fla. 4th DCA 2000), Mtg. Elec. Regis. Sys. v. Badra, 4D07-4605 (Fla. 4th DCA 10-15-2008).

C. Answer Affirmative Defenses and Counterclaim

1. A general denial of allegations regarding the lost note is not enough. The foreclosure mill must specifically deny lost note allegations (see forms in the package at http://fightforeclosure.net).

2. Generally speaking Homeowners should be prepared to file a counterclaim with the affirmative defenses because the lender then cannot take a voluntary dismissal without court order and the
SOL (Statutes of Limitation) may expire for the TILA claims. You have more control over the suit, but now you must pay a filing fee for the counterclaim.

3. If Homeowners are not familiar with specific RESPA Yield Spread defense, they can review some of the articles in this blog because in 1995 or so FRB changed the regulations so that made the payment is not automatically a kickback for the referral of business (In my opinion this was the beginning of the mortgage mess we have now). Homeowners using Foreclosure Defense package found at http://fightforeclosure.net will find samples of well structured RESPA Yield Spread premium (YSP) defense within the package.

D. Discovery 

1. In order to take more control over the case and shake up things from the beginning, homeowners using the Foreclosure Defense package at http://fightforeclosure.net should send out well constructed foreclosure Interrogatories and Request to Produce with the Answer. Homeowners in certain cases may also serve Notice of Taking P’s Deposition DT. See package for samples and for the wording. That will give Homeowners more control over the case, putting the Foreclosure Mill on its toes from the word go.

2. Usually the lenders firm will call and ask 3 things 1) “What do you really want – an extended sale date?” 2) “Can I have more time to answer discovery?” 3) “Can I have more time to find you a witness?” Answer to 1) “I really want to rescind the purported loan – do you want to agree to a rescission?” 2 & 3) “No problem as long as you
agree not to set any dispositive motion for hearing until a reasonable time after I get the discovery or take the deposition so that I can prepare and I do not incur an expedited deposition fee.”

3. Lender Depositions: There is rarely a need to actually depose the lender because their testimony rarely varies , and it can work to your disadvantage because if you actually take the pre-trial deposition for the lender or his servicing agent, you will have preserved the lender’s testimony for trial. If for some reason the lender cannot appear on the scheduled trial date, he will either take a voluntary dismissal or settle
the case. It is easier for Homeowners to win their cases or forced favorable settlements when the lender’s representative could not appear at the trial or meet up with the court deadlines.

4. Closing Agents depositions: Again, There is rarely a need to actually depose the closing because the testimony rarely varies and you will have preserved the testimony for trial. They either say: 1) “I do not remember the closing because I do hundreds and this was years ago, but it is my regular business practice to do A B and C and I followed my regular practice for this loan.” – the most credible and the usual
testimony; 2) 1) “I remember this closing and I gave all the required disclosures to the consumer and explained all the documents.” Not credible unless they tie the closing to an exceptional memorable event because the closing generally took place years and hundreds of closings earlier and you can usually catch them on cross “So name the next loan you closed and describe that closing” 3) 1) “I remember this closing and I gave the consumer nothing and explained nothing. Rare – though this has happened at one time. You do need the closing file so you can do a notice of production to non-party.

5. Mortgage Broker depositions: Again, there is rarely a need to actually depose the broker because the testimony rarely varies and you will have preserved the testimony for trial. They either say: 1) “I do not remember this borrower because I do hundreds and this was years ago, but it is my regular business practice to do A B and C and I followed my regular practice for this loan.” – the most credible and the usual
testimony; 2) 1) “I remember this borrower and I gave all the required disclosures to the consumer and explained all the documents.” Not credible unless they tie the borrower to an exceptional memorable event. 3) 1) “I remember this closing and I broke the mortgage brokerage laws and violated TILA. Rare – this has never
happened. You do need their application package so do a notice of production to nonparty.

6. Compare the documents in all of the closing packages: Lender’s underwriting, closing agent and mortgage broker. I have seen 3 different sets of documents. One in each package. The key is what was given to the Homeowner at the closing.

 7. Homeowner’s deposition – very important if the case turns on a factual issue of what happened at the closing. Homeowner needs to be very precise and sure as to what occurred at the closing.

E. Motions to Strike

1. Lender’s counsel frequently moved to strike the defenses. These motions are generally not well taken, and simply prolong the case. See Response to Motion to Strike.

2. There are two rules for striking a party’s pleadings; one arises under Fla. R. Civ. P. 1.140(f), and the other arises under Fla. R. Civ. P. 1.150.

3. Under Rule 1.140(f): “A party may move to strike . . . redundant, immaterial, impertinent, or scandalous matter from any pleading at any time.” Fla. R. Civ. P. 1.140(f).

4. Under Rule 1.150, a party can move to strike a “sham pleading” at any time before trial. This rule requires the Court to hear the motion, take evidence of the respective parties, and if the motion is sustained, allows the Court to strike the pleading to which the motion is directed. The Rule 1.150(b) Motion to Strike as a sham must be verified and must set forth fully the facts on which the movant relies and may be supported by affidavit.

F. Lender’s Motions for Summary Judgment

1. The lender will no doubt file a motion for summary judgment, usually including the affidavit of a servicing agent who has reviewed the file, many times not attaching the documents that he is attesting are true and accurate. The court should rule that the affidavits are hearsay and lack a foundation or predicate because the affiant is summarizing the legal import of documents usually trust agreements and servicing agreements, without attaching copies. See another post in this Blog that deals with the Summary Judgment memorandum for the legal basis to object to the lender’s summary judgment.

III. TRUTH IN LENDING

A. Overview

1. Congress passed TIL to remedy fraudulent practices in the disclosure of the cost of consumer credit, assure meaningful disclosure of credit terms, ease credit shopping, and balance the lending scales weighted in favor of lenders. Beach v. Ocwen, 118 S.Ct.1408 (1998), aff’g Beach v. Great Western Bank, 692 So.2d 146,148-149 (Fla.1997), aff’g Beach v. Great Western, 670 So.2d 986 (Fla. 4th DCA 1996), Dove v. McCormick, 698 So.2d 585, 586 (Fla. 5th DCA 1997), Pignato v. Great Western Bank, 664 So.2d 1011, 1013 (Fla. 4th DCA 1996), Rodash v. AIB Mortgage, 16 F.3d 1142 (11th Cir.1994). {1}

2. TIL creates several substantive consumer rights. §1640(a)(1) gives consumers actual damages for TIL errors in connection with disclosure of any information. §1640(a)(2)(A)(iii) gives consumers statutory damages of twice the amount of any finance charge, up to $2,000.00 for errors in connection with violations of §1635 or §1638(a)(2) through (6), or (9), and the numerical disclosures, outside of the $100.00 error tolerance. See Beach, 692 So.2d p.148-149, Kasket v. Chase Manhattan Bank,
695 So.2d 431,434 (Fla.4 DCA 1997) [Kasket I,] Dove, p.586-587, Pignato, p.1013, Rodash, p.1144. {2} See also §1605(f)(1)(A). {3}

3. §1635(a) allows a consumer to rescind home secured non-purchase credit for any reason within 3 business days from consummation. If a creditor gives inaccurate required information, TIL extends the rescission right for 3 days from the date the creditor delivers the accurate material TIL disclosures and an accurate rescission notice, for up to three years from closing. Pignato, p.1013 (Fla. 4th DCA 1995) (“TILA permits the borrower to rescind a loan transaction until midnight of the third business day following delivery of all of the disclosure materials or the completion
of the transaction, whichever occurs last.”]. See also: Beach, cases, supra, Rodash, Steele v Ford Motor Credit, 783 F.2d 1016,1017 (11th Cir.1986), Semar v. Platte Valley Fed. S&L, 791 F.2d 699, 701-702 (9th Cir. 1986).

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{1} All 11th Circuit TIL decisions and pre- 11th Circuit 5th Circuit cases are binding in Florida. Kasket v. Chase Manhattan Mtge. Corp., 759 So.2d 726 (Fla. 4th DCA 2000) (Kasket, II) [11th Circuit TIL decisions binding in Florida]

{2} §1640’s last paragraph has the §1640(a)(2) damage limit: “In connection with the disclosures referred to in section 1638 of this title, a creditor shall have a liability determined under paragraph (2) only for failing to comply with the requirements of section 1635 of this title or of paragraph (2) (insofar as it requires a disclosure of the “amount financed”), (3), (4), (5), (6), or (9) of section of this title…”

{3} This subsection provides that numerical disclosures in connection with home secured loans shall be treated as being accurate if the amount disclosed as the finance charge does not vary from the actual finance charge by more than $100, or is greater than the amount required to be disclosed. See also Williams v. Chartwell Financial Services, Ltd., 204 F.3d 748 (7th Cir. 2000). (Over-disclosure can also be a violation under certain circumstances.)

———————————————-

4. HOEPA loans (Also called a §1639 or Section 32 loan.) TIL requires additional disclosures and imposes more controls on loans that meet either the “T-Bill Trigger” or “Points and Fees Trigger” set forth at §1602(aa). §1639, Reg Z 226.31 & Reg Z 226.32, require the creditor for a §1602(aa) loan to give additional early [3 days before consummation] disclosures to the consumer and prohibits loans from containing certain terms [i.e. a prohibition on certain balloon payments]. It also has
a special actual damage provision at §1640(a)(4). (HOEPA can make a lender a TIL creditor for the first HOEPA loan). (The trigger for Florida’s Fair Lending Act is based on the HOEPA triggers. This may affect a larger number of loans and may provided post 3 year rescission. See Fla. Stat. §494.00792(d)).

5. Zamarippa v. Cy’s Car Sales, 674 F.2d 877, 879 (11th Cir. 1982), binding in Florida under, Kasket II, hods: “An objective standard is used to determine violations of the TILA, based on the representations contained in the relevant disclosure, documents; it is unnecessary to inquire as to the subjective deception or misunderstanding of particular consumers.”

6. In 1995, Congress created a defensive right to rescind when a lender sues a consumer to foreclose the mortgage. See §1635(a) & (i)[1995], Reg. Z 226.23(a)(3) & (h) [1996]. The §1635(i) amendment triggers the consumer’s defensive right to rescind when the creditor overstates the amount financed by more than $35.00, or errs in the Notice of Right to Cancel form, and the claim is raised to defend a foreclosure. See also Reg Z 226.23(h).

7. Florida defers to the FRB’s interpretation of TIL and its own regulations. Beach, 692 So.2d p.149, Pignato, p.1013, Kasket, I p.434. The U.S. Supreme Court requires deference to the FRB’s interpretations of the Statute and its own regulations. Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 560, 565-570 (1980). TIL is remedial, so courts expansively and broadly apply and interpret TIL in favor of the consumer.
Rodash, p. 1144; Schroder v. Suburban Coastal Corp., 729 F.2d 1371, 1380 (11th Cir. 1984); Kasket II, W.S. Badcock Corp. v. Myers 696 So.2d 776, p. 783 (Fla. 1st DCA 1996) adopting Rodash, p.1144: “TIL is remedial legislation. As such, its language must be liberally construed in favor of the consumer.”

8. Pignato, p. 1013 also holds: “Creditors must strictly comply with TILA. Rodash, 16 F.3d at1144; In re Porter, 961 F.2d 1066, 1078 (3d Cir. 1992). A single violation of TILA gives rise to full liability for statutory damages, which include actual damages incurred by the debtor plus a civil penalty. 15 U.S.C.A. §§1640(a)(1)(2)(A)(i). Moreover, a violation may permit a borrower to rescind a loan transaction, including a rescission of the security interest the creditor has in the borrower’s principal dwelling. 15 U.S.C.A. §§1635(a).” See also the Beach cases.
This is in harmony with W.S. Badcock, p. 779, which holds: “Violations of the TILA are determined on an objective standard, based on the representations in the relevant disclosure documents, with no necessity to establish the subjective misunderstanding or reliance of particular customers.”

B. Assignee Liability

1. §1641(a)(1) and §1641(e)(1)-(2) provides that assignees are liable for §1640(a) damages if the disclosure errors are apparent on the face of the disclosure statement and other documents assigned. Congress statutorily designated the TIL disclosure statement, the TIL notice of right to cancel, and any summary of the closing costs as documents assigned. See §1641(e)(2).

2. §1641(c) provides that assignees are liable for §1635 rescission regardless of the apparent on the face of the “documents assigned” standard for damages claims. Belini v. Washington Mut. Bank, FA, 412 F.3d 17, p. 28 (1st Cir. 2005).

3. You must make sure that you rescind as to the correct “creditor.” See: Miguel v. Country Funding Corp., 309 F.3d 1161 (9th Cir. 2002).

C. Right to Rescind

1. Each consumer with the right to rescind must receive one [1] copy of the correct TIL Disclosure Statement and two [2] copies of a correct Notice of Right to Cancel form. If not, the consumer can rescind for up to 3 years after closing. See: Reg Z 226.23(a)(3), fn 48; Beach v. Ocwen, 118 S.Ct.1408 (1998), aff’g Beach v. Great Western Bank, 692 So.2d 146,148-149 (Fla.1997), aff’g Beach v. Great Western Bank, 670 So.2d 986 (Fla. 4th DCA 1996); Rodash v. AIB Mortgage, 16 F.3d 1142
(11th Cr.1994); Steele v Ford Motor Credit, 783 F.2d 1016 (11th Cir.1986), all binding here under Kasket v. Chase Manhattan Mtge. Corp., 759 So.2d 726 (Fla. 4th DCA 2000) (11th Circuit cases on federal TIL issues are binding on Florida courts).

2. The error must be a “material error” which is defined at Reg Z 226.23 fn 48: “The term “material disclosures” means the required disclosures of the annual percentage rate, the finance charge, the amount financed, the total payments, the payment schedule, and the disclosures and limitations referred to in sections 226.32(c) and (d).”

3. A HOEPA loan requires additional disclosures 3 days before consummation. See: Reg Z 226.31(c)(1) (“The creditor shall furnish the disclosures required by section 226.32 at least three business days prior to consummation of a mortgage transaction covered by section 226.32.”). The failure to deliver the HOEPA forms is an additional TIL material disclosure which extends the right to rescind for violations. See: Reg Z 226.23(a)(3): “The consumer may exercise the right to rescind until midnight of the third business day following consummation, delivery of the notice required by paragraph (b) of this section, or delivery of all material disclosures, [fn]48 whichever occurs last. If the required notice or material disclosures are not delivered, the right to rescind shall expire 3 years after consummation….” See also fn 48 above.

4. Florida’s Fair Lending Act is based on the HOEPA triggers and appears to adopt TIL right to rescind without the 3 year limit. See: Fla. Stat. §494.00792(d). This theory has not been tested in any appellate court.

5. Most creditor’s closing/underwriting files will have a signed acknowledgment that the consumer received 2 copies of the TIL notice of right to cancel. Under TIL 15 U.S.C. 1635(c) this creates a rebuttable presumption of receipt: “Notwithstanding any rule of evidence, written acknowledgment of receipt of any disclosures required under this subchapter by a person to whom information, forms, and a statement is
required to be given pursuant to this section does no more than create a rebuttable presumption of delivery thereof.” Once the consumer’s affidavit or interrogatory answer or deposition stares that the consumer did not receive the 2 notices, this rebuts the presumption of receipt in the acknowledgment and presents a question of fact for trial. See: Cintron v. Bankers Trust Company, 682 So.2d 616 (Fla. 2nd DCA 1996).

6. The critical issue is what did each consumer receive not what is in the creditor’s underwriting or closing file. Make sure that the TIL Right to Rescind form is correctly filled out and the loan closed on the date it purports to have closed. If the lender directs the consumer to deliver the notice of right to cancel form to a post office box, this should extend the right to rescind.

D. Material Errors

1. The TIL Disclosure Statement “Federal Box” will contain the following “material information”. These numbers are taken from the Norwest v. Queen Martin trial memorandum: {4}

Annual Percentage Rate       Finance Charge               Amount Financed
11.227%                                 $176,073.12                     $70,708.16

Total of Payments
$246,781.28

PAYMENTS: Your payment schedule will be:
Number of Payments       Amount of Payments     When Payments Are Due

Monthly beginning
359                                        685.52                            10/01/99

1                                         679.60                             09/01/29

————————————————

{4} The disclosures are interrelated. If one multiplies the monthly payment amounts by the number of payments, and adds the sums, this equals the total of payments. Adding the finance charge to the amount financed equals the total of payments. The annual percentage rate is the percent of these figures, based on 360 monthly payments, using either the American or actuarial method.

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2. At the bottom of the TIL Disclosure Statement, usually just inside the bottom part of the federal box, you will see a place for the creditor to place an “X” next to: “‘e’ means an estimate;” and a second box to place an “X” next to: “all dates and numerical disclosures except the late payment disclosures are estimates.” Estimated disclosures violate TIL.

3. If no Reg Z 226.18(c) required Itemization of Amount Financed (not a material disclosure error) one “work backwards” to determine how the creditor arrived at the TIL disclosures. First, one must deduct the $70,708.16 “amount financed” from the face amount of the note. Lets assume this note was for a $76,500.00 loan. Therefore the creditor had to use $5,791.84 as the total of “prepaid finance charges.” In order
to arrive at the disclosed $70,708.16 “amount financed.” Then one must examine the HUD-1 charges to find the charges that equal the $5,791.84 “prepaid finance charges” to determine the items from the HUD-1 that the creditor included in the $5,791.84 prepaid finance charges to determine if $5,791.84 correct reflects all the prepaid finance charges. See: §1638(a)(2)(A); Reg Z 226.18(b): “The amount financed is calculated by: (1) Determining the principal loan amount or the cash price
(subtracting any downpayment); (2) Adding any other amounts that are financed by the creditor and are not part of the finance charge (usually not applicable); and, (3) Subtracting any prepaid finance charge.”

4. The Norwest/Martin Trial memo has a great deal of detail with respect to the specific charges and violations.

F. Truth in Lending Remedies

1. §1635(b) and Reg Z 226.23(d)(1-4) rescission; and, 2) §1640 damages.

2. Semar v. Platte Valley Federal S & L Ass’n, 791 F.2d 69 (9th Cir. 1986) is the leading case used by virtually all courts to impose TIL’s §1635(b) and Reg Z 226.23(d)(1-4) rescission remedy in a non-§1639, non-vesting case.

3. Semar, interpreted Reg Z 226.23(d)(1) “Effects of rescission: When a consumer rescinds a transaction, the security interest giving rise to the right of rescission becomes void and the consumer shall not be liable for any amount, including any finance charge.” The Semar, Court accepted the consumer’s rescission formula under Reg Z 226.23(d)(1), added all the “finance charges” listed on the HUD-1, plus the 2 $1,000.00 maximum statutory damage awards ($1,000.00 for the initial error and $1,000.00 for the improper response to rescission, increased to $2,000.00 in 1995),
plus all the mortgage payments made, then deducted this sum from the face amount of the Semar, note to arrive at the net debt owed the creditor.

4. §1640(a)(2)(A)(iii) Statutory Damages $2,000.00 for initial errors and $2,000.00 for the improper response to rescission. See: 15 U.S.C. §1635(g); 15 U.S.C. §1640 (a)15 U.S.C. §1640(g); Gerasta v. Hibernia Nat. Bank, 575 F.2d 580 (5th Cir. 1978), binding in the 11th Circuit under Bonner. (TIL statutory damages available for initial TIL error and improper response to demand to rescind).

5. §1640(a)(1) Actual Damages for any errors: Hard to prove need to establish “detrimental reliance” on an erroneous disclosure.

6. §1640(a)(4) Enhanced HOEPA Damages: §1640(a)(4) enhances the damages: “in the case of a failure to comply with any requirement under section 1639 of this title, an amount equal to the sum of all finance charges and fees paid by the consumer, unless the creditor demonstrates that the failure to comply is not material.”

5. Equitable Modification under §1635(b) and Reg Z 226.23(d)(4). Williams v. Homestake Mortg. Co., 968 F.2d 1137 (11th Cir. 1992) allows for equitable modification of TIL, Burden on lender to prove facts that justify the equitable modification. If not, Florida courts must follow Yslas v. D.K Guenther Builders, Inc., 342 So.2d 859, fn 2 (Fla. 2nd DCA 1977), which holds:

“The statutory scheme to effect restoration to the status quo provides that within ten days of receipt of the notice of rescission the creditor return any property of the debtor and void the security interest in the debtor’s property. The debtor is not obligated to tender any property of the creditor in the debtor’s possession until the creditor has performed his obligations. If the creditor does not perform within ten days of the notice or does not take possession of his property within ten days of the
tender, ownership of the creditor’s property vests in the debtor without further obligation.” [emphasis added].

The 2nd District recently reaffirmed Yslas in Associates First Capital v. Booze, 912 So.2d 696 (Fla. 2nd DCA 2005). Associates, involved a partial §1635(b) and Reg Z 226.23(d)(1-4) rescission because the consumer refinanced with the same creditor, and the refinance included an additional advance of credit. In the Associates, the consumer can rescind only the additional advance. Important here, the Associates,
consumer argued, and the Court agreed that the lender failed to perform a condition precedent to equitably modify TIL by failing to respond to his rescission notice within 20 days, as required by §1635(b) and Reg Z 226.23(d)(2):

“If a lender fails to respond within twenty days to the notice of rescission, the ownership of the property vests in the borrowers and they are no longer required to pay the loan. See § 1635(b); Staley v. Americorp Credit Corp., 164 F. Supp. 2d 578, 584 (D. Md. 2001); Gill v. Mid-Penn Consumer Disc. Co., 671 F.Supp. 1021 (E.D.Pa. 1987). However, because 12 C.F.R. § 226.23(f)(2) provides only a partial right of rescission where there is a refinancing, when the Lender failed to respond to
the notice of rescission within twenty days, ownership of only the property subject to the right of rescission — the $994.01 loaned for property taxes — vested in the Borrowers without further obligation.” Associates, p. 698.

G. Truth in Lending Supplements State Remedies & Both Apply

1. Williams v. Public Finance Corp., 598 F.2d 349, rehearing denied with opinion at 609 F.2d 1179 (5th Cir. 1980), binding here under Bonner, holds that a consumer can get both TIL damages and usury damages because state usury laws and the Federal Truth in Lending Act provide separate remedies to rectify separate wrongs based on separate unrelated statutory violations. The 5th Circuit rejected the creditor’s “double penalty” argument by holding that if it accepted the argument, it would give special lenient treatment to the creditor when his loan violates 2 separate statutes, one state and one federal, designed to remedy 2 separate wrongs:

“Moreover, we eschew an analysis of these statutory cases limited by the
common law doctrines of compensation for breach of contract. These cases involve penal statutes, and we are compelled to enforce their clear and direct commands whether or not they seem to be overcompensating in a contract or tort analysis. There is nothing inherently wrong, excessive, or immoral in a borrower receiving two bounties for catching a lending beast who has wronged him twice — first, by sneaking up on him from behind, and then by biting him too hard. The private attorney general who exposes and opposes these credit wolves is not deemed unduly enriched when his valor is richly rewarded and his vendor harshly rebuked. Nor does the state’s punishment for the usurious bite interfere with Congress’s punishment for the wearing of sheep’s clothing.”

“We have come, or gone, a long way from Shakespeare’s ancient caution, “Neither a borrower, nor a lender be.” In today’s world borrowing and lending are daily facts of life. But that a fact becomes diurnal does not mean it has been cleansed of its dire potential. We still heed the Bard’s advice, but in our own modern way — by strict regulation of the strong and careful protection of the weak and unwary. While the well-intended efforts of our many sovereigns may at times sound more like discordant and competing solos than mellifluous duets, we, as judges, must restrain
our impulse to stray from the score.” Williams, 609 F.2d pg. 359-360.

In case the first opinion was unclear on this point, the Williams, rehearing opinion repeated and reaffirmed its “lending wolf” analysis:

“Noting that the effect of appellants’ argument was to ask for “special lenient treatment to lenders who violate two laws instead of just one,” we rejected the approach to the question proposed by the appellants and defined our inquiry in the following terms:

[W]e think the real question in this case is a relatively standard one of statutory interpretation. More specifically, we think the question is whether Congress intended that the TIL Act would apply to loans which violated state usury laws punishable by forfeiture. At the outset we note that no exception for such loans is made explicitly in the TIL Act. Moreover, since the Act is to be construed liberally to effect its remedial purposes, Thomas v. Myers-Dickson Furniture Co., 479 F.2d 740, 748 (5th
Cir. 1973), we are generally disinclined to read into the Act an implicit exception which benefits lenders at the expense of borrowers. However, the real test of whether this exception was intended or not must start with the question of whether it serves or disserves the purposes of the Act. In this analysis resides the real focus of our decision. The ILA and TIL Act provide separate remedies to rectify separate wrongs.
The ILA limits what a lender subject to its provisions can charge for the use of its money; the TIL Act provisions involved here are designed to penalize and deter an independent wrong arising from nondisclosure. [fn5] We did not believe, and do not believe, that it subserves the purposes of the TIL Act to read into it an implied exception for loans which violate unrelated state usury laws. As we have already said, we do not think it especially unfair or unjust to order two punishments for a
lender who violates two laws. And more to the point, we think it would be directly contrary to the purposes and policies of the TIL Act to excuse a violator from federal penalty simply because he is also liable for a state penalty, especially where that state penalty may often be less harsh than the federal penalty…….”

“…… Appellants petition for rehearing have taken offense at our characterization of lenders who violate the ILA as “credit wolves” and as wearers of “sheep’s clothing” when they also violate the disclosure provisions of the TIL Act. They suggest that such labels have obscured our analysis of the legal issues here. Such most certainly is not the case. Our analysis was and is based on our perception of the proper
construction of the federal and state policies, even though their meshing is not nearly as perfect as we and appellants could wish. Nonetheless, as we read the ILA and the TIL Act, appellants have violated both and are subject to the penalties of both. Although appellants’ predations may be technical and they may feel we have cried “wolf” too readily, the fact remains that as we read the statutes appellants are guilty of the violations charged.” Williams, 598 F.2d pg. 1181-1184.

When Homeowner’s good faith attempts to amicably work with the Bank in order to resolve the issue fails;

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How Homeowners in ‘Pro Se” Litigation Can Effectively Prepare Their Discovery Requests

02 Monday Jun 2014

Posted by in Discovery Strategies, Fed, Federal Court, Foreclosure Defense, Judicial States, Litigation Strategies, Non-Judicial States, Pro Se Litigation, State Court, Trial Strategies, Your Legal Rights

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There are certain rules of Discovery every litigant must follow when in a lawsuit.

After a lawsuit is filed, each side is permitted to obtain information and documents from the other side. This process is referred to as discovery.

There are several methods of obtaining information – tools in the discovery tool belt. The methods covered in this book are those that are the least costly and easiest to employ: Interrogatories, Requests for Admissions, and Requests for the Production of Documents. Discovery enables you to get damaging information directly from the bank! Serving the lender with discovery. A defendant may usually commence discovery as soon as he or she has been served the complaint (the written document containing information about the lawsuit).

Sometimes, as is the case in federal court, there are mandatory disclosures that must be provided by each side without being asked. See Federal Civil Rule 26 for more information about mandatory disclosures if your foreclosure is in federal court.

Interrogatories are simply questions asked of the other party. For example, an interrogatory might say, “State the date and amount of each and every payment received by the plaintiff in payment of the mortgage or note since May 1, 2005.” They can be questions, or directed statements, such as this one is, telling the other side to provide specific written information you seek.

Usually, interrogatories are preceded by a list of definitions so the other side is clear on what you mean when you use a particular term. For example, in the suggested definitions following this chapter, “identify” has a very specific (and extensive) definition. These are usually used so the other side’s attorney can’t avoid answering the question based on a limited definition.

One of the most important things to remember about interrogatories is that they are generally limited in how many can be asked. In the Federal Rules of Civil Procedure, each party is limited to asking just 25 interrogatories, and they can only be directed to parties.

A party is someone or some organization who is suing or being sued in a lawsuit.

This means interrogatories can’t be served on the mortgage broker who took the borrower’s loan application unless he or she is first brought into the lawsuit as a party (accomplished by filing a third party complaint). Federal Rule 33 governs interrogatories in federal court. Look at your state’s rules for a heading called “Interrogatories.”

Many chapters will have a section that suggests some interrogatories based on that particular defense. This assumes you will be using the model interrogatory form, and adding in the suggested interrogatories as paragraphs where indicated.

Here are some general rules to follow with respect to interrogatories:

· Leave several spaces below each interrogatory for an answer.
· Some courts require the interrogatory form be provided on diskette or CD to the other party, so the other party can type in the answers and return it to you.
· You must mail a copy of your interrogatories to every other party in the lawsuit (everyone suing or being sued), even if the questions are only directed to the bank.
· You will usually need to mail a copy of the interrogatories to the court, to be filed with the case. (Read your state’s rule on interrogatories.)

Requests for Admissions.

Requests for admissions are simple statements that requires the other party to either admit or deny the true of the statement.

A request for admission to the lender might be, “Admit on May 5, 2006, plaintiff purchased the mortgage from ABC Corporation.”

The lender would then respond in writing with a simple “Admit” or “Deny.” If the lender objects to the request, it may state something similar to, “Plaintiff objects to this request for admission because….”

It may state it doesn’t have sufficient information to form a belief, or refuse to answer on other grounds.

The purpose of requests for admissions is that they narrow the scope of what is contested for trial. If the parties can admit that certain facts are true, then these facts do not generally need to be litigated later. These must be presented in a manner where the other side can either admit or deny each.

If you seek to ask questions with open ended responses, then using interrogatories or depositions might be more useful.

Depositions are beyond the scope of this book, but well-crafted interrogatories might get you the information you seek. In federal court,
like interrogatories, they can only be served on parties.

One of the most important facts to remember about requests for admissions is that in many states, failing to respond to requests within the time limit (30 days in federal court) is equivalent to admitting the statement’s truthfulness.

Be very careful if you are served with requests for admissions so your failure to respond doesn’t equate to admitting each!
Do not be late filing your responses, or you may find them deemed admitted.

Many chapters will have a section that suggests some requests based on that particular chapter. This assumes you will be using the model request for admission form, and adding in the suggested requests as paragraphs where indicated.

Here are some general rules to follow with respect to requests for admissions:

· Leave a couple of spaces below each for an answer.
· Some courts require the requests be provided on diskette or CD to the other party.
· You must mail a copy of your requests to every other party in the lawsuit (everyone suing or being sued), even if the questions are only directed to the bank. · You usually must mail a copy of the requests to the court, to be filed with the case.

Requests for the Production of Documents.

Requests for the production of documents or other tangibles (like records) are a right afforded to litigants during a lawsuit. You may ask the lender in a formal document to produce the original mortgage and note, as well as any other physical thing that relates to the lawsuit. Federal Rule 34 governs these requests.
It would be wise to get copy of the closing documents from the title company, lender, broker, real estate agent, and whoever else is involved in the transaction that may have copies.
You may also want obtain copy of the invoice and appraisal via subpoena to ensure the amount showing on the settlement statement is correct. If the party you want information from is not a party to the lawsuit, you may have to subpoena them for the information.

When you have been served with this type of discovery by the lender, you will not mail a packet of documents court (again, do not mail documents in response to this type of discovery request to the court), although the court may want you to file a Notice that you did, in fact, respond. You will only send the packet of documents to the party requesting that you produce documents.

Getting served with discovery.

Be very mindful that failing to respond to discovery within the time period prescribed by the rules can get you into deep trouble. Answering untruthfully can also get a party into trouble, opening up them to sanctions or attorneys fees and costs for trying to avoid a bona fide question.

Discovery Cut-Off.

In some areas, the court may set a date as the cut-off for discovery. That means you must complete your discovery requests to other parties by this deadline. If the court sets a deadline, it will be included within the cover page of the lawsuit, or a notice will be mailed to you directly.

Home owners should wake up TODAY! before it’s too late by mustering enough courage for “Pro Se” Litigation (Self Representation – Do it Yourself) against the Lender – for Mortgage Fraud and other State and Federal law violations using foreclosure defense package found at http://www.fightforeclosure.net “Pro Se” litigation will allow Homeowners to preserved their home equity, saves Attorneys fees by doing it “Pro Se” and pursuing a litigation for Mortgage Fraud, Quiet Title and Slander of Title; among other causes of action. This option allow the homeowner to stay in their home for 3-5 years for FREE without making a red cent in mortgage payment, until the “Pretender Lender” loses a fortune in litigation costs to high priced Attorneys which will force the “Pretender Lender” to early settlement in order to modify the loan; reducing principal and interest in order to arrive at a decent figure of the monthly amount the struggling homeowner could afford to pay.

If you find yourself in an unfortunate situation of losing or about to lose your home to wrongful fraudulent foreclosure, and need a complete package that will show you step-by-step litigation solutions helping you challenge these fraudsters and ultimately saving your home from foreclosure either through loan modification or “Pro Se” litigation visit: http://www.fightforeclosure.net

How Homeowners Can Effectively Handle Discovery in Foreclosures

02 Monday Jun 2014

Posted by in Discovery Strategies, Federal Court, Foreclosure Defense, Judicial States, Litigation Strategies, Non-Judicial States, State Court, Trial Strategies, Your Legal Rights

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This post details an experience of a Florida foreclosure defense Attorney challenging the big banks to proof their case. Homeowners and “Pro Se” litigants will learn from this experience when implementing strategies to win their foreclosure lawsuits.

Here it goes:

Many people who don’t work in the legal field and/or are unfamiliar with normal court procedures are surprised to see how a lawsuit actually works. It’s not like you see on TV, where a dispute arises and the parties are immediately thrust into a trial. In real life, all litigants have the right to obtain discovery from the other side. This means, in non-lawyer terms, that both sides have the right to require his/her opponent, prior to trial, to provide documents pertinent to the case, to answer interrogatories, and submit to depositions. It’s not like the old TV shows like Matlock, where a cunning lawyer could bring in a surprise witness during trial, win the case, and leave his opponent scratching his head, wondering what happened. Both sides have to disclose their witnesses, indicate what those witnesses are going to testify, and provide pertinent documents, usually long before trial ever begins. The process of obtaining documents from your opponent in a court case, identifying witnesses, and learning what those witnesses will testify is called discovery.

Florida law, like that in most states, has broad discovery rules. Not only must all parties disclose anything relevant to that case, but anything “likely to lead to the discovery of admissible evidence” should also be provided. These broad discovery rules ensure both sides can litigate fairly, preventing a ”trial by sagotage.” In some ways, trials in real life ares like a game of cards, except the participants all have their cards laid on the table, face up.

With this backdrop in place, the interesting question becomes – Do the same rules apply in foreclosure cases? Do homeowners get the same, broad rights to discovery (that every other litigant in every other case enjoys)?

According to the letter of the law, there is no reason to provide homeowners fewer rights in the discovery process than any other litigant. Foreclosure cases are litigated in court (in Florida, anyway), so if homeowners want to ask banks to produce documents, identify witnesses, ascertain what those witnesses will say, answer interrogatories, or submit to depositions, homeowners are perfectly entitled to do so.

In reality, though, it often doesn’t work this way. Banks and their lawyers hate providing discovery in foreclosure cases. They avoid it like the plague. Unfortunately, I’ve witnessed this dynamic many times in foreclosure cases, when bank lawyers respond to my discovery by saying:

You don’t need no stinkin’ discovery, Stopa. I have the original Note, with an endorsement, and that’s all that matters.

Perhaps I’m exaggerating a little, but not much. In my experience, it’s quite common for banks to respond to my discovery requests by saying “we have the Note, we have the mortgage, here is a life of loan history, and a corporate representative will testify at trial. That’s all we’re giving you.”

Obviously, I very much disagree with the banks’ approach in this regard, as I think my clients’ discovery rights are much broader than this. To illustrate, take another look at one of my favorite cases, McLean v. J.P. Morgan Chase Bank, N.A., 37 Fla. L. Weekly D 334 (Fla. 4th DCA 2012). In that case, the Fourth District reversed a summary judgment in favor of a bank because the bank did not prove it had standing at the inception of the case. As the court explained in detail, if a bank is relying on an endorsement to convey standing, it has to prove the endorsement was entered prior to the lawsuit being filed.

If you’ve ever looked at an endorsement on a Note in a mortgage foreclosure case, you know that such endorsements are virtually never dated. It’s just a signature on a piece of paper – no date. As such, it’s essentially impossible for anyone – a homeowner, a judge, or the lawyers for either side – to know when that endorsement was executed. So how is anyone supposed to know whether that endorsement was entered before the lawsuit was filed? In my view, that is a classic example of the type of thing a homeowner can inquire about in discovery. Send the bank an interrogatory and ask when that endorsement was entered. Better yet, send the bank an interrogatory like this:

Interrogatory: The Note you filed in this case on March 23, 2012 contains an endorsement by Mickey Mouse, as Assistant Secretary of Wells Fargo Bank, N.A. Please specify the date of this endorsement as well as the name, address, telephone number, job title, and job description of Mr. Mouse, to include his relationship with Wells Fargo Bank, N.A. on the date of the endorsement.

Of course, this is just one example of the many facts about which homeowners can inquire during the discovery process of a foreclosure case. To illustrate, I had a hearing this week that played out exactly like I described above. I served a Request for Production and First Set of Interrogatories on a bank in a foreclosure case. The bank’s lawyers responded with objections to nearly every request, refusing to disclose much of anything. So I filed a Motion to Compel compliance with these discovery requests. At the hearing, the judge granted that motion, compelling sufficient answers to 17 interrogatories (similar to the one above, but on a broad range of topics, to include forcing the bank to identify all of its witnesses and to provide information about any insurance payments on the subject note/mortgage). In fact, the judge agreed with every one of my requests except for one, finding this interrogatory to be irrelevant:
Interrogatory: Have you ever received any bailout money of any kind from the United States government, either pursuant to TARP or otherwise? If so, please identify the amount of money you received and how and when the money was spent/used/allocated. In your answer, please be sure to disclose the extent to which any such funds were used to provide loans of homeowners in Volusia County, Florida.

My argument for requiring the bank to answer this interrogatory went something like this … Mortgage foreclosure cases are proceedings in equity. A claim for a deficiency is a claim sounding in equity. There is nothing equitable about a bank taking billions of dollars in taxpayer bailout money, including from my clients, which money was intended to avoid foreclosures and provide loan modifications, but for those banks to refuse such modifications. Worse yet, there is nothing equitable about banks getting this bailout, flooding the real estate market with foreclosed properties, driving down property values because of those foreclosures, and then recoup 100% of its alleged deficiency, which it created, despite having been bailed out.

Unfortunately, despite agreeing with me on everything else, the judge did not require an answer to that interrogatory, strongly suggesting (without saying) that he did not agree with the premise of my argument. Respectfully, that’s terribly disappointing. Do you seriously mean to tell me that a bank should get to collect billions in bailout money, not use that money for loan modifications, create a flood of foreclosures in the real estate market, cause prices to drop, create a deficiency, foreclose, collect 100% of the deficiency, and that a homeowner can’t argue “wait, you shouldn’t be able to do this?”

Even if you don’t agree with that argument, I certainly think I should at least be able to argue it. To present evidence to support it (under Florida’s broad discovery rules).

I hope everyone reading this will think long and hard about that issue. Think about the broad discovery rules. Think about how mortgage foreclosure cases are proceedings in equity. Is it really that unreasonable for homeowners to ask, in the face of a lawsuit for foreclosure and a deficiency, “where did all the TARP money go?”

More importantly, if you’re a Florida homeowner, make sure you realize the rights you enjoy during the discovery process. I didn’t win on that interrogatory, but I won on 17 others, and I assure you – forcing the banks to answer such questions will only help as you fight your foreclosure.

End Post!

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Home owners should wake up TODAY! before it’s too late by mustering enough courage for “Pro Se” Litigation (Self Representation – Do it Yourself) against the Lender – for Mortgage Fraud and other State and Federal law violations using foreclosure defense package found at http://www.fightforeclosure.net “Pro Se” litigation will allow Homeowners to preserved their home equity, saves Attorneys fees by doing it “Pro Se” and pursuing a litigation for Mortgage Fraud, Quiet Title and Slander of Title; among other causes of action. This option allow the homeowner to stay in their home for 3-5 years for FREE without making a red cent in mortgage payment, until the “Pretender Lender” loses a fortune in litigation costs to high priced Attorneys which will force the “Pretender Lender” to early settlement in order to modify the loan; reducing principal and interest in order to arrive at a decent figure of the monthly amount the struggling homeowner could afford to pay.

If you find yourself in an unfortunate situation of losing or about to lose your home to wrongful fraudulent foreclosure, and need a complete package that will show you step-by-step litigation solutions helping you challenge these fraudsters and ultimately saving your home from foreclosure either through loan modification or “Pro Se” litigation visit: http://www.fightforeclosure.net

 

How Backlog of Court Cases In Nevada & Other States Will Help Homeowners Save Their Homes

23 Monday Dec 2013

Posted by in Discovery Strategies, Federal Court, Judicial States, Non-Judicial States, State Court

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A report released Tuesday detailing caseloads at Nevada courthouses has administrators urging voters to approve a constitutional amendment next year to create a statewide appellate court.

“The numbers show the unrelenting demand for court services in Nevada,” Supreme Court Chief Justice Kristina Pickering said in a statement accompanying the Annual Report of the Nevada Judiciary.

Pickering said Nevada courts meet the needs of Nevada business and citizens, despite limited resources and declines in staffing.

But she also called the Nevada appeals caseload one of the largest in the nation and a serious problem for people held for months pending criminal trials and for litigants waiting years for the resolution of civil cases.

Nevada is one of 11 states, plus the District of Columbia, without an intermediate appeals court.

Among those states, the seven justices on the Nevada Supreme top the list in cases per justice, the report states.

The Nevada high court received 2,333 appeals in 2013 — far more than the next-highest, West Virginia, with 1,524. The Nevada court disposed of 2,373 cases but it still had almost 1,900 cases pending.

Backlogs can be a key measure of court performance, said Greg Hurley, an analyst with the National Center for State Courts. The nonprofit, based in Williamsburg, Va., studies court issues around the country.

“Clearance rate is probably the single most important thing for case managers to monitor,” Hurley said. “Backlogs, once established, can be very difficult to clear.”

A study of 2010 court caseloads around the country put Nevada last among 25 states with courts of general jurisdiction in clearance rate for civil cases. Forty-six states have general jurisdiction courts, which hear a range of cases including criminal, civil, family and probate.

Nevada also ranked last among 23 states in a comparison of clearance rates for domestic relations cases.

Nevada Supreme Court spokesman Bill Gang said Nevada’s district court clearance rates for civil cases improved from 82 percent in 2010 to 119 percent in fiscal 2013, after the state added 10 judges in Las Vegas. The clearance rate in domestic relations cases remained about the same as in 2010, Gang said.

The 52-page annual Nevada courts report released Tuesday projects the cost of establishing a three-judge appeals court at about $1.5 million, and suggests it might save other costs.

Overall, the state court administration and management budget was just under $62 million in 2013. About one-third, or almost $21 million, went to the salaries of justices and district judges.

In all, courts in the 10 districts around the state took in 129,026 non-traffic cases in 2013, or 1,300 more than the previous year. The 82 judges in those courts disposed of 128,170 cases, down 2.5 percent from the previous year.

The 52 state judges in the Clark County courthouse handled an average of 1,840 cases each during the fiscal year ending June 30. That made the Las Vegas-area courts by far the busiest in the state.

By comparison, the 15 state court judges in Washoe County each handled an average of 1,308 cases in fiscal 2013. The two judges in the 7th District covering Eureka, Lincoln and White Pine counties handled 400 cases each.

If you find yourself in an unfortunate situation of losing or about to lose your home to wrongful fraudulent foreclosure, and need a complete package  that will help you challenge these fraudsters and save your home from foreclosure visit: http://www.fightforeclosure.net The backlog of Nevada as well as other states where homeowners needs home saving foreclosure solutions may result to the delay needed to plan your effective legal strategy to save your home.

Successful Appeal Guidelines For Wrongful Foreclosure

18 Wednesday Dec 2013

Posted by in Appeal, Discovery Strategies, Federal Court, Judicial States, Litigation Strategies, Non-Judicial States, Pleadings, Pro Se Litigation, Trial Strategies, Your Legal Rights

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In the heat of battle at trial, it can be challenging to remember that the legal war may not end with the trial court’s judgment. The final victory ultimately may depend upon the record created and preserved for appeal. Here are ten important guide to help ensure that your case is appealable—and “appealing”—to a reviewing court.

 1: Make an appellate battle plan. Start by preparing a thorough written analysis of the legal theories at issue in your case. Be certain to include the elements of each cause of action and defense you plan to allege, and of those you anticipate your opponent will raise. Include all applicable standards and burdens of proof for getting to the jury (such as requiring expert testimony on the standard of care). As you analyze, consider whether your case presents any potential constitutional claims. Constitutional issues are of keen interest to appellate courts, and presenting interesting constitutional arguments may increase the chances for a grant of discretionary review or of oral argument on appeal.

2: As the battle begins, begin building the record. If it’s not in the record, it didn’t happen. There is nothing more important to an appeal than ensuring that there is an adequate record to present to the appellate court. The trial record is all that the appellate court may consider when deciding appellate issues. As you move into the pretrial and trial phases, you must make sure that all issues are presented to the trial court, that error is preserved, and that harm from the error is shown on the appellate record. The court of appeals is not the place to try to perfect the trial record: Almost every appellate argument must first be raised in the trial court to be preserved for appeal. This means you must be thorough in your writings to the court and ensure the record is complete, clean, and comprehensive.

3: Aim, fire, and engage with an appeal in mind. Because your pleadings will prescribe the universe of substantive issues to be tried—and ultimately to be considered on appeal—plead properly and well. In federal court, make sure the Rule 16 pretrial order properly states all your claims and defenses. Because the pretrial order supersedes the pleadings and controls the subsequent course of the action, Rule 16 may bar review of an issue that was omitted from the pretrial order. Check your pleadings and pretrial order against your battle plan analysis and draft charge to make sure nothing is waived. Remain mindful of record preservation as you begin to narrow the battlefield through discovery, pretrial motions, and hearings. The history of all pretrial skirmishes will be told at the appellate level only through the record, and you might be relying on these early rulings to establish reversible error.

4: Tell a clear and compelling story . . . on the record. Once you are in trial, you (properly) will be thinking about the story that is unfolding in front of the jury. However, you must also be aware that the record will have to tell a story to the appellate court as well. As you move through pretrial and trial, look ahead to the statement of facts on appeal. Because the appellate court will view your case only through the cold record, the statement of facts is a critically important section of an appellate brief: It must tell a coherent tale, preferably an interesting one. So plan your presentation of evidence at trial so that you will have fully fleshed out facts on appeal. There is nothing more tedious in preparing an appellate brief than searching the record for that one small—but now essential— fact that you are certain was mentioned somewhere, sometime.

5: Make good objections and get a ruling . . . on the record. Here are the four saddest words you can hear from an appellate court: “Great argument; not preserved.” To preserve the issue for appeal, you must raise an objection, ask for a cure, and secure a ruling. You must ensure that the trial record accurately reflects timely, meaningful objections, made on clearly stated grounds and followed by a ruling by the court (or a clear request to rule). Pay attention to the timeliness of your objections. Generally, the objection must be made as soon as the objectionable situation arises. Timing is key: A premature or late objection is like no objection and does not preserve error. When in doubt, object. If an aligned co‑party is making the objection, motion, or request, and you want to join, be sure that the record shows it. If you end up being the only appellant, you will want the benefit of the other party’s objections. And here’s a cautionary note: A key record-preservation mistake is “inviting error” by relying upon evidence that you have objected to at trial.

6: Keep the record complete. To present your case fully on appeal—and to preserve clearly an error for review—you must be sure that the appellate record be complete, reflecting all substantive issues argued, any complaint about error and its preservation, and the harm that error caused. o begin, make sure the clerk has filed all your pleadings and motions, as well as all orders, the jury verdict, and the judgment. Get a file-marked copy for your file. Ensure that exhibits are actually admitted into evidence or made part of the record as excluded. Exhibits that are merely marked and offered are not part of the record on appeal. If the trial court excludes an exhibit, ask the court to admit the document as a “court exhibit” so you can show the appellate court what was excluded in order to obtain reversal on appeal. An erroneous exclusion of any other type of evidence likewise is generally not reviewable on appeal unless the proponent makes an adequate offer of proof. Keep your own list of all exhibits as they are offered into evidence, indicating what has and has not been admitted. If you go off the record for conversation and sidebar discussions, make sure you request to be put back on the record when ready. Also, make sure you memorialize any requests and rulings that occurred off the record when you go back on. Particularly, make sure the court reporter is recording your objections, and see to it that the court reporter’s fingers are moving when you want what is being said to be on the record.

7: Keep the record clean. Correct any misstatement of the court or opposing counsel immediately—these can come back to haunt you on appeal. Also, take remedial measures to clean up prejudicial evidence in the record and preserve the error if it remains: a motion for mistrial (if prejudicial evidence is before the jury), a motion to strike (if evidence that should not be in the record finds its way into the record), or a request for curative instructions to the jury (if the court denies either of the other two motions). Let the court know if these instructions are insufficient, and object if denied.

8: Craft the perfect jury charge and preserve objections to the court’s imperfect one. Many appellate issues arise from the court’s instruction to the jury. As a result, error in the court’s charge is among the most likely sources of reversible error on appeal. Generally, parties are presumed to have consented to erroneous submissions in the absence of an objection by either party, and a party cannot claim error in the court’s failure to give a particular instruction if the party did not request that instruction. Similarly, a party cannot claim that a correct jury instruction was too general or incomplete unless it requested a clarifying instruction. Questions, instructions, and definitions submitted to the jury are restricted to those raised by the written pleadings and the evidence—an opponent’s proposed submission of an unpleaded theory of recovery or affirmative defense should be the subject of an objection. Specificity in objections is the key to preserving arguments about charge error: A party objecting to a charge must point out distinctly the objectionable matter and the grounds of the objection. To avoid waiving complaints of harmful charge error, be certain to make all objections to the charge on the record (even if those objections have been thoroughly discussed in an informal, off-the-record charge conference). Object before the charge is read to the jury and be sure to obtain rulings on the record to all oral objections to the charge. Another cautionary note: An appellant cannot complain about an error that it created or invited. A classic example of “invited” error is an erroneous jury instruction that an appellant requested—parties may not request a submission and then object to it.

9: What is the best way to set the stage for a successful appeal? Win at trial and be the appellee! One exception to this rule is to be the appellant if you have a default judgment.

10: Preserve appellate arguments post-trial, and prepare for attack on the appellate front. Preservation of the record after verdict and judgment is critical to an effective appeal. It is essential that post‑trial motions be carefully drafted to preserve appellate arguments. These motions include motions for judgment, motions for judgment notwithstanding the verdict, motions to disregard certain parts of the jury’s verdict, motions for new trial, and motions to modify, correct, or reform the judgment. If your trial was before the court rather than a jury, carefully follow your jurisdiction’s rules for preserving appellate complaints about the court’s findings of fact and conclusions of law. Also, be mindful of time limitations for filing post-trial motions. In both state and federal courts, generally a narrow window exists to take this important step on the way to appeal.

Legal issues, which are reviewed de novo, have better odds for reversal than fact issues, which will be reviewed more deferentially. And post-trial motions are a good time for losing parties to find constitutional issues, which may help you obtain discretionary review in higher-level appellate courts as well as improve your chances for a grant of oral argument.

Victory in litigation is often elusive—a win in the trial court can become a loss on appeal, and vice versa. Every homeowner involved in a wrongful foreclosure lawsuit must focus not only on the trial but also on the possibility of appeal. This requires early planning and constant vigilance.

If you find yourself in an unfortunate situation of losing or about to your home to wrongful fraudulent foreclosure, and need a complete package  that will help you challenge these fraudsters and save your home from foreclosure visit: http://www.fightforeclosure.net

Florida Homeowner’s Guide to a Civil Lawsuit

02 Saturday Nov 2013

Posted by in Affirmative Defenses, Appeal, Discovery Strategies, Federal Court, Foreclosure Defense, Judicial States, Litigation Strategies, Non-Judicial States, Pleadings, Pro Se Litigation, State Court, Trial Strategies, Your Legal Rights

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This post is intended to offer a general introduction to, and overview of, the course of a “typical” civil lawsuit for homeowners wishing to fight their foreclosure in other to save their homes. Because of the vast array of actions that may be pursued in Florida courts, an exhaustive discussion of the rights, remedies, and procedures available is beyond the scope of this post.

Moreover, this post will focus mainly on the pretrial proceedings, which tend to be more “mysterious” and less publicized than the actual trial. Indeed, pretrial proceedings can be a valuable way of savings your home as many banks and lenders who were in the business of illegal wrongful foreclosure with fraudulently manufactured sets of mortgage documents never take homeowners serious until it gets to that stage. The reason why they take a homeowner serious from that point on is that Banks and lenders will then start making major expenses on legal fees to attorneys retained to respond to the wrongful foreclosure complaints filed by homeowners. With an average wrongful foreclosure litigation lasting between 2 to 5 years, and many homeowners living in their homes mortgage free throughout the litigation period without making a dime in mortgage payments, most smart Lenders and Banks try to cut their loses by quickly modifying mortgage loans with terms most favorable to homeowners in order for homeowners to remain in their rightfully owned dream homes. This fit would not have been accomplished by simply asking the banks to modify a mortgage loan as most loans have been securitized to investors. Lenders and banks from that point on serves only as “servicers” (Not Owners) to the securitized investment trusts From that point after the securitization, they are no longer owners of the mortgage loans, but simply servicers of the trust, unless they later repurchase it after default. They may try to trick homeowners into thinking that they still own their mortgage loans, absolutely not! That’s why they are giving homeowners run around in order to foreclose and steal the home right behind your nose. Folks! they can’t modify mortgage loans for the simple fact that “they cannot modify what they don’t own” period! There are thousands of investors that own the mortgage pools.  Mortgage pools are controlled by PSA (Pooling and Servicing Agreement) and they must obtain consent authorizations from all investors (Real Owners), in order to modify any loans in the securitized pools that is why it is nearly impossible to modify most loans unless you take them to Court to prove their ownership, which they cannot do. Then and only then will the Lenders and Banks get those consent from investors as investors do not want to lose assets and in most times the loans will simply be repurchased from the trust by your lender after default before modification. Once repurchased, your loan is ‘get this’, “no longer a secured debt” but an unsecured debt and your “home” is no longer used as a collateral to your mortgage loan debt. Your mortgage loan may also have been paid off by forced place insurance your lender placed on your loan when you took out your loan, as that is taken out to cover their loses in the event of your default on the mortgage loan. That this why they are charging you the forced placed insurance premium when you took out your mortgage loan, in order to collect large sums of money that reduces your mortgage debt and in most cases, “pays off your entire mortgage loan” when you default. But they will still try to foreclose on you as if your loan is still a secured debt which it is not. They perpetrate those fraud due to your ignorance. That’s of course if you keep quite and let them steal your home right under your nose.

While many homeowners are familiar with the general procedures applicable in criminal cases, they may be less familiar with civil proceedings. For example, unlike criminal defendants, civil litigants enjoy no constitutional speedy trial rights. As a result, civil proceedings may seem unduly lengthy, particularly in counties where the court dockets are especially congested. Courts try to speed up the process and encourage extra-judicial resolution of disputed claims, for example, through court-annexed mediation or arbitration.

I. The Pleadings

A. The Complaint
B. Answer
C. Responsive Motions
D. Counterclaims
E. Crossclaims and Third-Party Claims
F. Amendment

II. Pretrial Procedure

A. Discovery
B. Discovery Methods
C. Protective Orders
D. Sanctions

III. Dismissal

A. Voluntary Dismissal
B. Involuntary Dismissal
C. Summary Judgment

IV. Non-Judicial Methods of Resolution

A. Mediation
B. Arbitration
C. Offers of Judgment

V. Trial

A. Demand for Jury
B. Jury Selection
C. Opening Statements
D. Motion for Directed Verdict
E. Closing Argument
F. Jury Instructions
G. Verdict

VI. Conclusion
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I. The Pleadings.

The term “pleadings” often is used synonymously (and incorrectly) to refer to any documents filed with the court. However, this term has a more limited and technical meaning. The “pleadings” in a lawsuit are simply those filings that set forth either (a) the complaining party’s allegations and causes of action; or (b) the defending party’s responses to those allegations along with any defenses or causes of action the defending party may assert. This becomes significant only when the Florida Rules of Civil Procedure distinguish between “pleadings” and other documents. For example, a motion to dismiss for failure to state a cause of action is directed solely to the “pleadings” and the court may not consider any other filings, such as exhibits, deposition testimony, interrogatory answers, etc.

A. The Complaint.

A civil action is commenced by filing a complaint or petition. Fla. R. Civ. P. 1.050. This initial pleading filed by the complaining party generally consists of factual allegations, a description of the legal claims based on those allegations, and a request for relief. Fla. R. Civ. P. 1.110(b). Some pleadings are subject to special rules. For example, in actions alleging injury or death arising out of medical malpractice, the pleadings are required to include a certificate that counsel has conducted “a reasonable investigation as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant.” Fla. Stat. Sec. 766.104(1) (2003). “Good faith” may be demonstrated by a written expert opinion that there is evidence of medical negligence. Id. Failure to comply with this section may subject the party to an award of fees and costs. Id. These special pleading rules are in addition to the pre-suit notice requirements applicable to medical malpractice claims. See Fla. Stat. Sec. 766.106 (2003). A lawsuit may involve one defendant, multiple defendants, or even a class of defendants. The procedures and requirements for certifying a class of plaintiffs or defendants are found in Fla. R. Civ. P. 1.220. Similarly, the lawsuit may involve multiple plaintiffs or a class of plaintiffs.

A complaint may assert more than one count. It may state different causes of action, even if they are inconsistent. This common practice is called pleading “in the alternative.” Sometimes the conduct complained about may support more than one cause of action, depending on what discovery reveals. For example, Adam contracts to sell a piece of commercial real estate to Bob. Adam decides to accept a better offer from Charles. Bob brings a lawsuit against Adam after Adam reneges on their agreement. Bob may seek monetary damages because he will have to incur additional expenses in finding another suitable property. However, Bob also may sue in the alternative, for “specific performance,” which simply means that the original contract between Bob and Adam would be enforced and Adam would be required to sell the property to Bob, instead of paying Bob money damages.

Therefore, a party often does not have to choose initially which theory it will proceed on; however, the party ultimately can recover only once. Therefore, Bob cannot have both remedies and will have to choose which one he wants.

A party also may plead claims that are inconsistent with each other. As one court has noted, this is because “the pleadings in a cause are merely a tentative outline of the position which the pleader takes before the case is fully developed on the facts.” Hines v. Trager Constr. Co., 188 So. 2d 826, 831 (Fla. 1st DCA), cert. denied, 194 So. 2d 618 (Fla. 1966). This rule applies equally to defendants. Therefore, a defendant may raise defenses that are inconsistent with each other.

The relief most commonly sought is money damages. Compensatory damages are intended to compensate the injured party for its loss. Punitive or exemplary damages are awarded beyond the actual loss and are intended to punish the wrongdoer and to deter similar conduct by others. The availability of punitive damages is limited by statute and court rule. See Fla. Stat. Sec. 768.72 (2003). This statute prevents a party from even including a claim for punitive damages in the complaint until that party has presented record evidence sufficient to support a jury verdict for punitive damages. This is important because the party seeking punitive damage is not entitled to the discovery of information concerning the other party’s financial net worth until the court is satisfied that a triable claim for punitive damages has been established. Id. In 2003, these requirements were incorporated into Fla. R. Civ. P. 1.190(f).

A party also may seek injunctive relief, i.e., an order by the court directing a party to do some act (positive) or to refrain from doing some act (negative). Once such an order is entered by a court, noncompliance with that order may be punishable as contempt of court.

One form of injunctive relief frequently requested is “specific performance,” which is essentially a direction to a party to perform its contract. Specific performance may be requested in land sales contracts and non-compete agreements. However, this remedy is not available to enforce certain types of contracts, such as personal service contracts.

A party also may seek declaratory relief. The trial courts have jurisdiction “to declare rights, status, and other equitable or legal relations whether or not further relief is or could be claimed.” Fla. Stat. Sec. 86.011 (2003). This may include the interpretation and declaration of rights under “a statute, regulation, municipal ordinance, contract, deed, will, franchise, or other article, memorandum, or instrument in writing.” Fla. Stat. Sec. 86.021 (2003). The declaration may be affirmative or negative and “has the force and effect of a final judgment.” Fla. Stat. Sec. 86.011 (2003). For example, declaratory judgment proceedings frequently are initiated by insurance companies seeking a determination of their obligation to defend against another action.

B. Answer.

After being served with the initial pleading, the defendant (or respondent) must respond to it. A defendant has a couple of options at this stage.

Typically the defendant files an answer, which responds to each allegation of the complaint and which may set forth one or more defenses. Fla. R. Civ. P. 1.110(c). Under the rules of civil procedure, “affirmative defenses” must be asserted in a responsive pleading or motion to dismiss or they will be waived. Fla. R. Civ. P. 1.110(d). Affirmative defenses are those defenses that “avoid” rather than deny. For example, the statute of limitations is an affirmative defense. By raising this defense, the defendant asserts that even if the defendant committed all of the horrible acts alleged by the plaintiff, the plaintiff has no cause of action because the action was not filed in a timely fashion. In that respect the claim is “avoided,” rather than denied.

C. Responsive Motions.

In lieu of, or in addition to, filing an answer, the defendant may move to challenge the legal sufficiency of the claims raised by the plaintiff. Fla. R. Civ. P. 1.140. These rules apply equally to counterclaims, crossclaims, and third-party claims. This motion is not a “pleading.” The defendant may argue that the complaint “fails to state a claim,” that is, even assuming that the facts alleged in the complaint are true, the law does not recognize a cause of action. Fla. R. Civ. P. 1.140(b)(6). For example, a store patron sues the grocery store for damages after he is assaulted by a third person in the vacant lot next door. The grocery store will move to dismiss, claiming that the store patron has failed to state a cause of action because it has no duty to protect customers off the premises. An out-of-state defendant might argue that the court lacks “personal jurisdiction” over him or her Fla. R. Civ. P. 1.140(b)(2). because he or she lacks sufficient “contacts” with the state, such as an office or business transactions in the state. This is based on the federal due process clause. Before a court may exercise personal jurisdiction over a nonresident defendant, that defendant must possess “certain minimum contacts with the state” so that “maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice’.” Walt Disney Co. v. Nelson, 677 So. 2d 400, 402 (Fla. 5th DCA 1996) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).

Other defenses that might be raised at this stage include failure to join an indispensable party, Fla. R. Civ. P. 1.140(b)(7). lack of subject matter jurisdiction, Fla. R. Civ. P. 1.140(b)(1). Subject matter jurisdiction refers to the court’s authority or competence to preside over certain matters. For example, by statute, circuit courts lack subject matter jurisdiction to hear matters involving amounts less than $15,000.00. The subject matter for such actions is vested in the county courts. See Fla. Stat. Sec. 34.01(1)(c) (2003). improper venue, Fla. R. Civ. P. 1.140(b)(3). Venue is governed by Fla. Stat. Ch. 47 (2003), except where the Legislature has provided for special venue rules. See, e.g., Fla. Stat. Sec. 770.05 (2003) (limiting choice of venue in actions involving “libel or slander, invasion of privacy, or any other tort founded upon any single publication, exhibition, or utterance”). and insufficiency of process Fla. R. Civ. P. 1.140(b)(4). “Insufficiency of process” refers to the actual document which is served. To determine if the process is adequate, one should examine it to determine that it is signed by a clerk of court or the clerk’s deputy, it bears the clerk’s seal, a correct caption, the defendant’s correct name, the name of the appropriate state, the return date, the name and address of the party or lawyer causing process to be issued, and the name of any defendant organization. If it is not a summons, it should comply with the statute or rule that authorizes its issuance. See H.

Trawick, Florida Practice & Procedure Sec. 8-22, at 170-72 (1999). or service of process. Fla. R. Civ. P. 1.140(b)(5). A defect in the “service of process” claims that the defendant was not served appropriately: for example, he or she was not served personally, when required. Service of process is governed by Fla. R. Civ. P. 1.070 and by Fla. Stat. Chs. 48, 49 (2003). Certain defenses are waived if not raised either by an answer (or other responsive pleading) or by motion to dismiss, such as personal jurisdiction, improper venue, and insufficiency of process or service of process. Fla. R. Civ. P. 1.140(h)(1).

A defendant also may move for “a more definite statement” if the pleading is so vague or ambiguous that the defendant cannot frame a sufficient response to it Fla. R. Civ. P. 1.140(e). or it may move to “strike” portions as “redundant, immaterial, impertinent or scandalous.” Fla. R. Civ. P. 1.140(f).

D. Counterclaims.

In addition to its responsive pleading, a defendant may file a counterclaim, which operates like a complaint, except that the defendant is now the counterclaim plaintiff. Fla. R. Civ. P. 1.170. Thus, a counterclaim sets out factual allegations, legal claims, and a request for relief, just like a complaint. Id. A counterclaim requires a response by the “counterclaim defendant,” who was the plaintiff in the initial complaint. See Fla. R. Civ. P. 1.100(a) and 1.110(c).

Counterclaims may be “permissive” or “compulsory.” Fla. R. Civ. P. 1.170(a), (b). A counterclaim is “compulsory” and, therefore, must be raised in he current action if it “arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction.” Fla. R. Civ. P. 1.170(a). On the other hand, a counterclaim is “permissive” if it does not arise out of the transaction or occurrence that is the subject matter of the opposing party’s claim. Fla. R. Civ. P. 1.170(b). This designation determines whether the counterclaim must be raised at this time or whether the defendant/counterclaim plaintiff can bring a separate action on the counterclaim. Fla. R. Civ. P. 1.170(a), (b).

E. Crossclaims and Third-Party Claims.

A defendant may file a crossclaim against another defendant Fla. R. Civ. P. 1.170(g). or may file a third-party complaint against a nonparty. Fla. R. Civ. P. 1.170(h). Crossclaims and third-party claims include factual allegations, legal claims, and requests for relief. They also require a response by the crossclaim or third-party defendants. Fla. R. Civ. P. 1.100(a). In practice, the pleadings can become quite complicated because of the number of possible claims which may be asserted. For example, a crossclaim defendant can assert a counterclaim against the crossclaim plaintiff and can assert a third-party claim against other nonparties. Multiple plaintiffs who are subject to a counterclaim can assert cross-claims against each other or third-party claims against other nonparties. There may be fourth party complaints. Understanding the availability of crossclaims, counterclaims and third-party claims by various parties aids in comprehension when one is faced with a lengthy caption identifying one party as a defendant, a counterclaim plaintiff, a crossclaim defendant, and a third-party plaintiff, all at the same time.

F. Amendment.

A party may amend the pleading once as a matter of right if there has been no responsive pleading. Otherwise, leave of court or written consent of the other side is required. Fla. R. Civ. P. 1.190(a). Leave of court is “given freely when justice so requires.” Id. Frequently a party will amend the pleading to cure any deficiencies addressed by a motion to dismiss. Amendments may be allowed even after trial under certain circumstances. Fla. R. Civ. P. 1.190(b).

II. Pretrial Procedure.

After responsive pleadings or motions are due, the court may schedule a case management conference to try to expedite and streamline litigation, for example, by scheduling service of papers, coordinating complex litigation, addressing discovery issues, pretrial motions and settlement issues, requiring the parties to file stipulations, etc. Fla. R. Civ. P. 1.200(a).
Later, the court may schedule a pretrial conference to address simplification of issues, amendments, admissions by one party, experts, etc. The failure of a party or its attorney to cooperate in these conferences may result in sanctions. Fla. R. Civ. P. 1.200(b), (c); Fla. Stat. Sec. 768.75(1) (2003).

A. Discovery.

Discovery occupies a large part of most civil lawsuits because Florida courts do not favor trial “by ambush.” Therefore, the rules of civil procedure encourage, indeed mandate, complete discovery. In practice, however, discovery disputes occupy a large amount of attorney and judge time.

Generally, discovery is allowed of “any matter, not privileged, that is relevant to the subject matter of the pending action.” Fla. R. Civ. P. 1.280(b)(1). In this context, “relevance” has a very broad meaning. Information is discoverable if it “appears reasonably calculated to lead to the discovery of admissible evidence.” Id.

The goals of discovery are several. Each party desires to know what the other party intends to present at trial so as to avoid any nasty surprises. Each party also seeks to obtain evidence either to support its claims and/or defenses or rebut the opposing party’s claims and/or defenses, whether directly or through impeachment. Discovery permits a party to obtain information concerning what documents the other side intends to introduce, what that party’s experts and other witnesses will say and how that party intends to prove its claims and/or defenses. In cases in which punitive damages legitimately have been sought, the plaintiff may obtain financial worth information from the alleged wrongdoer. However, keep in mind that punitive damages only may be requested with prior permission of the court. See Fla. Stat. Sec. 768.72 (2003).

While discovery is very broad, it is not without limitation. For example, the other side generally cannot discover privileged information. Fla. R. Civ. P. 1.280(b)(1). Examples of evidentiary privileges recognized by statute are: journalist’s privilege, Fla. Stat. Sec. 90.5015 (2003); attorney-client communications, Fla. Stat. Sec. 90.502 (2003); psychotherapist-patient communications, Fla. Stat. Sec. 90.503 (2003); sexual assault counselor-victim communications, Fla. Stat. Sec. 90.5035 (2003); domestic violence advocate-victim communications, Fla. Stat. Sec. 90.5036 (2003); husband-wife communications, Fla. Stat. Sec. 90.504 (2003); communications to clergy, Fla. Stat. Sec. 90.505 (2003); accountant-client communications, Fla. Stat. Sec. 90.5055 (2003); and trade secrets, Fla. Stat. Sec. 90.506 (2003). The rules also restrict a party’s ability to obtain documents and tangible things prepared “in anticipation of litigation” by the other side. Fla. R. Civ. P. 1.280(b)(3). This is also known as the “work-product” privilege. The rules severely limit a party’s ability to discover information concerning experts who have been retained by the other side in anticipation of litigation but who are not expected to testify at trial. Fla. R. Civ. P. 1.280(b)(4)(B).

B. Discovery Methods.

There are several mechanisms for obtaining discovery. To a large extent, the type of discovery method employed and its timing depend on the information desired and the particular style of the legal practitioner.

1. Depositions.

A “deposition” is an oral examination of a person under oath that is recorded by a stenographer and may be videotaped or audiotaped. Fla. R. Civ. P. 1.310. A party deponent may be required to produce documents during the examination. Fla. R. Civ. P. 1.310(b)(5). Depositions of parties may be used by the other side for any purpose. Fla. R. Civ. P. 1.330(a)(2). Depositions may be taken by telephone. Fla. R. Civ. P. 1.310(b)(7). Depositions frequently are used to impeach subsequent testimony. Sometimes, depositions may be taken prior to the filing of a civil action or during appeal to preserve testimony. Fla. R. Civ. P. 1.290. Depositions may or may not be transcribed, depending upon the wishes of the parties. Depositions also may be conducted on written questions. See Fla. R. Civ. P. 1.320. This method is not used frequently.

2. Interrogatories.

“Interrogatories,” another common discovery method, are written questions that are served on a party Although the rules allow for any person to be deposed, interrogatories and requests for admission may be directed only to parties. See Fla. R. Civ. P. 1.340(a) (“a party may serve upon any other party written interrogatories”) and 1.370(a) (“[A] party may serve upon any other party a written request for the admission of the truth of any matters within the scope of rule 1.280(b)”). and that require written responses within thirty (30) days. Fla. R. Civ. P. 1.340(a). The rules limit the number of questions to thirty (30) without court approval. Id. Form interrogatories pre-approved by the Florida Supreme Court must be used if applicable. Id. Interrogatories must be answered separately, fully, in writing, and under oath unless objections are made. Id. Like deposition testimony, interrogatory answers frequently are used to impeach subsequent testimony.

A party may produce records in lieu of answering an interrogatory if the answer may be derived from those records and if it is equally burdensome for the party to determine the answer as it is for the party seeking the information. Fla. R. Civ. P. 1.340(c).

3. Production of Documents and Things by Parties.

A party may be required to produce documents or other tangible things for inspection and/or copying by the other side. Fla. R. Civ. P. 1.350(a). “Documents” are defined broadly to include writings, drawings, graphs, charts, photographs, phono-records and other “data compilations” from which information may be obtained or translated. See Fla. R. Civ. P. 1.350. The party seeking the information may test and sample the tangible items. Fla. R. Civ. P. 1.350(a)(2). A party may request to enter upon designated land or property to inspect some object or operation. Fla. R. Civ. P. 1.350(a)(3).

4. Production of Documents and Things by Nonparties.

A party also may obtain documents from nonparties by issuing a subpoena directing production of documents or things without deposition. See Fla. R. Civ. P. 1.351(a). Other parties must be notified at least ten (10) days before the subpoena issues so that they may object. Fla. R. Civ. P. 1.351(b). If another party objects, this method of nonparty discovery becomes unavailable. Fla. R. Civ. P. 1.351(c). If there is no objection, the nonparty may comply with the subpoena by providing copies of the documents or things sought. Fla. R. Civ. P. 1.351(e).

5. Mental and Physical Examinations.

In certain circumstances, a party may request that a qualified expert conduct a physical or mental examination of a party, or a person in that party’s control or custody. Fla. R. Civ. P. 1.360(a). This discovery method is utilized most often in personal injury cases and otherwise when a person’s physical or mental condition is in controversy. The party requesting the examination must demonstrate good cause. Fla. R. Civ. P. 1.360(a)(2).

6. Request for Admissions.

An important, but often under-utilized, form of discovery is the “request for admissions.” Fla. R. Civ. P. 1.370. One party serves upon another party a written request that the party admit to the truth of certain matters, including statements or opinions of fact or the application of law to fact, or the genuineness of documents. Fla. R. Civ. P. 1.370(a). If the other side fails to respond or object within thirty (30) days, the facts are considered admitted, which means that they are conclusively established. Fla. R. Civ. P. 1.370(b). The requesting party also may move to determine the sufficiency of the responses. Fla. R. Civ. P. 1.370(a). If the court decides that a response does not comply with the rule, the matter may be deemed admitted or an amended answer required. Id. If a party fails to admit a matter and the other side later proves that matter, the party may have to pay the costs incurred by the other side in making that proof. Id. Recently, the Florida Supreme Court revised the rules of civil procedure to limit the number of requests for admissions to thirty (30).Fla. R. Civ. P. 1.370(a).

C. Protective Orders.

At any time, a party or nonparty from whom discovery is sought may ask the court to enter a protective order to protect that person from “annoyance, embarrassment, oppression, or undue burden or expense.” Fla. R. Civ. P. 1.280(c). Such a protective order may prohibit discovery, limit its scope, or effectuate other protective measures. Id.

D. Sanctions.

A party who is dissatisfied with the other side’s cooperation in discovery may seek an order compelling discovery. Fla. R. Civ. P. 1.380(a). If a motion to compel is granted, the opposing party shall pay the moving party’s expenses incurred in obtaining the order, which may include attorney’s fees, unless the opposition to the motion was justified or other circumstances make an award of expenses unjust. Fla. R. Civ. P. 1.380(a)(4). Similarly, if the motion is denied, the moving party shall pay the nonmoving party’s expenses unless the motion was substantially justified or other circumstances make an award of expenses unjust. Id.

If the court orders discovery, failure to obey that order may be punishable as contempt. Fla. R. Civ. P. 1.380(b). The court has many available sanctions for discovery violations, particularly when the recalcitrant person is a party. Certain matters may be deemed established or a party may be prevented from opposing or supporting claims or defenses or from introducing evidence. Fla. R. Civ. P. 1.380(b)(2). The court may strike pleadings, dismiss the action, or enter a default judgment. Id. However, the failure to submit to a physical or mental examination is not punishable by contempt. Fla. R. Civ. P. 1.380(b)(2)(E).

III. Dismissal.

Frequently, civil actions are dismissed before a trial on the merits of the underlying claims. In addition to settlement, dismissal of a civil action may come about under a number of circumstances.

A. Voluntary Dismissal.

A party’s ability to dismiss its own action is limited by the rules of civil procedure. Fla. R. Civ. P. 1.420. The dismissal rules also apply to counterclaims, crossclaims, and third-party claims. A party may dismiss its lawsuit voluntarily without a court order prior to trial, as long as no motion for summary judgment has been heard or one has been denied and the case has not been submitted to the fact-finder. Fla. R. Civ. P. 1.420(a)(1)(A). An action may be dismissed by stipulation of the parties. Fla. R. Civ. P. 1.420(a)(1)(B). If the plaintiff previously has dismissed a similar case, this second dismissal will operate as an adjudication on the merits and the plaintiff will not be permitted to refile the action. Fla. R. Civ. P. 1.420(a)(1). Otherwise, the plaintiff may be able to refile the action. However, the plaintiff may be required to pay costs before bringing a similar action against the same party. Fla. R. Civ. P. 1.420(d).

B. Involuntary Dismissal.

The court may enter an order of dismissal as a sanction for failure to comply with court rules or orders. Fla. R. Civ. P. 1.420(b). In evaluating whether the compliance merits this drastic sanction, the court considers the intent of the noncompliant party, the existence of previous sanctions, the involvement of the client, the degree of prejudice to the other side, and any justification for noncompliance. See H. Trawick, Florida Practice & Procedure Sec. 21-5, at 335-37 (1999).

If a case is tried to the court (i.e., without a jury), a party may seek involuntary dismissal if the other side, after completing its presentation of evidence, has failed to show a right to relief. Fla. R. Civ. P. 1.420(b).
Unless the order states that the dismissal is without prejudice, an involuntary dismissal under this rule is an adjudication on the merits and precludes the plaintiff from refiling the action. See, e.g., Drady v. Hillsborough County Aviation Auth., 193 So. 2d 201 (Fla. 2d DCA 1967), cert. denied, 210 So. 2d 223 (Fla. 1968).

An action shall be dismissed by the court for failure to prosecute if there has been no record activity for one year unless the court has stayed the action or a party shows good cause prior to the hearing. Fla. R. Civ. P. 1.420(e). In practice, this rule is strictly enforced.

C. Summary Judgment.

After the lawsuit has been filed, either party may move for summary judgment, subject to certain time restrictions. Fla. R. Civ. P. 1.510. Unlike a motion to dismiss, a motion for summary judgment does more than challenge the legal sufficiency of the complaint. Of course, a summary judgment motion may be directed to a counterclaim, crossclaim, or third-party claim in the same manner. In moving for a summary judgment, one argues that the opposing party cannot present evidence that would be sufficient to demonstrate a “genuine issue as to any material fact” and that the moving party is entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510(c). Orders granting summary judgment are scrutinized closely on appeal.

The motion for summary judgment may be supported or opposed by competent affidavits made on personal knowledge that set forth admissible facts. Fla. R. Civ. P. 1.510(a), (b), (e). The parties also may rely upon depositions and answers to interrogatories. Fla. R. Civ. P. 1.510(e). However, in evaluating a motion for summary judgment, a trial judge may not weigh evidence or assess credibility. If the material facts are in dispute, summary judgment may not be entered and the litigation continues.

IV. Non-Judicial Methods of Resolution.

There are several ways in which a case may be resolved by the parties before trial, with the assistance of “alternative dispute resolution” techniques.

A. Mediation.

Mediation is “a process whereby a neutral third person called a mediator acts to encourage and facilitate the resolution of a dispute between two or more parties. It is an informal and nonadversarial process with the objective of helping the disputing parties reach a mutually acceptable and voluntary agreement.” Fla. Stat. Sec. 44.1011(2) (2003). The parties also may stipulate to mediation. Fla. R. Civ. P. 1.710(b). Mediation does not suspend the discovery process. Fla. R. Civ. P. 1.710(c).

Some civil actions are never ordered to mediation, including bond estreatures, habeas corpus and extraordinary writs, bond validations, criminal or civil contempt proceedings, or any other matters specified by the chief judge of that court. Fla. R. Civ. P. 1.710(b).

The mediator may be chosen by the parties or may be appointed by the court. The chief judge maintains a list of mediators who have been certified by the Florida Supreme Court. Fla. Stat. Sec. 44.102(5) (2003). When possible, qualified individuals who have volunteered their time to serve as mediators shall be appointed. Fla. Stat. Sec. 44.102(5)(a) (2003). Often parties agree on a particular mediator in order to select someone with specialized knowledge or expertise in the area under consideration.

Parties who fail to appear at mediation without good cause are subject to sanctions. Fla. R. Civ. P. 1.720(b). The mediator controls the mediation process. Fla. R. Civ. P. 1.720(d). Counsel are permitted to communicate privately with their clients. Id. If the parties and mediator agree, mediation can proceed without counsel. Id. The mediator can meet privately with the parties or their counsel. Fla. R. Civ. P. 1.720(e).

If the mediation results in no agreement, the mediator reports this to the court without comment or recommendation. Fla. R. Civ. P. 1.730(a). The mediator also may identify pending motions or outstanding legal issues, discovery process or other actions whose resolution could facilitate the possibility of a settlement. Id. If an agreement is reached, it is reduced to writing and signed by the parties and their counsel. Fla. R. Civ. P. 1.730(b). Mediation proceedings are privileged, subject to limited exceptions. Fla. Stat. Sec. 44.102(3) (2003). Written communications in mediation are also exempt from Florida’s Public Records Act.Fla. Stat. Sec. 44.102(3) (2003).

B. Arbitration.

There are generally two types of court-ordered arbitration: mandatory non-binding arbitration and voluntary binding arbitration. In addition, arbitration often is ordered when the parties previously have agreed contractually to submit their claims to arbitration. See Fla. Stat. Sec. 682.02 (2003).

1. Mandatory (Non-Binding) Arbitration.

The court may direct the parties to participate in mandatory, non-binding arbitration. See Fla. Stat. Sec. 44.103(2) (2003). Unlike mediation, which is relatively informal, arbitration is similar to a mini-trial because arbitrators may administer oaths, take testimony, issue subpoenas and apply to the court for orders compelling attendance and production. Fla. Stat. Sec. 44.103(4) (2003). The arbitrator (or arbitration panel) renders a written decision that will become final if the parties do not submit a timely request for a trial de novo. Fla. Stat. Sec. 44.103(5) (2003). If a party requests a trial de novo and does not achieve a result that is more favorable than the arbitration award, that party may be assessed costs, including fees. Fla. Stat. Sec. 44.103(6) (2003).

2. Voluntary (Binding) Arbitration.

The parties also may agree in writing to submit their action to binding arbitration, except when constitutional issues are involved. Fla. Stat. Sec. 44.104(1) (2003). The parties may agree on the selection of one or more arbitrators; otherwise, they will be appointed by the court. Fla. Stat. Sec. 44.104(2) (2003). As in mandatory non-binding arbitration, the arbitrator has the power to administer oaths, issue subpoenas, etc. Fla. Stat. Sec. 44.104(7) (2003). A majority of the arbitrators may render a decision. Fla. Stat. Sec. 44.104(8) (2003). The Florida Rules of Evidence apply to voluntary binding arbitration proceedings. Fla. Stat. Sec. 44.104(9) (2003). Appeals to the circuit court are limited to statutorily defined issues, such as failure of the arbitrators to comply with procedural or evidentiary rules, misconduct, etc. Fla. Stat. Sec. 44.104(10) (2003). Disputes involving child custody, visitation, or child support, or the rights of a nonparty to the arbitration are non-arbitrable. Fla. Stat. Sec. 44.104(14) (2003). In addition, the court may require the parties in a medical malpractice action to submit to non-binding arbitration before a panel of arbitrators consisting of a plaintiff’s attorney, a health care practitioner or defense attorney, and a trial attorney. See Fla. Stat. Sec. 766.107(1) (2003). The panel considers the evidence and decides the issues of liability, amount of damages, and apportionment of responsibility among the parties, but may not award punitive damages. Fla. Stat. Sec. 766.107(3)(b) (2003). Voluntary binding arbitration is also available in medical malpractice actions. See Fla Stat. Sec. 766.207 (2003).

C. Offers of Judgment.

Before trial, a party may submit a written “offer of judgment” that offers to settle a claim on specified terms, e.g., for a specified amount, etc. Fla. Stat. Sec. 768.79(1) (2003). The other side has thirty (30) days to accept the offer in writing. If the plaintiff rejects an offer by a defendant under this section and ultimately obtains a judgment of no liability or at least twenty-five percent (25%) less than the offer, the plaintiff will be responsible for costs and fees from the date of the filing of the offer. Id. Likewise, if the defendant rejects a demand for judgment by the plaintiff under this section, and the plaintiff subsequently obtains a judgment that is at least twenty-five percent (25%) greater than the offer, the defendant will be responsible for plaintiff’s fees and costs incurred after the date of the filing of the demand. Id. An offer or demand may be withdrawn in writing at any time prior to its acceptance. Fla. Stat. Sec. 768.79(5) (2003). Another statute provides for the assessment of costs and fees against a party whose rejection of an offer of settlement subsequently is determined by the court to have been “unreasonable.” Unlike Fla. Stat. Sec. 768.79 an award of fees and costs under this section is not mandatory. However, this section does not apply to causes of action which accrue after October 1, 1990 and, therefore, the statute is all but obsolete. See Fla. Stat. Sec. 45.061 (2003). Given the availability of fees and costs under this section, it is a powerful mechanism for encouraging parties to consider settlement offers seriously.

V. Trial.

Although the majority of civil cases are resolved without a trial, many still proceed to trial. Once all motions directed to the last “pleading” Recall that “pleading” has a specialized meaning and refers to complaint and answer, counterclaim and response to counterclaim, crossclaim and response to crossclaim, etc.have been resolved of or, if no such motions were served, within twenty (20) days of the service of the last pleading, an action is “at issue,” and a party may notify the court that it is ready to be set for trial. Fla. R. Civ. P. 1.440(b). Typically, the court directs the parties to mediation if mediation already has not occurred. Otherwise, a trial date may be scheduled.

A. Demand for Jury.

The right to a jury trial in a civil case is not absolute and, in fact, may be waived if it is not demanded in a timely fashion. Fla. R. Civ. P. 1.430(d).

Typically, the demand for a jury trial is appended to the plaintiff’s complaint. A plaintiff may choose, however, for strategic purposes or otherwise, not to assert its jury trial right. However, both parties enjoy the right to a jury trial Fla. R. Civ. P. 1.430(a); Art. I, Sec. 22, Fla. Const. and a defendant who desires a jury trial typically will demand one in its answer or other responsive pleading. If a jury trial is not demanded within the time limits imposed by the rules of civil procedure, it is deemed waived. Fla. R. Civ. P. 1.430(d). If a jury trial is demanded, the demand thereafter may not be withdrawn without consent of the parties. Id.

A matter may be tried completely or partially to a jury. Fla. R. Civ. P. 1.430(c). However, parties are not entitled automatically to a jury trial in all cases because some matters, such as injunction proceedings, are not triable to a jury.

B. Jury Selection.

Assuming that a jury trial has been demanded, the first step in the trial process is jury selection. Prospective jurors may be provided with a questionnaire to determine any legal disqualifications (e.g., felony conviction). Fla. R. Civ. P. 1.431(a)(1). Fla. Stat. Sec. 40.013 (2003), disqualifies from jury service (1) those individuals who have been convicted of a felony and (2) the Governor, Lieutenant Governor, Cabinet officers, clerk of court, and judges. Fla. Stat. Sec. 40.013(1), (2)(a) (2003). This chapter also permits other individuals to be excused upon request, including law enforcement officers and their investigative personnel, expectant mothers and non-full-time employed single parents of children under six years old, practicing attorneys and physicians, the physically infirm, individuals over seventy (70) years old, individuals who demonstrate hardship, extreme inconvenience, or public necessity, and persons who care for certain incapacitated individuals. Id. Jurors also may be provided with questionnaires to assist in voir dire, or the oral examination of prospective jurors. Fla. R. Civ. P. 1.431(a)(2). The parties have the right to examine jurors orally on voir dire. Fla. R. Civ. P. 1.431(b). The court also may question prospective jurors. Id.

The parties may challenge any prospective juror “for cause,” i.e., if the juror is biased, incompetent, or related to a party or attorney for a party or has some interest in the action. Fla. R. Civ. P. 1.431(c)(1). There is no limit to the number of “for cause” challenges that may be raised. On the other hand, a party generally is limited to three (3) “peremptory” challenges, which do not require that the party establish cause, or any other reason for that matter. Fla. R. Civ. P. 1.431(d). However, there are constitutional limitations on peremptory challenges. For example, a party may not utilize its peremptory challenges to exclude prospective jurors in a racially discriminatory manner. See, e.g., State v. Johans, 613 So. 2d 1319, 1321 (Fla. 1993); State v. Neil, 457 So. 2d 481 (Fla. 1984); Laidler v. State, 627 So. 2d 1263 (Fla. 4th DCA 1993).

After the trial jury is selected, the court may provide for the selection of alternate jurors, and the parties generally are allowed one peremptory challenge for this process. Fla. R. Civ. P. 1.431(g). Alternate jurors are selected in the same manner as trial jurors, and are in all respects identical except that they are discharged if they are not needed when the jury retires to deliberate. Fla. R. Civ. P. 1.431(g)(1).

C. Opening Statements.

After a jury is selected, the parties present opening statements. Opening statements are not supposed to be arguments; rather, the parties should advise the jury of what the evidence will prove. After opening statements, the parties or the court may “invoke the rule,” which simply means that nonparty witnesses are excluded from the courtroom while others are testifying. Fla. Stat. Sec. 90.616 (2003). In addition, the witnesses are directed not to discuss the case with anyone other than the attorneys. H. Trawick, Florida Practice & Procedure Sec. 22-7, at 356 (1999).

D. Motion for Directed Verdict.

After the plaintiff presents its case-in-chief, the defendant may move for a directed verdict on the grounds that the plaintiff has failed to present sufficient evidence to justify submission of the case to the jury. Fla. R. Civ. P. 1.480(a). If the action is being tried to the court without a jury, the proper motion is a motion for involuntary dismissal under Fla. R. Civ. P. 1.420(b), as discussed earlier. If the motion is denied or reserved, the case proceeds, subject to the defendant’s ability to renew the motion at the close of the evidence. However, in a nonjury trial, renewal of the motion for involuntary dismissal at the close of the evidence is not authorized.

Orders granting directed verdict are unusual and scrutinized closely on appeal. Courts commonly “reserve ruling” on a motion for directed verdict and allow the case to proceed to the jury. This is a preferred approach because if the trial court grants a directed verdict and does not submit the case to the jury, and the directed verdict is overturned on appeal, the entire case must be retried. On the other hand, if the judge reserves ruling on the motion for directed verdict, the judge may override a subsequent plaintiff’s verdict and if that decision is overturned on appeal, the verdict may simply be reinstated without the necessity of a new trial.

After the plaintiff presents its case and any motions for directed verdict by either side are addressed, the defendant presents its case-in-chief. At the close of the defendant’s case, either party may move for a directed verdict. The plaintiff may present rebuttal evidence.

E. Closing Argument.

After the close of all the evidence, each side has an opportunity to present closing arguments. Because the plaintiff bears the burden of proof, the plaintiff is permitted to argue first and last (i.e., in rebuttal to defendant’s argument). The attorneys are required to confine their closing arguments to the evidence presented, along with its reasonable inferences. Alford v. Barnett Nat’l Bank, 137 Fla. 564, 188 So. 322 (1939). Case law restricts the types of arguments that may be presented in closing argument. For example, an attorney may not express a personal belief in his client or his client’s case. Miami Coin-O-Wash, Inc. v. McGough, 195 So. 2d 227 (Fla. 3d DCA 1967). He may not request that the jury place itself in his client’s shoes, i.e., the so-called “Golden Rule” argument. Bullock v. Branch, 130 So. 2d 74 (Fla. 1st DCA 1961).

F. Jury Instructions.

If the judge does not direct a verdict following the parties’ respective presentations, the case is submitted to a jury. Prior to the close of evidence, the parties must submit requested jury instructions. Fla. R. Civ. P. 1.470(b). These may include numerous form instructions pre-approved by the Florida Supreme Court. Additional instructions may need to be drafted and often there will be great debate between the parties on their wording.

The judge instructs the jurors on the manner in which they are expected to deliberate and the law that they must follow. Finally, the jurors retire to deliberate. Id. Frequently, the jury has questions during the deliberation process. The parties and their attorneys are notified of such questions. There may be some discussion or debate on how such questions are to be answered and the attorneys may object on the record to the answers ultimately provided to the jury.

G. Verdict.

Once the jury’s deliberations are complete, the verdict is announced in open court. A verdict may be either a “general” verdict or a “special” verdict. A general verdict “finds for a party in general terms on all issues within the province of the jury to determine.” H. Trawick, Florida Practice & Procedure Sec. 24-2, at 399 (1999). On the other hand, the court might employ a “special verdict,” which asks the jury to answer specific questions that determine the disputed facts. H. Trawick, Florida Practice & Procedure Sec. 24-3, at 400 (1999). For example, a special verdict form in a negligence action might require the jury to determine whether the defendant owed a duty to the plaintiff. If the answer to this question were negative, the court would enter judgment for the defendant because duty is an essential element of a negligence claim. A general verdict, on the other hand, might simply ask whether the jury’s verdict was for the plaintiff and, if so, for how much. Regardless of the form of verdict that is used, a separate verdict on each count must be required if requested by either party. H. Trawick, Florida Practice & Procedure Sec. 24-2, at 399 (1999). The verdict form is written and signed by the foreperson.

In negligence actions, the verdict is required to be itemized according to economic loss, noneconomic loss, and punitive damages (if awarded). Fla. Stat. Sec. 768.77(1) (2003). “Economic damages” refers to “past lost income and future lost income reduced to present value; medical and funeral expenses; lost support and services; replacement value of lost personal property; loss of appraised fair market value of real property; costs of construction repairs, including labor, overhead, and profit; and any other economic loss which would not have occurred but for the injury giving rise to the cause of action.” Fla. Stat. Sec. 768.81(1) (2003). In addition, damages must be itemized further into past and future damages. Fla. Stat. Sec. 768.77(2) (2003). Economic damages are computed before and after reduction to present value, but no other damages are reduced to present value. Id. After the verdict is read, either party may request that the individual jurors be polled. Each juror is asked then to confirm that the verdict read is his or her verdict. Once the requested polling is complete, the jury is discharged.

VI. Conclusion.

This post provides a general overview of the route of a civil lawsuit. Every lawsuit is different and the steps often vary dramatically. Pretrial proceedings frequently are overlooked as a valuable source of information. Although access to various components of the pretrial process is beyond the scope of this post, homeowners should view this post as a guide for successful wrongful foreclosure defense. Hopefully, this post will serve to “demystify” the pretrial process and assist homeowners gearing up to fight the wrongful foreclosure shops that are illegally snatching away their dream homes.

If you find yourself in an unfortunate situation of losing or about to lose your home to wrongful fraudulent foreclosure, and needed solutions to defend or reclaim your home please visit: http://www.fightforeclosure.net