Category Archives: Your Legal Rights

What Texas Homeowners Needs to Know About Foreclosure in Texas

03 Tuesday Dec 2013

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

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Foreclosures may be judicial (ordered by a court following a judgment in a lawsuit) or non-judicial (“on the courthouse steps”). Most foreclosures in Texas are nonjudicial. These are governed by chapter 51 of the Property Code and are held on the first Tuesday of each month between 10 a.m. and 4 p.m. at a designated spot at the county courthouse. The effect of foreclosure is to cut off and eliminate junior liens, including mechanic’s liens, but not tax obligations.

The remedy of foreclosure is available in the event of a borrower’s monetary default (nonpayment) or technical default (e.g., failure to pay taxes or keep the property insured). In order to determine if there has been a default, the loan documents–the note, the deed of trust, the loan agreement, and so forth–should be carefully examined. Notice and opportunity to cure requirements contained in these documents must be strictly followed if a foreclosure is to be valid.

Notices of foreclosure sales must be filed with the county clerk and posted (usually on a bulletin board in the lobby of the courthouse) at least 21 calendar days prior to the intended foreclosure date. Notices are entitled “Notice of Trustee’s Sale” or “Notice of Substitute Trustee’s Sale.” They provide information about the debt, the legal description of the property, and designate a three-hour period during which the sale will be held. In larger metropolitan areas there are foreclosure listing services which publish a monthly list of properties posted for foreclosure.

Required Notices to the Borrower

Notices to the defaulting borrower must be given in accordance with Property Code sections 51.002 et seq. and the deed of trust. The content of foreclosure notices is technical and must be correct to insure a valid foreclosure that cannot later be attacked by a wrongful foreclosure suit. Clients often protest when their lawyer advises re-noticing the debtor–”But I’ve already sent them an email telling them they are in default.” Not good enough.

Usually, two certified mail notices to the borrower are required, the first being a “Notice of Default and Intent to Accelerate” which gives formal notice of the default and affords an opportunity for the borrower to cure it (at least 20 days for a homestead, although if the deed of trust is on the FNMA form, 30 days must be given). Note that S.B. 766 and S.B. 472, which did not make it out of committee in the 81st Legislature, would have extended the 20-day period. This legislation may be revived in the future. Many lawyers consider it best to routinely give a 30-day notice.

After the cure period has passed, a “Notice of Acceleration and Posting for Foreclosure” must be sent at least 21 days prior to the foreclosure date. This second letter must also specify the location of the sale and a three-hour period during which the sale will take place. A notice of foreclosure sale should be enclosed. This notice is also filed with the county clerk and physically posted at the courthouse. If there is going to be a change in trustees it is also necessary to file a written appointment of substitute trustee. Notices are addressed to the last known address of the borrower contained in the lender’s records (this is the legal requirement), but it is wise for the lender to double-check this to avoid later claims by the borrower that notice was defective. It is prudent to send notices by both first-class and certified mail. Why? The reason has to do with Texas’s mailbox rule, i.e., that a notice properly deposited in the U.S. mail is presumed to be delivered. “Common sense . . . dictates that regular mail is presumed delivered and certified mail enjoys no [such] presumption unless the receipt is returned bearing an appropriate notation.” McCray v. Hoag, 372 S.W.3d 237, 243 (Tex. App.–Dallas 2012, no pet. h.). A careful lender will send notices to all likely addresses where the borrower may be found.

Other lienholders (whether junior or senior) are not entitled to notice. Depending on the first lienholder’s strategy, however, it may be useful to discuss the issue with them.

If the borrower is able to cure, a reinstatement agreement should be executed unless the terms of the debt have been changed (e.g., payments have been lowered) in which case a hybrid reinstatement/modification agreement or even a new note may be appropriate.

Notice to the IRS

The best practice is to do a title search prior to foreclosure to determine if there is an IRS tax lien or other federal lien. If so, notice must be given to the IRS and/or the U.S. Attorney at least 25 days prior to the sale, not including the sale date. 26 U.S.C. § 7425(c)(1). If this is not done, any IRS tax lien on the property will not be extinguished by the sale. Note that the IRS also has 120 days following the sale to redeem the property, although this seldom happens. The successful bidder on an IRS-liened property is therefore not entitled to breathe a sigh of relief until the 121st day.

Fair Debt Collection Practices Act

The Fair Debt Collection Practices Act (15 U.S.C. §§ 1601 et seq.) requires that a borrower be given 30 days to request and obtain verification of the debt. The lender may give notice of default, accelerate the debt, and even post for foreclosure in less time, but the foreclosure sale itself should not be conducted until the 30-day debt verification period has expired.

There is also an equivalent state statute (the Texas Debt Collection Practices Act) contained in Finance Code chapter 392. Failure to provide verification of the debt when the borrower has requested it in writing has serious penalties under both laws.

Due Diligence by the Investor Prior to Foreclosure

Buying property at foreclosure sales is a popular form of investment but it contains traps for the unwary. The investor’s goal is to acquire instant equity in the property by paying a relatively modest sum at the foreclosure sale. However, apparent equity can evaporate if the property is loaded down with liens. It is advisable, therefore, to check the title of the property that will be sold. Is the lien being foreclosed a second or third lien? If so, then the first lien (usually a purchase-money lien held by a mortgage company) will continue in force. First liens are king. They are not extinguished by foreclosure on an inferior lien. What about IRS liens? Improvement liens? Liens imposed by homeowners associations? Any or all of these could consume whatever equity might otherwise have existed in the property. If an investor is unsure as to which liens will be wiped out in a foreclosure sale, then copies of each lien document should be pulled and taken to the investor’s real estate attorney for review. As far as researching title is concerned, every professional investor should ultimately acquire the skills to go to the real property records in the county clerk’s office and do this unaided. One should obtain copies of the warranty deed and any deeds of trust or other lien instruments. Alternatively, a down-date report from a title company may be requested.

If more information is needed about the property itself, one can contact the trustee named in the Notice of Trustee’s Sale. Trustees vary in their level of cooperation but are often willing to provide additional information if they have it. They may have a copy of an inspection report on the property which they may be willing to share. One might even be able to arrange to view the property if it is unoccupied.

The investor should also check the military status of the borrower, since Property Code section 51.015 prohibits non-judicial foreclosure of a dwelling owned by active duty military personnel or within 9 months after active duty ends. Knowingly violating this law is a Class A misdemeanor.

Property Condition

It goes without saying that the investor should physically inspect the property if at all possible, although one should not trespass on occupied property to do this. It is legal, however, to stand in the street (public property) and take photos.

When one buys at a foreclosure sale, it is “as is.” Property condition is therefore important. When buying residential properties in particular, an investor should be especially curious about condition of the foundation (learn to recognize signs of settlement), whether the property is flood-prone, and whether or not there may be environmental contamination (generally not a problem if the house is in a restricted subdivision). It is usually best to avoid any property that suffers from one or more of these deficiencies. Other items that involve significant expense are the roof and the HVAC system.

The past or continuing presence of hazardous substances can impose huge potential liability (particularly on commercial properties) since both Texas and federal law provide that any owner of property (including the investor) is jointly and severally liable with any prior owner for cleanup costs. The Texas Commission on Environmental Quality (“TCEQ”) maintains a web site at www.tceq.state.tx.us where the environmental history of a property can be researched.

Valuation

It is, of course, important not to bid more than the equity in the property (fair market value less the total dollar amount of the liens, if any, that will survive the foreclosure sale). So how does one discover fair market value? Again, it is a question of getting the right information. One of the best ways to do this is to obtain a comparative market analysis or broker price opinion (BPO) from a realtor.

Last-Minute Bankruptcies

Foreclosures can be rendered void by last-minute bankruptcy filings. Some professional investors will check with the bankruptcy clerk’s office the morning of the sale to make sure that the borrower has not filed under any chapter of the U.S. Bankruptcy Code before they bid on the property. Note that the bankruptcy clerk’s office opens at 9 a.m. and bidding commences at 10 a.m. Checking bankruptcy filings is a wise precaution if the borrower has previously filed or threatened bankruptcy. It can be cumbersome and inconvenient to get money back from a trustee on a void sale.

Conduct of the Sale

Foreclosure sales in the larger counties can seem chaotic, with many sales going on at once. There are two general types: sales by trustees (usually attorneys) for individual and institutional lenders and sales by the county sheriff for unpaid taxes. Sales are held at the location designated by the commissioners of the county where the property is located–often the courthouse steps or close by.

The sale is conducted by the named trustee unless a substitute trustee has been duly appointed and notice of the appointment has been filed of record. As a practical matter, the foreclosing trustee is usually the attorney for the lender.

There is no standard or required script for a trustee to follow in auctioning property, although trustees usually recite the details of the note and lien, the fact that the note went into default, proper notice was given, the note was subsequently accelerated, and the property is now for sale to the highest cash bidder. The trustee has a duty to conduct the sale fairly and impartially and to not discourage bidding in any way (this can result in “chilled bidding,” which is a defect). A trustee may set reasonable conditions for conducting the foreclosure sale and may set the terms of payment (e.g., by cash or cashier’s check). However, these conditions and terms must be stated prior to the opening of bidding for the first sale of the day held by that trustee.

Bidding at the Sale

The investor should remain in motion, talking to the trustees, until finding the right trustee with the right property. Caution: do not let the excitement of the sale cause you to exceed your preestablished maximum bid.

The lender often bids the amount of the debt plus accrued fees and costs, so this bid can be anticipated. If the sale generates proceeds in excess of the debt, the trustee must distribute the excess funds to other lienholders in order of seniority and the remaining balance, if any, to the borrower.

If the investor is the successful bidder, he or she should be prepared to make payment “without delay” or within a mutually agreed-upon time. In order to be prepared, seasoned bidders carry with them some cash plus an assortment of cashier’s checks in different amounts made payable to “Trustee.” If the high bidder is for any reason unable to complete the purchase, then the trustee will reopen the bidding and auction the property again. The successful bidder will, within a reasonable time, receive a trustee’s deed or substitute trustee’s deed which conveys the interest that was held by the borrower in the property–no more, no less.

Property Code section 51.009 states that a buyer at a foreclosure sale “acquires the foreclosed property ‘as is’ without any expressed or implied warranties, except as to warranties of title, and at the purchaser’s own risk; and is not a consumer.” The “consumer” part of that statement is meant to prevent any DTPA claims.

Elapsed Time

Compared to other states, Texas has a streamlined non-judicial foreclosure process that is nearly as quick as an eviction. The minimum amount of time from the first notice to the day of foreclosure is 41 days, unless the deed of trust is a FNMA form, in which case the time is 51 days, although it is never wise to cut these deadlines that close. Why risk a void sale or give the borrower a possible wrongful foreclosure claim?

The advantage of a foreclosure over an eviction is that there are no effective defenses to the foreclosure process except for the borrower to block it with a temporary restraining order or file bankruptcy. For either option, the buyer needs money and probably an attorney.

Deficiency Suits

In the event that proceeds of the foreclosure sale exceed the amount due on the note (including attorney’s fees and expenses), then surplus funds must be distributed to the borrower. More often, however, the price at which the property is sold is less than the unpaid balance on the loan, resulting in a deficiency. A suit may be brought by the lender to recover this deficiency any time within two years of the date of foreclosure. Tex. Prop. Code § 51.003. Federally insured lenders have four years. As part of a defense to a deficiency suit, the borrower may challenge the foreclosure sales price if it is below fair market value, and receive appropriate credit if it is not. Any money received by a lender from private mortgage insurance is credited to the account of the borrower. One case states that the purpose of this “is to prevent mortgagees from recovering more than their due.”

For borrowers, deficiencies can be as significant a loss as the foreclosure itself since the IRS deems the deficiency amount to be taxable ordinary income.

Servicemembers Civil Relief Act

The Servicemembers Civil Relief Act (“SCRA”), 50 U.S.C. app. § 501, which was passed in 2003 completely rewrites the existing 1940 law by expanding protections for those serving in the armed forces. Except by court order, a landlord may not evict a servicemember or dependents from the homestead during military service. The SCRA provides criminal sanctions for persons who knowingly violate its provisions.

Right of Redemption

There is no general right of redemption by a borrower after a Texas foreclosure. The right of redemption is limited to:

(1) Sale for unpaid taxes. After foreclosure for unpaid taxes, the former owner of homestead or agricultural property has a two-year right of redemption (Tax Code section 34.21a). The investor is entitled to a redemption premium of 25% in the first year and 50% in the second year of the redemption period, plus recovery of certain costs that include property insurance and repairs or improvements required by code, ordinance, or a lease in effect on the date of sale. For other types of property (i.e., nonhomestead), the redemption period is 180 days and the redemption premium is limited to 25%.(2) HOA foreclosure of an assessment lien. Prop. Code section 209.011 provides that a homeowner may redeem the property until no “later than the 180th day after the date the association mails written notice of the sale to the owner and the lienholder under section 209.101.” A lienholder also has a right of redemption in these circumstances “before 90 days after the date the association mails written notice . . . and only if the lot owner has not previously redeemed.” These provisions are part of the Texas Residential Property Owners Protection Act designed to reign in the once arbitrary power of HOAs (Chapter 209 of the Code). Note that an HOA is not permitted to foreclose on a homeowner if its lien is solely for fines assessed by the association or attorney fees.

An investor should be prepared to hold the property and avoid either making substantial improvements to it or reselling it until after any applicable rights of redemption have expired.

Postforeclosure Eviction

Foreclosure gives the new owner title; the next step is to obtain possession, and the procedure for doing this is outlined in the previous chapter. It is generally necessary to give the usual 3-day notice to vacate and file a forcible detainer petition in justice court. After judgment, the new owner must wait until the constable posts a 48 hour notice on the door and then forcibly removes a former borrower if that person is otherwise unwilling to leave.

An investor should build eviction costs into the budget from the beginning. It is advisable to hire an attorney for the first couple of evictions, after which an investor will likely be prepared to handle them solo. Never, however, attempt to conduct an eviction appeal to county court without an attorney.

As discussed in the chapter on evictions, there are both state and federal protections for tenants. Both Property Code section 24.005(b) and the federal Protecting Tenants at Foreclosure Act of 2009 require at least 90 days’ notice to vacate so long as a tenant continues to pay rent.

Stopping a Foreclosure Sale

It is a myth that lawyers can wave a wand and, with a phone call or nasty letter, stop foreclosure. Attorneys have no such power. It is a fact that foreclosure can be stopped, but the only sure way to do so is to file a lawsuit and successfully persuade a judge to issue a temporary restraining order prior to the foreclosure sale. After the sale occurs, the remedy that remains–a suit for wrongful foreclosure–is slightly different. Relief may be limited to a money judgment if the property was sold at foreclosure to a third party for cash (a bona fide purchaser or “BFP”). If a BFP is in the mix, the possibility that the property itself can be recovered by the borrower is near zero.

Clients will often report that they have been engaged in reinstatement negotiations with the lender, usually consisting of numerous phone calls and messages, and ask if that is sufficient to avoid a scheduled foreclosure. The answer is a resounding no. Unless there is payment of the arrearage and a signed reinstatement agreement, the foreclosure will almost certainly go forward, even if the client was talking settlement with the lender just the day before. Note that reinstatement agreements must be in writing and signed by both parties. Phone calls mean nothing in this business.

Clients will sometimes state that they don’t want to sue the lender; they just want to get a restraining order to stop the foreclosure. The lawyer must reply “Sorry, it doesn’t work that way, you can’t split the two.” A restraining order is an ancillary form of relief, meaning that it arises from an underlying suit. In other words, there must be an actual lawsuit in place to provide a basis for requesting a TRO. Fortunately, the suit and application for the TRO can be filed simultaneously and a hearing obtained usually within a day.

There is an additional issue: a borrower must have grounds for legal action or possibly face penalties for filing a frivolous suit. Some clients have difficulty understanding this. “Why,” they ask, “can’t you just go and get a TRO for me?” The answer is that the lawyer must give the judge at least some credible basis for granting equitable relief.

So why don’t more people sue to stop a foreclosure? Money. A person in financial distress will have difficulty coming up with cash. Here is the blunt truth: if a borrower or investor cannot readily write a substantial retainer check to an attorney for purposes of suing a lender, then that person has no business in the expensive world of litigation.

Wrongful Foreclosure Suits

After the sale, a suit for wrongful foreclosure can be filed if there are grounds for alleging that the loan documents (e.g., the note and deed of trust) were defective in some way; if the notices leading up to the foreclosure were done incorrectly; or if there was some alleged impropriety in the sale itself. Note that there is no requirement that the sales price be fair. A sale cannot be set aside because the consideration paid is allegedly inadequate because it is less than market value. Sauceda v. GMAC Mortg. Corp., 268 S.W.3d 135, 139 (Tex. App.–Corpus Christi 2008, no pet.). To prevail in a wrongful foreclosure suit based on inadequate sale price, three elements must be proven: (1) grossly inadequate consideration; (2) defective foreclosure notices or sale; and (3) a causal connection between the defect and the inadequate consideration. If the notices and sale were correctly done, then the sale will be valid even though the sales price was lower than market value.

As a general rule, it is far better for a borrower to obtain a restraining order to stop a foreclosure than it is to bring suit after the fact. Texas law favors the finality of foreclosures, making wrongful foreclosure suits an uphill battle. If the property was sold to a third party who has no knowledge of any claims or alleged defects there is little chance that the borrower will get the property back. The third party is a protected BFP, and any remedy for the borrower will therefore likely be limited to monetary damages. Bottom line? If in doubt about whether or not a foreclosure is going to occur, file suit and attempt to get a temporary restraining order to stop it. “Wait and see” is the worst possible strategy in this case, since it is always more difficult to correct the situation after the foreclosure sale has occurred. The judge will likely ask without much sympathy, “Why, since you knew about these various alleged defects, did you not take action to stop the foreclosure?”

If a wrongful foreclosure suit is being considered, it should be filed quickly so that notice of the suit (a notice of lis pendens) can be filed in the real property records. If the lender was the successful bidder, this notice may effectively prevent the lender from transferring the property to a BFP.

Note that the action available under Property Code section 51.004 (discussed above) is different from a wrongful foreclosure remedy per se. Relief is granted if the court finds that the fair market value is greater than the sale price, but only in the context of a deficiency claimed by the lender.

The cruel fact for borrowers is that wrongful foreclosure suits face challenges from the beginning. Is that fair? You decide. It is, however, undoubtedly the bias of Texas judges, whether one approves or not.

A plaintiff can realistically expect the following in a wrongful foreclosure lawsuit: (1) The lender will not rush to settle, since lenders pay high fees to large litigation firms to fight tooth and nail to avoid doing the right thing; (2) written discovery (interrogatories, requests for production, and requests for admission) from the plaintiff will be nearly entirely objected to by lender’s counsel, so extensively as to make the responses essentially useless (a deposition will therefore be required); (3) lender’s counsel will remove the case from state court to federal court where judges are more conservative and lenders can use Federal Rule 12(b)(6) to dismiss the case. This rule permits dismissal if the borrower’s complaint fails “to state a claim upon which relief can be granted,” which happens more often than one might think. A change of courts can also create complications for the attorney representing the borrower, who may be accustomed to practicing in state rather than federal court. The attorney may be an experienced state court lawyer, but may not even be licensed in federal court. This is common as federal practice becomes more of a specialty among lawyers.

Prolonged Negotiations for a Modification

Homeowners often report that they were engaged in prolonged negotiations to modify their existing loan prior to the foreclosure sale. Of course, these communications were conducted by phone and there is no signed written agreement binding the lender to stop the sale, so there is likely no basis for a wrongful foreclosure suit. Do lenders pursue this strategy intentionally, so as to make it appear that they are willing to be reasonable, when in fact it is in their interest to foreclose instead? Opinions vary.

If you find yourself in an unfortunate situation of losing or about to your home to wrongful fraudulent foreclosure, visit: http://www.fightforeclosure.net

How Homeowners Can Spot Fraudulent Mortgage Documents

02 Monday Dec 2013

Posted by in Affirmative Defenses, Fraud, Judicial States, Non-Judicial States, Pro Se Litigation, Trial Strategies, Your Legal Rights

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This post is designed to assist struggling homeowners who find themselves in an unfortunate situation of wrongful foreclosure by illegal entities who are foreclosing without legitimate documents. Most securitized loans are being wrongfully foreclosed by entities who does not have any interest in the properties they are foreclosing.

If MERS is listed on your Deed of Trust there’s a better chance than not that there is fraud involved in your mortgage documents. MERS was used by the Wall Street Banks to avoid paying county recorder fees and real estate transfer tax fees.   You will need to visit your County Recorder’s office to obtain copies of all of your real property records from the first filing on your current loan up to today.

1.     The Mortgage or Deed of Trust is assigned from the Originator directly to the Trustee for the Securitized Trust.

2.     The Mortgage or Deed of Trust is assigned months and sometimes years after the date of the origination of the underlying mortgage note.

3.     The Mortgage or Deed of Trust is assigned from the initial aggregator directly to the Securitized Trust with no assignments to the Depositor or the Sponsor for the Trust.

4.     The Mortgage or Deed of Trust is executed, dated or assigned in a manner inconsistent with the mandatory governing rules of Section 2.01 of the Pooling and Servicing Agreement.

5.     The assignment of the Mortgage or Deed of Trust is executed by a legal entity that was no longer in existence on the date the document was executed.

6.     The assignment of the mortgage or Deed of Trust is executed by an entity whose name is different than the entity named in the original document (i.e., National City Bank Corporation in lieu of ABC Corporation as a division of National City Bank).

7.     The assignment was executed by a party pursuant to a Power of Attorney but no Power of Attorney is attached to the instrument or filed with the instrument or otherwise recorded with local land registry.

8.     The mortgage note is allegedly transferred in a single document along with the Mortgage or Deed of Trust (i.e., “Assignment of the Note and Mortgage”).  You cannot “assign” a mortgage note.  You can only “negotiate” a mortgage note under Article 3 of the UCC.

9.     The assignment is executed by a party who claims to be an “attorney in fact” for the assignor.

10.    The assignment is notarized by a notary in Dakota County, Minnesota.

11.    The assignment is notarized by a notary in Hennepin County, Minnesota.

12.    The assignment is notarized by a notary in Duval County, Florida.

13.    The assignment is executed by an officer or secretary of MERS.

14.    The assignment is notarized by a secretary or paralegal employed by the attorney for the mortgage servicer.

15.    The assignment is executed or notarized by an employee of MR Default Services, Promiss Solutions LLC, National Default Exchange, LP, LOGS Financial Services, or some similar third-party.

16.    The endorsement on the note is actually on an allonge affixed to the note.  In most states, an allonge cannot be used if there is a sufficient amount of room at the “foot” or the “bottom” of the original note for the endorsement.

17.    The allonge is not “permanently” affixed to the original note. The term permanent excludes the use of staples and tape and as a result you must use a sold fastener such as glue.  Allonges are commonly referred to “in the business” as “tear-off fraud papers.”

18.    The note proffered in evidence is not the original but a copy of the “certified copy” provided to the debtors at the closing.

19.    The note is endorsed in blank with no transfer and delivery receipts.  It is fine to endorse a note in blank, in which case it becomes “bearer” paper under the UCC.  However, in order to prove a true sale from the Sponsor to the Depositor you must have written delivery and transfer receipts and proof of pay outs and pay in transactions.

20.    The note proffered in evidence is not endorsed at the foot of the note or on an affixed allonge.

21.    The assignment of the mortgage or deed of trust post-dates the filing of the court pleading.

22.    The assignment of the mortgage or deed of trust is executed after the filing of the court pleadings but claims to be “legally effective” before the filing.  For example, the deed of trust is assigned on June 1, 2009, with an effective date of May 1, 2007.

23.    The parties who executed the assignment and who notarized the signature are in fact the same parties.

24.    The signor states that he or she is an “agent” for the executing entity.

25.    The signor states that he or she is an “attorney in fact” for the executing entity.

26.    The signor states that he or she is an employee of the executing entity but claims to have custody and control of the records of the entity.

27.    The signor of the document makes statements about the status of the mortgage debt based on his or her review of the “records of the plaintiff” or the “records of the moving party.”

28.    The proponent of the original note files an Affidavit of Lost Note.

29.    The signor claims that the allegations in the court pleading are correct but the assignment of the mortgage and/or delivery and transfer of the note occurs after the law suit or the motion for relief from stay was filed.

30.    One or more of the operative documents in the case is signed by one of the attorneys for the mortgage servicer.

31.    The default payment history filed in the case is prepared by the attorney for the mortgage servicer or a member of his or her staff.

32.    The affidavit filed in support of legal fees is not signed by an attorney with the firm involved in the case.

33.    The name of one or more of the signors is stamped on the document.

34.    The document is a form with standard “fill-in-the-blanks” for names and amounts.

35.    The signature of one or more parties on the document is not legible and looks like something a three year old might have done.

36.    The document is dated and signed years before the document is actually filed with the register of real estate documents or deeds or mortgages.

37.    The proffered document has the word C O P Y stamped on or embedded in the document.

38.    The document is executed by a notary in Denton County, Texas.

39.    The document is executed by a notary in Collin County, Texas.

40.    The document includes a legend “Hold for” a named law firm after recording.

41.    The document was drafted by a law firm representing the mortgage servicer in the pending case.

42.    The document includes any type of bar code that was not added by the local register or filing clerk for such instruments.

43.    The document includes a reference to an “instrument number.”

44.    The document includes a reference to a “form number.”

45.    The document does not include any reference to a Master Document Custodian.

46.    The document is not authenticated by any officer or authorized agent of a Master Document Custodian.

47.    The paragraph numbers on the document are not consistent (the last paragraph on page one is 7 and the first paragraph on page two starts with number 9).

48.    The endorsement of the note is not at the “foot” or “bottom” of the last page of the note.  For example, a few states allow an endorsement on the back of the last page of the note but the majority requires it at the foot of the note.

49.    The document purports to assign the mortgage or the deed of trust to the Trustee for the Securitized Trust before the Trust was registered with the Securities and Exchange Commission.  This type of registration is normally referred to as a “shelf registration.”

50.    The document purports to transfer the note to the Trustee for the Securitized Trust before the date the Trust provides for the origination date of instruments in the Trust.  The Prospectus, the Prospectus Supplement and the Pooling and Servicing Agreement will clearly state that the pool of notes includes those originated between date X and date Y.

51.    The document purports to transfer the note to the Trustee for the Securitized Trust after the cut-off date for the creating of such instruments for the Trust.

52.    The origination date on the mortgage note is not within the origination and cut-off dates provided for the by terms of the Pooling and Servicing Agreement.

53.    The “Affidavit of a Lost Note” is not filed by the Master Document Custodian for the Trust but by the Servicer or some other third-party.

54.    The document is signed by a “bank officer” without any designation of the office held by the said officer.

55.    The affidavit includes the following language on the bottom of each page:  ”This is an attempt to collect a debt.  Any information obtained will be used for that purpose.”

56.    The document is signed by a person who identifies himself or herself as a “media supervisor” for the proponent.

57.    The document is signed by a person who identifies himself or herself as a “media coordinator” for the proponent.

58.    The document is signed by a person who identifies himself or herself as a “legal coordinator” for the movant.

59.    The date of the signature on the document and the date the signature was notarized are not the same.

60.    The parties who signed the assignment and who notarized the signature are located in different states or counties.

61.    The transferor and the transferee have the same physical address including the same street and post office box numbers.

62.    The assignor and the assignee have the same physical address including the same street and post office box numbers.

63.    The signor of the document states that he or she is acting “solely as nominee” for some other party.

64.    The document refers to a power of attorney but no power of attorney is attached.

65.    The document bears the following legend:  ”This is not a certified copy.”

66.    The document is signed by:  (these are just a few names, do site search from more robo-signers)

Jose Aguilar

Joseph Alvarado

Felix Amenumey

Natalie Anderson

Pam Anderson

Scott Anderson or by Scott W. Anderson

Pamela Ariano

Leticia Arias

Chris Arndt

Aimee Austin

Gina  Avila

Katrina Bailey

Fern Baker

Janice M. Baker

Lorraine Balara

Steve Ballman

Steve Bashmakov

Michael Bender

Jamie Bilot

Marnessa Birckett

Sarah Block

Janette Boatman

Michele Boiko

Sheri Bongaarts

Beth Borse

Christie Bouchard

Diane Bowser

Christopher Bray

Tammy Brooks-Saleh or Tammy Saleh

Sandy Broughton

Jenny Brouwer

Jacqueline Brown

Paul Bruha

Lins Bryce

Rita Bucolo

Judy Buseman

Butler & Hosch, P.A.

Becky Byrne

Rodney Cadwell

Robin Callahan

Carolyn Cari

Jeffrey P. Carlson

Nancy L. Carlson

Richard J. Carlson

Robin Carmody

Marvell Carmouche

Amy Jo Cauthern-Munoz

Kristi M. Caya

Kim Chambers

Carol Chapman

Keith Chapman

Hari Charagundla

Debra Chieffe

Christina Ching

Dave Chiodo

Jim Clark

Tara Clayton

John Cody

Robyn Colburn

Rebecca Colgan

Karen Cook

Frank Coon

Julie Coon

Julie Cordova

Jeremy Cox

Cathy Crawford

Kevin Crecco

Dave Cunningham

Michael Curry

Nanci Danekar

Amie Davis

Vickie Day

Yvette Day

Teresa DeBaker

Jody Delfs

Richard Delgado

Mike Dian

Dulce Diaz

Larry Dingmann

Kathleen Doherty

Jason Dreher

Jennifer Duncan

Kimbretta Duncan

Ronald Durant

Neil E. Dyson

Shirley Eads

Salena Edwards

Judy Faber

Sue Filiczkowski

Donna Fitton

Sean Flanagan

Angela L. Freckman

Verdine A. Freeman

Eric Friedman

Fedelis Fondungallah

Barb Frost

LeAllen Frost

Fanessa Fuller

Laura Furrick

Sarah Gacek

Judi Gambrel

Elizabeth Geretschlaeger

Peggy Glass

Dory or Dorey Goebel

Alma Gonzales

Eileen J. Gonzales

Kathleen Gowan

Kelly Graham

Steven Y. Green

Steven Grout

Cathy Hagstrom

Michelle Halyard

Craig Hanlon

Michael Hanna

Donna Harkness

Michael Hebling

Renee L. Hensley

May Her

Jim Herman

Laura Hescott

Dave Hillen

Joseph P. Hillery

Craig Hinson

Bob Hora

Teddi Horan

Robert L. Horn

Chrys Houston

JK Huey

Paul Hunt

Vickie Ingamells

Cassandra Inouye

Andrea Jenkins

Ashley Johnson

Mary B. Johnson

Janet Jones

Tina Jones

Peggy Jordon

Etsuko Kabeya

Jamil Kahin

Robert E. Kaltenbach

Pam Kammerer

Gloria Karau

Vishal Karingada

Rhonda Kastli

Andrew Keardy

Patricia Kelleher

Scott Keller

Bryan Kerr

John Kerr

Kim Kinney

Sandy Kinnunen

LeeAnne Kramer

Mutru Kumar

Martha Kunkle

Margie Kwaitanowski

Vicki Kyle

Sukhada Lad

Brian J. LaForest

Diane LaFrance

Patricia Lambengco

Kyurstina Lawton

Toccoa Lenair

Bharati Lengade

Lindsey Lesch

Whitney Lewis

Marie Lockwood

Stephanie Lowe

Todd Luckey

Michele Luszcz

Joseph Lutz

Hang Luu

Frank Madden

Lisa Magnuson

William Maguire

Michael G. Mand

Silvia Marchan

Charmaine Marchesi

Brock Martin

Joel Martinson

Denise A. Marvel

Mary Maxwell

Christopher Mayall

Patrick McClain

Mary McGrath

Hattie McLaughlin

Noel McNally

Donna McNaught

Michael Mead

Marcia Medley

Susan Meier

Marisa Menza

Pamela Michael

Linda Miller

Steve Moe

Nancy Mooney

Joanne Moore

Melody Moore

Taylor Moore

Ruth Morgan

Michael H. Moreland

Treva Moreland

Annmarie Morrison

Melissa Mosloski

Kim Mullins

Patricia Murray

Ginny Neidert

Steve A. Nielsen

Susan Nightingale

Colleen O’Donnell

Richard Olasande

Mitchell Oringer

Clothilde Ortega

Amy Payment

Dawn Peck

Bonnie Pelletier

Patte Peloquin

Joseph Pensabene

Kenneth R. Perkins

Jennifer Peters

Charity Peterson

Joyce Petty

Ann Pinto

Ingrid Pittman

Bernadette Polux

Tamara Price

Erika Puentes

Beverly Quaresima

Shivani L. Ram

Antonia Ramirez

Rona Ramos

Myron Ravelo

Peter Read

Keith S. Reno

Anthony N. Renzi

Dawn L. Reynolds

Jeff Rivas

Jose Rivera

Bill Rizzo

Paula Rosato

Margery A. Rotundo

Sarah Rubin or Sara Rubin

Paige Sahr

Tammy Saleh

Kendall Sanders

Cindy Sandoval

Dianna Sandoval

Kimberly Sanford

Josephine Sciarrino

Stephanie Scott

Jenee Simon

Laura Siess

Gregory Smallwood

Rosalie Solano

Erika Spencer

Joseph Spicer

Renae Stanton

Jeffrey Stephan

Maya Stevenson

Richard Stires

Judith Stone

September Stoudemire

Roy Stringfellow

Anne Sutcliffe

Rachel Switzer

Emmanuel Tabot

Mary Taylor

Varsha Thakkar

Bernice Thell

Keith Torok

Deb Twining

Kenneth Ugwuadu

R.P. Umali

Keo Maney Kue Vang

Jason Vecchio

Rebecca Verdeja

Vinod Vishwakarma

Fifi Volgarakis

Janet Vollmer

Kim Waldroff

Linda Walton

Lisa Watson

John Wesley

Katrina Whitfield-Bailey or by Katrina Whitfield or by Katrina Bailey

Joanne Wight

Cathy Williams

Paul Williams

Kristine Wilson

Mary Winbauer

Rebecca Wirtz

Danielle Woods

Janine Yamoah

Jerry Yang

Elizabeth Yeranosian

Mellisa Ziertman

Jan Zimmerman

Stephen Zindler

Katie Zrust

If you find yourself in an unfortunate situation of losing or about to your home to wrongful fraudulent 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
————————–

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

Judicial Versus Non-Judicial Foreclosure

31 Thursday Oct 2013

Posted by in Foreclosure Crisis, Foreclosure Defense, Judicial States, Non-Judicial States, Note - Deed of Trust - Mortgage, Pro Se Litigation, Your Legal Rights

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Foreclosure-Process2-1024x791

In many discussions about mortgage foreclosures the terms
judicial and non-judicial foreclosure are used. They involve very different processes. These terms refer to how individual states handle real estate foreclosure. Under both systems, time frames and terms vary widely from state to state. The following is a brief, general description of both
processes. The accompanying chart (see last page) depicts the varying time frames involved in the judicial foreclosure process.

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Judicial Foreclosures

A judicial foreclosure is a court proceeding that begins when the lender files a complaint and records a notice in the public land records announcing a claim on the property to potential buyers, creditors and other interested parties. The complaint describes the debt, the borrower’s default and the amount owed. The complaint asks the court to allow the lender to foreclose its lien and take possession of the property as a remedy for non-payment.

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The homeowner is served notice of the complaint, either by mail, direct service or publication of the notice. The defendant (borrower) is permitted to dispute the facts (such as show that payments were made), offer defenses or present counterclaims by answering the complaint, filing a separate suit, and/or by attending a hearing arranged by the court. If the defendant shows there are differences of material facts, a trial will be held by the court to determine if foreclosure should occur. In the vast
majority of cases, however, the foreclosure action is undisputed because the borrower is in default and cannot offer facts to the contrary. If the court determines the homeowner did default and that the debt is valid, it will issue a judgment in favor of the servicer for the total amount owed, including costs for the foreclosure process. In order for the judge to determine the amount of the judgment, the servicer submits paperwork through an affidavit that itemizes the amounts due.

Twenty two states use judicial procedures as the primary way to foreclose.
These include: Connecticut, Delaware, Florida, Hawaii, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, New Jersey, New Mexico, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Vermont and Wisconsin.

In all other states, foreclosure is usually handled by attorneys who follow a state-provided process. In the mortgage documents, borrowers give lenders the “power of sale” outside of judicial process in the event of an uncured default. Documentation or affidavit issues are not common in these states because of the non-judicial nature of the process.

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Next, the court will authorize a sheriff’s sale. The sale is an auction of the property open to anyone, and must be held in a public place. Procedures for a sheriff’s sale in each locality differ, but the individual with the highest bid is granted the property. After the sale is confirmed by the court, the deed, which transfers ownership, is prepared, recorded and the highest bidder becomes the owner of the property.

In most cases, the highest bidder is the servicer, who takes title of the property. The servicer then can sell the property. At this point, it is called
real estate owned (REO).

Visio-foreclosure timeline.vsd
Non-Judicial Foreclosures

The requirements for non-judicial foreclosure are established by state statute; there is no court intervention. When the default occurs, the homeowner is mailed a default letter and in many states a
Notice of Default is recorded, at or about the same time. The homeowner may cure the debt during a prescribed period; if not, a Notice of Sale is mailed to the homeowner, posted in public places, recorded
at the county’s recorder’s office, and published in area newspapers
/legal publications. When the legally required notice period (determined by each state) has expired, a public auction is held and the highest
bidder becomes the owner of the property, subject to recordation of the deed. Prior to the sale, if the borrower disagrees with the facts of the case, he or she can try to file a lawsuit to enjoin the trustee’s sale.

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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

Why Michigan Packaged Foreclosure Laws Were Designed to Harm Home Owners

28 Saturday Sep 2013

Posted by in Case Study, Foreclosure Crisis, Foreclosure Defense, Judicial States, Loan Modification, Mortgage Laws, Non-Judicial States, Pro Se Litigation, Your Legal Rights

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The package of bills (HB 4765, HB4766, SB 380 and SB383) which has since been signed into Law on July 3rd by Michigan‘s Governor is designed to harm homeowners on both the front end and the back end of the foreclosure process by repealing Michigan’s pre-foreclosure negotiation law and by making it possible for banks to eliminate Michigan’s longstanding 6-month redemption period.

By repealing Michigan’s pre-foreclosure negotiation law, homeowners are forced into an increasingly vulnerable position of falling victim to widespread foreclosure scams.  Under the new policy, lender-designated agents are no longer required to meet with homeowners to avoid a foreclosure, and any person regardless of their qualifications can perform the role of a certified foreclosure counselor or legal aid attorney.

According to Detroit Free Press, by eliminating Michigan’s longstanding 6-month redemption period, at-risk homeowners could lose their homes immediately if the bank chooses to evict them.

“This means if a homeowner facing foreclosure has a leaky roof and the bank determines that it has the potential to do ‘imminent’ damage, the homeowner loses the redemption period and along with it, the chance to challenge an illegal or fraudulent foreclosure, come up with the money to save the home, sell it on a short sale or find a safe affordable new place to live. Instead they face immediate eviction.”

Because the laws definition of ‘damage’ is both broad and ambiguous, if the bank finds so much as a broken hinge or a closed off window, they could immediately move to evict the homeowner.  As outlined in SB 383, a bank representative has the authority to stop by a home unannounced to inspect both the exterior and interior of the home for any possible damages, and if denied access by the homeowner, the bank has license to disregard the redemption period and repossess the property immediately.

SEE DETAILS OF THE NEW LAW

NEWS ALERT: Michigan Governor Signs Foreclosure Bills HB 4765, HB 4766, SB 380, and SB 383

The following four Bills affecting Michigan’s non-judicial foreclosure process were signed into law by the Governor on July 3rd.

HB 4765

House Bill 4765 extends the sunset date for MCL §§ 600.3205a-3205d of the Michigan non-judicial foreclosure statute to January 9, 2014. Previously set to expire on June 30, 2013, these sections of the statute include the mandatory 90-day hold requiring loan modification mediations to occur prior to the commencement of non-judicial foreclosure actions of homestead properties where mortgagors “opt-in”. The requirements set forth in MCL §§ 600.3205a-3205d will have to be complied with through June 30, 2014, in regard to any non-judicial foreclosures for which the notice was published prior to January 10, 2014.

SB 380 and HB 4766

Senate Bill 380 and House Bill 4766 create MCL § 600.3206, which was designed to replace the current sections of the Michigan non-judicial foreclosure statute that dictate when mandatory mediations aimed at modifying loans are to occur. Effective January 10, 2014, if the servicer has signed a consent judgment in United States of America, et al. v. Bank of America Corp., et al., then that servicer will be required to send notice (similar to Michigan’s current pre-foreclosure mediation notice) to the mortgagor, allowing the mortgagor the opportunity to “opt-in” to a loan workout meeting prior to commencement of foreclosure proceedings.  Servicers that are not parties to the consent judgment will no longer be required to postpone commencement of non-judicial foreclosures to allow for mediations to occur on homestead properties where mortgagors “opt-in.”

SB 383

Senate Bill 383 adds a provision to MCL § 600.3240, which is the section of Michigan’s non-judicial foreclosure statute dictating post-sale redemption periods. This new provision grants the foreclosure sale purchaser the right to inspect the exterior and interior of the structures after the foreclosure sale as well as periodically during the redemption period. If inspection is unreasonably refused or property damage has occurred or is believed to be imminent, the purchaser may immediately commence summary proceedings to obtain possession of the property. The statute provides examples of what would be considered damage, which include failure to comply with local property maintenance ordinances, broken doors and windows, accumulated trash, stripped plumbing, etc. If a judgment for possession is granted in favor of the purchaser, the redemption period will be extinguished. These changes become effective January 10, 2014.

If you find yourself in an unfortunate situation of losing or about to your home to wrongful fraudulent foreclosure, visit: http://www.fightforeclosure.net

Constitutional Rights of Florida Citizens Violated By Florida House Bill 87

28 Saturday Sep 2013

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

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Representatives Kathleen Passidomo (District 106, Collier County) and George Moraitis, Jr. (District 93, Broward County) have supported the passing of House Bill 87, which denies residents the right to take their homes back after a wrongful foreclose.

According to House Bill 87, if a bank forecloses on a property, and if it is later discovered that the bank did not have standing to foreclose or that it was the incorrect bank with no beneficial interest in the loan, then the only available option to the homeowner is to sue for damages. The homeowner will no longer be afforded the opportunity to get his or her home back from the bank once the foreclosure has been finalized.

The people of Florida are demanding that proposed House Bill 87 not be allowed to pass into law in any form. The Bill is deemed unconstitutional because it violates Article 1, Sections 9 and 10 of Florida’s Constitution, which states that it is unlawful to pass any law or any Judicial and/or Executive Branch process which deprives any person of life, liberty or property without due process of law, and it prohibits the passing of any law that impairs the obligations of contracts.

If House Bill 87 is not killed, constituents and citizens of Florida, and any Florida property owner, will lose their individual property and due process rights. The “Kill House Bill 87” petition states:

“The people demand that House Bill 87 be voted down and not passed into law, as the proposed Bill is no more than another brazen attempt to further deprive U.S. citizens of their constitutional rights to due process of law in Florida’s courts, and will be used as a stepping stone to change the State of Florida into a non-judicial foreclosure state.”

The petition’s current goal is to gather 2,000 signatures. If you would like to support the voting down of the unconstitutional House Bill 87, then please sign the petition below.

To sign the petition please click here: http://petitions.moveon.org/sign/kill-house-bill-87?source=s.icn.em.mt&r_by=7041070

Fightforeclosure.net supports the people’s petition to eradicate House Bill 87. If you have been a victim of wrongful foreclosure and need help in saving your home from fraudulent foreclosure visit: http://www.fightforeclosure.net

Nevada Foreclosure Rate Tops U.S. Again

25 Wednesday Sep 2013

Posted by in Affirmative Defenses, Foreclosure Crisis, Non-Judicial States, Pro Se Litigation, Your Legal Rights

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Last month Nevada once again secured the top spot as the state with the nation’s highest foreclosure rate due to spikes in default notices and scheduled foreclosure auctions.

According to a report by the Irvine-based real estate analytics company, RealtyTrac, in August one out of every 359 Nevada housing units was the subject of a new foreclosure filing.  This number reflects more than two-and-a-half times the national average.

RealtyTrac defines foreclosure filings as:

“Including notices of default, notices of pending trustee sales and repossessions by banks.”

Additionally, RealityTrac stated that last month with one filing for every 323 housing units, Las Vegas was ranked third for the nation’s highest foreclosure rate among large metropolitan areas. Nevada’s foreclosure filings have increased over 100 percent compared to the previous month and nearly 11 percent percent over August 2012, due to the 226 percent increase in default notices and a 96 percent jump in scheduled foreclosure auctions compared with July.

RealtyTrac Vice President Daren Blomquist attempts to explain the recent jump in Nevada foreclosures saying:

“The foreclosure floodwaters have receded in most parts of the country, but lenders and communities continue to clean up the damage left behind, which means the recent uptick in bank repossessions is a trend that will likely continue into next year,” he said. “Meanwhile foreclosure flash floods will continue to hit some markets over the next few months as delayed foreclosure starts are quickly pushed into the pipeline.

Another explanation for Nevada’s increase in foreclosures is due to the possibility that bankers have identified how to operate under the new Assembly Bill 300 law that is supposed to make it easier for banks to seize homes from delinquent borrowers.

Under AB300, a bank’s affidavit no longer has to be based on personal knowledge of a home’s mortgage-document history before they foreclose. Instead, the bank’s affidavit can be founded on an assessment of internal lending records and either title paperwork or filings with the local county recorder.

For More Information on How To Effectively Challenge Your Lender/Bank In Order to Save Your Home Even If Foreclosure has taken place, Visit: http://www.fightforeclosure.net

A Guide to California Homeowners Defending Post-Foreclosure Evictions

24 Saturday Aug 2013

Posted by in Affirmative Defenses, Federal Court, Foreclosure Defense, Judicial States, Landlord and Tenant, Non-Judicial States, Pro Se Litigation, State Court, Your Legal Rights

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Elements of a Post-foreclosure Eviction
– Notice Requirements
– Compliance with CC 2924
– Present Right to Possession
Unlawful Detainer Litigation

Notice Requirements

Former Borrowers v. Tenants

– Former borrowers
3 days’ notice
– Tenants
90 days’ notice (in most cases)

Protecting Tenants at Foreclosure Act (Section 702)

– All bona fide tenants
Must be given at least 90 days’ notice
– Bona fide tenants with more than 90 days remaining on lease
Entitled to stay until the end of the lease, if lease entered into before “notice of foreclosure”

– EXCEPTION: lease may be terminated with a 90-day notice if purchaser will occupy unit as primary residence or if lease terminable at will under state law

Bona Fide Tenancy (PTFA)

A lease or tenancy is bona fide only if:
– Tenant is not the mortgagor or the mortgagor’s child, spouse, or parent; and
– Lease was the result of an arms length transaction; and
– Rent is not substantially less than fair market rent (unless the reduction is due to governmental subsidy)

HCV (Section 8) Tenants

– Section 8 tenants are deemed to be bona fide tenants. 74 Fed. Reg. 30108
– New owner takes title subject to both the Section 8 lease and the HAP contract

– EXCEPTION: Lease may be terminated with a 90 day notice if new owner will occupy unit as primary residence
– Any eviction notices must also be sent to the Housing Authority. 24 CFR 982.310(e)(2)(ii).

State Law Notice Requirements

CCP 1161b
– 60-day notice requirement for all tenants
– AB 2610 (effective 1/1/13):
– 90-day notice requirement for all tenants
– lease protections
– CCP 1161c
– Cover sheet requirement for post-foreclosure eviction notices

Service of Notice

Cal. law (CCP 1162):
– Personal service;
– Substitute service; or
– Posting and mail
– Does actual receipt cure service defects?
– Compare Valov v. Tank (1985) 168 CA3d 867 with Culver Ctr. Partners E #1 LP v. Baja Fresh Westlake Village, Inc. (2010) 185 CA4th 744

3/60/90 Day Notices

– Invalid? Alta Cmty. Invs. III v. Ottoboni, No. 1370195 (Cal. Super. Ct. July 29, 2010) (holding that 3/30/60/90 day notice is fatally ambiguous)

Post-FC Evictions in Just-Cause Jurisdictions

Just cause for eviction required
– Nonpayment of Rent
– 90-day notice required? PNMAC Mortg. v. Stanko, No. 11U04495, 2012 WL 845508 (Los Angeles, Cal. Super. Ct. Mar. 7, 2012) (yes)
– AB 1953 (effective 1/1/13):
– Cannot demand rent accrued before compliance with CC 1962
– Breach of Lease
– 90-day notice required?

Compliance with CC 2924

CCP 1161a

A person who holds over . . . may be removed therefrom as prescribed in this chapter:
– (3) Where the property has been sold in accordance with Section 2924 of the Civil Code, under a power of sale contained in a deed of trust executed by such person, or a person under whom such person claims, and the title under the sale has been duly perfected.
“Title” issues may be litigated in post-foreclosure UDs
– Malkoskie v. Option One Mortg. Corp., 188 Cal. App. 4th 968 (2010)

Properly Conducted Sale

Trustee must have authority to conduct sale
– Wells Fargo Bank, N.A. v. Detelder-Collins, No. APP10000325 (Riverside Super. Ct. App. Div. Mar. 28, 2012) (UD judgment reversed because plaintiff failed to provide substitution of trustee to show that trustee had authority to conduct sale)
Sale void if conducted in breach of loan mod.
– Barroso v. Ocwen Loan Servicing, LLC, 208 Cal. App. 4th 1001 (2012) (permanent modification)

Failure to provide proper foreclosure notices
– JP Morgan Chase v. Callandra, No. 1371026 (Cal. Super. Ct., Santa Barbara Co. Oct. 21, 2010) (tenant may challenge foreclosure based on failure to post NTS)
– But tender/prejudice requirement for former homeowners

Right to Possession – Present Right to Possession

Expiration of Notice Period?
– Expiration of Bona Fide Lease?
– Must still satisfy 90-day notice requirement

UD Litigation – Unlawful Detainer Process

Service of Summons and Complaint
– Personal;
– Substitute; or
– Nail and mail with court approval (after reasonable diligence)
– Five days to answer
– Pre-answer motions:
– Delta motion to quash (prejudgment claimant?)
– Demurrer (defect must appear on face of complaint)
– Answer
– Summary Judgment
– Trial

60-Day “Curtain” (CCP 1161.2)

Limited civil UDs are masked for the first 60 days
– Unmasked after 60 days unless tenant prevails within the 60 days

Except for post-foreclosure cases
– Permanently masked unless plaintiff prevails against all defendants after trial within 60 days

Unnamed Occupants

“Doe” occupants
– Must intervene in case by filing prejudgment claim of right to possession within 10 days of service
– BUT see AB 2610 (effective 1/1/13):
– PJCRTP form may be filled out and presented at any time, even after judgment

Appeal

Notice of appeal – 30 days after notice of entry of judgment
– No automatic stay of the writ of possession
– Ask for stay
– Trial court
– Writ proceeding in appellate division
– Appeal bond
– Little case law for post-foreclosure UD issues
21

Hypo

Tom Tenant’s 3-BR home in Sacramento, CA was sold at foreclosure sale on October 1. Tom’s existing lease expires on November 1, 2013. Under this lease, he pays $1,600 in rent each month under the lease, but the surrounding homes rent for about $2,300 per month. On October 5, Ivan Investor, who purchased the property at the trustee sale, served Tom with a 60-day notice to quit. Is the notice correct?

– What if Tom was a Section 8 HCV tenant?
– Or if Tom lived in Oakland instead of Sacramento?

Homeowners who finds themselves in a situation where their lender is fraudulently trying to use cooked up documents to steal their most prized possessions “their homes”, needs to do whatever is necessary to stop these interlopers from stealing their homes. To do this, homeowners need to fight them to the finish in order to avoid the situation of change of status from “borrowers to tenants” as described above. Homeowners in wrongful foreclosures should do their best to reclaim what is rightfully theirs even if the lenders initially succeeded in foreclosing using fraudulent documents. It can reversed and dismissed by the courts through vigorous litigation, that’s where http://www.fightforeclosure.net comes in.

foreclosure_dismissal_Proof

To learn how you can effectively use well structured (Pro Se “Self Representation”) litigation pleadings to effectively challenge and reclaim your status as a homeowner instead of a tenant, visit http://www.fightforeclosure.net

How Attorney Mistakes Can Result to Homeowners Losing their Homes in Wrongful Foreclosure Litigation.

23 Friday Aug 2013

Posted by in Banks and Lenders, Case Laws, Case Study, 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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One of the biggest mistakes we see in various court cases especially in wrongful foreclosure cases where homeowners who are represented by counsel is the failure by plaintiffs’ attorneys to file the complaint within the statutes of limitation period. Attorneys fail to file a claim within the appropriate statutes of limitation for numerous reasons. For example, lawyers often fail to determine the correct statute of limitation applicable to the claim. For instance to effectively bring a TILA lawsuit against your lender, it must be filed within “One Year”, of your mortgage closing otherwise the courts can only allow the cause of action based on whether your motion for equitable tolling is granted or not.

For wrongful foreclosure homeowners who hired Attorneys to represent them, do not assume that your Attorney knows the statutes of limitation period for every cause of action you intend to bring against your lender to save your home, because if your Attorney miss all major causes of action that would have disqualified your lender from stealing your home as a result of fraud, you may end up losing your home even if your lender is liable for other violations which may entitle you to a couple of thousands of dollars in compensation. Your goal is to save your home, so it is not a matter to be taken for granted because you paid your Attorneys big bucks to represent you.

Litigation attorneys are at a greater risk of malpractice claims than all other types of attorneys. Typically, errors arising out of litigation accounted for 35% to 40% of all claims reported. Clients who lose suits often point to a
perceived error by their attorney as the reason their suit was unsuccessful and seek a remedy against the attorney. The main causes of malpractice stem from missing deadlines, failing to calendar, failing to file, failing to
meet discovery obligations, inadequate trial preparation, inappropriate post-trial actions and improper withdrawal. The use of good docketing and tickler systems and the development of good client relations can significantly reduce malpractice risk

While Attorneys obviously need to be knowledgeable about the substantive issues in any lawsuit, some Attorneys does not take care to learn and follow the procedural rules of court.

Even experienced Attorneys do not know every procedural rule for every court in which they practice. Rather, they know where to find the particular procedural rules governing the litigation and make sure they follow them,
thereby reducing their exposure to malpractice actions.

This post, while not exhaustive, provides important tips to help homeowners who are being represented by Attorneys ensure that they are getting their money’s worth thereby avoid common pitfalls that usually
result in malpractice liability when Attorneys fails their clients. After all when you pay someone $5000-$10000 to save your home, you expect them to put their best foot forward. However, always remember that (YOU ARE YOUR OWN BEST ADVOCATED), as a Pro Se Litigant with http://www.fightforeclosure.net

The post highlights ten prominent points during the course of litigation where attorneys are prone to make mistakes, emphasizing specific
types of rules and procedures that are often overlooked. Armed with the information contained in this post, homeowners can help reduce the possibility of losing the homes as a result of negligence conduct of their hired lawyers which could possibly exposure the lawyers to malpractice liability.

THESE FOLLOWING AREAS ARE WHERE THE HOMEOWNERS SHOULD PAY CLOSE ATTENTION TO – THESE ARE WHERE ATTORNEYS USUALLY MAKE MISTAKES.

A GOOD DOCKETING SYSTEM

Attorneys risk malpractice claims when they correctly identify the expiration date of a claim but fail to file the complaint in a timely manner, allowing the claim to expire. One common pitfall is that the attorney or staff person
calendars the deadline in the attorney’s calendar, but the attorney fails to check the calendar, thus missing the date.

Homeowners should ensure that their lawyers can reduce their malpractice risk by diligently calendaring statutes of limitation deadlines and other deadlines that arise within their case. Everything that involves a time limit should be entered into the docket system and the system should generate several advance warnings of each deadline to be given to the attorney and support persons involved.

Although it is ultimately the lawyer’s responsibility to meet deadlines, unforeseen circumstances may prevent the lawyer from meeting a deadline. Homeowners should ensure that their case is assigned a backup lawyer or staff member who is responsible for bringing the deadline to the attention of the main attorney on the matter; or who is able to meet a filing deadline in the lawyer’s absence.

AVOID FILING AT THE LAST MINUTE

Malpractice suits for missing the statutes of limitation also arise when the lawyer and/or his office staff simply neglect to follow through and make sure the complaint is filed with the proper court on or before the deadline. A
variety of unforeseen problems may delay filings. For example, lawyers may sometimes assume that complaints sent by overnight mail will arrive in time and be processed by the court the next day. Similarly, office staff or third
parties hired to assist with the filing may make errors, such as filing the complaint with the wrong court, or missing a last minute deadline.

Such errors can be avoided by routinely filing complaints, motions and other documents in advance of the deadline. Filing at the last minute is a risky practice. Unexpected glitches are bound to occur from time to time. Filing ahead of time will give you breathing room to resolve the unforeseeable problems that might get in the way of filing before the limitation period expires.

KNOWING THE APPLICABLE LAW

DETERMINE THE CORRECT STATUTES OF LIMITATION FOR YOUR JURISDICTION

Attorneys often miss statutes of limitation deadlines when they incorrectly assume that the statutes of limitation runs after the same amount of time in different jurisdictions. For example, the statutes of limitation for a wrongful death claim in Tennessee runs in one-year.  However, a North Carolina plaintiff ’s attorney handling a wrongful death suit arising in Tennessee might assume that North Carolina’s two-year statutes of limitation for a wrongful death claim applies in the situation. If the attorney files a claim after Tennessee’s expiration date but before North Carolina’s expiration date, the attorney missed the appropriate state’s deadline and could face a claim for malpractice.

PERFORM ADEQUATE RESEARCH AND INVESTIGATION

Nearly half of all malpractice claims arise from substantive errors. Examples include failure to learn or properly apply the law, and inadequate discovery or investigation. In addition to ascertaining all relevant statutes of limitation deadlines, it is important that homeowners ensure that their attorneys are  familiar and comply with the law and standards of care in each applicable state.

One common type of malpractice claim resulting from inadequate knowledge of substantive law is in the area of personal injury claims arising out of automobile accidents. Such a claim arises, for example, where the client suffers personal injury in a wreck and there is a $25,000 limit on the defendant’s auto insurance. Since the client has $100,000 worth of damages, the defendant’s carrier readily issues a check for the policy limit of $25,000. The lawyer neglects to investigate whether any other coverage
exists. The client later learns he could have recovered an additional $75,000 from his own insurance policy that included uninsured/underinsured “UM/UIM” coverage. By then, however, it is too late because the client has
already signed a release of all claims against the tortfeasor. Since “[a]n underinsured [UIM] motorist carrier’s liability is derivative of the tortfeasor’s liability,” the UIM carrier may decline to provide any coverage. Liberty Mut. Ins. Co. v. Pennington, 141 N.C. App. 495, 499, 541 S.E.2d 503, 506
(2000), cert. granted, 353 N.C. 451, 548 S.E.2d 526 (2001); see also Spivey v. Lowery, 116 N.C. App. 124, 446 S.E.2d 835 (1994) (UIM carrier was not liable after plaintiff executed general release).

Experience lawyers in these areas and situations usually require have the client execute a limited release that protects the client’s right to recover UIM or UM benefi ts. For an example of a limited release that was upheld by the courts, review North Carolina Farm Bureau, Mut. Ins. Co. v. Bost, 126 N.C. App. 42, 483 S.E.2d 452, review denied, 347 N.C. 138, 492 S.E.2d 25 (1997). In other cases, the lawyer may fail to notify the UIM carrier of the
claim in a timely manner. If the client is unable to recover from his UIM carrier because of his lawyer’s neglect, he may have a claim for damages against the attorney.

In these cases that pertains to personal injury, the law requires the plaintiff to timely serve the summons and complaint on both the tortfeasor and the UM carrier prior to the expiration of the statutes of limitation. See N.C. Gen. Stat. § 20-279.21(b)(3); Thomas v. Washington, 136 N.C. App. 750, 525 S.E.2d 839, review denied, 352 N.C. 598, 545 S.E.2d 223 (2000). Failure to properly serve either the tortfeasor or the UM carrier may result in lost benefi ts for the client and a malpractice claim against the attorney.

These types of errors usually can be prevented through careful research and methodical procedures.

When dealing with wrongful foreclosure case, homeowners should stay abreast of new legal developments. Experts should be consulted, where needed.

PROVIDE ADEQUATE SUPERVISION OVER ASSIGNED TASKS

Malpractice concerns arise when lawyers fail to adequately supervise non-lawyers or junior associates. Lawyers can be held responsible for mistakes made by their employees. See e.g., Pincay v. Andrews, 367 F.3d 1087 (9th Cir. 2004) (Judge Kozinski’s dissent; holding attorney liable for a paralegal’s miscalculation). Such malpractice risk can be minimized
by providing adequate supervision and fostering an environment where questions and concerns can be freely raised. Staff should be carefully supervised as the attorney is ultimately the responsible party.

FILING THE COMPLAINT AND SERVICE OF PROCESS

After the proper statutes of limitation period has been properly identified and the complaint properly filed, other pitfalls await the unwary attorney. Attorneys commonly make mistakes in naming and serving the proper parties. Such defects can often be corrected. However, when a lawsuit is commenced at the eleventh hour (just before the statutes of limitation expires), as in most wrongful foreclosure cases, the attorney may not
have time to correct such flaws, and the client may suffer prejudicial harm as a result.

IDENTIFY AND NAME THE PROPER DEFENDANT

One of the most common mistakes attorneys make is that they fail to discover and identify the proper name of the corporate defendant whom the plaintiff seeks to sue. In a wrongful foreclosure case that involved securitization of mortgage loans, sometimes defendants mights be more than one. To avoid such errors, homeowners should ensure that their attorneys should make every effort to ascertain the defendant’s proper
corporate name either before filing the complaint or as soon as possible thereafter through discovery. A diligent effort should be made to determine all possible entities and persons who should be named as parties in the lawsuit. If situation involves foreign defendants, take special care in correctly naming and serving foreign defendants. Foreign service requirements, including Hague Convention requirements, may need to be followed.

SERVE ALL DEFENDANTS WITHIN STATUTORILY PRESCRIBED TIME LIMITATIONS.

Attorneys who commit errors in timely serving a complaint and summons on a defendant may also face malpractice liability.

Attorneys must serve a defendant with a complaint and summons within the statutorily required time limitations. These limitations vary according
to jurisdiction. For instance, an attorney must serve a defendant to a lawsuit in federal court within 120 days of the fi ling of the complaint. Fed. R. Civ. P. 4(m). However, a defendant in a lawsuit in North Carolina State court must be served in most cases within 60 days after the date of the
issuance of the summons. N.C. Gen. Stat. § 1A-1, Rule 4(c).

Attorneys who fail to perfect service upon a defendant within the statutory expiration period may request an extension of time for service of process. A federal court will grant an extension only if the attorney provides good
cause for the delay in service. Fed. R. Civ. P. 4(m). On the other hand, a North Carolina court will issue an alias or pluries summons to extend the time period for service upon request, provided certain guidelines are met. N.C. Gen. Stat. § 1A-1, Rule 4(d)(2). Thus, an attorney may be vulnerable to malpractice claims for failing to follow the rules of the particular court in which the case is being litigated. For instance, attorneys may request an alias or pluries summons “at any time within 90 days after the date of issue of the last preceding summons in the chain of summonses.” Id. Provided that the request is not made in “violations of the letter or spirit of the rules for the purpose of delay or obtaining an unfair advantage,” an attorney may request numerous alias or pluries summonses and extend the service deadline for a lengthy period of time without committing malpractice. Smith v. Quinn, 324 N.C. 316, 319, 378 S.E.2d 28 (1989). However, an attorney who does not request an alias or pluries summons within the 90 day time period invalidates the old summons and begins a new action. See CBP Resources v. Ingredient Resource Corp., 954 F. Supp. 1106, 1110 (M.D.N.C. 1996). An attorney risks malpractice liability if the statutes of limitation runs before the alias or pluries summons is issued in such a situation.

In addition, an attorney must refer to the original summons in an alias or pluries summons or else the alias or pluries summons is invalid. Integon Gen. Ins. Co. v. Martin, 127 N.C. App. 440, 441, 490 S.E.2d 242 (1997).

In addition, the attorney may encounter the situation where he is unable to serve the defendant with the summons and complaint because the defendant has died. To complicate matters further, the statutes of limitation
has expired. Homeowners should ensure that their Attorneys consult the statutes for their respective Jurisdictions. This statute will help the lawyer resolve the issue and save the homeowners cause of action.

KEEP THE SUMMONS ALIVE OR ENTER INTO ENFORCEABLE TOLLING AGREEMENTS WITHIN THE STATUTES OF LIMITATION WHILE ENGAGING IN SETTLEMENT DISCUSSIONS.

It is often in the client’s best interest to pursue settlement before spending the time and money involved to file or serve a complaint. However, in the instants where the Banks are not willing to work with homeowners, but where rather interested in stealing the homes through wrongful foreclosure, homeowners are left with little options but to pursue the litigation with their Attorneys or Pro Se, in order to save their homes.

In such cases, it is important that the homeowner let their Counsels know that  it is crucial to keep the required summons alive and/or enter into an enforceable tolling agreement with the opposing party. Such tolling agreements must be executed before the statutes of limitation passes. Regardless of how close the parties may be to settlement, the Attorneys should not let the statutes of limitation pass without invoking proper protections for the homeowners.

For More Information How You Can Aggressively Defend Your Wrongful Foreclosure on Your Own “Pro Se”, thereby Avoiding These Costly Attorney Mistakes That Can Potentially Cost You the Most Valuable Investment You Have Ever Made which is “Your Home – The American Dream” Visit http://www.fightforeclosure.net (You Are Your Own Best Advocate!)

California Broker Receives 10-Year Prison Sentence for Mortgage Fraud

18 Sunday Aug 2013

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

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In California, a real estate broker out of Elk Grove was sentenced to 10 years in prison for her role in a mortgage fraud scheme that led to more than $5.5 million in losses, the Justice Department announced in a statement.

Hoda Samuel, 62, owned and operated Liberty Real Estate & Investment Company and Liberty Mortgage Company.

Out of 30 fraudulent sales transactions that occurred between April 2006 and February 2007, Samuel serve as the real estate agent for the buyer in 29 of the home sales, according to the statement. All the properties involved in the transactions went into foreclosure.

The transactions included false statements pertaining to income, employment, and rental history. To back the fabricated information, false documents were created and presented to lenders, and people were paid to answer calls from lenders and affirm the false statements.

Samuel also exaggerated the value of the collateral securing the loans, often exceeding the actual asking prices by $15,000 to $40,000. Repairs and costs for disability access modifications were also included in the prices, but were rarely done. According to the statement, at times, children of buyers were named as building contractors so money could go to the buyers.

“Greed-based crimes such as these can undermine the stability of our financial institutions and the economy, resulting in devastating consequences for homeowners, businesses and the communities in which the properties are located,” said special agent in charge Monica M. Miller of the Sacramento division of the FBI.

For More Information How to Save Your Home From Foreclosure as a Result of Mortgage Fraud Like this Visit http://www.fightforeclosure.net