UPDATED - SEE NEW CASE THAT SUPPORTS THIS THEORY - VERIZZO V. BANK OF NEW YORK
Today I used a new technical defense to successfully defeat a motion for summary judgment for foreclosure and I wanted to pass it on to other attorneys (or those who know attorneys) helping homeowners in foreclosure.
This happened in Florida, but other states' rules could provide the same type of relief.
The bank filed its foreclosure some months ago and the homeowner tried to represent himself and did a poor job of it because there were several deficiencies in the pleadings filed by the bank. Then I came into the picture just 8 days before a scheduled court hearing to grant the bank's Motion for Summary Judgment of Foreclosure, at which time the public sale date for the house would have been set.
As with most foreclosure suits the promissory note could not be produced so the bank was going to produce at the hearing an Affidavit of Lost Promissory Note. This is permitted under a special state statute that creates a mechanism to prove up a financial instrument that was lost by the holder.
However, the Rules of Summary Judgment say that any pleading to be used by the moving party (here, the bank) must be filed with the court and provided to the other parties at least 20 days prior to the hearing.
The bank complied with the lost note statute (they had the lost note affidavit to give to the judge), but not the court rule about the 20 days, I argued -- and the judge agreed and denied their Motion for Summary Judgment.
This whole exercise was not to create a delay so the client can live in the house for free -- it was obtained so the client can complete a short sale (he still needs a buyer) and avoid a foreclosure deficiency judgment that will haunt him for the next 20 years.
I pass this on in the hope that this customary practice by the lenders will be recognized by attorneys and used to help out those needing more time to find a better solution than foreclosure.
Copyright 2009 Richard P. Zaretsky, Esq.
Be sure to contact your own attorney for your state laws, and always consult your own attorney on any legal decision you need to make. This article is for information purposes and is not specific advice to any one reader.
Richard Zaretsky, Esq., RICHARD P. ZARETSKY P.A. ATTORNEYS AT LAW, 1655 PALM BEACH LAKES BLVD, SUITE 900, WEST PALM BEACH, FLORIDA 33401, PHONE 561 689 6660 email: RPZ99@Florida-Counsel.com - FLORIDA BAR BOARD CERTIFIED IN REAL ESTATE LAW - We assist Brokers and Sellers with Short Sales and Modifications and Consult with Brokers and Sellers Nationwide! Shortsales@Florida-Counsel.com New Website www.Florida-Counsel.com .
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