In the preceding blog article I addressed the issues when a borrower waits until they get before a judge to determine that they may want an attorney to represent them.  Foreclosure is NOT a Remedy deals with the issues when a borrower has been served with a foreclosure complaint (sometimes mistakenly called a "lis pendens") and more than the time allowed for a response to be filed with the court has come and gone, and no attorney is involved on the borrower's behalf to pursue any available defenses to the foreclosure proceeding.  But don't lose sight of the caveat that the borrower should always be looking for alternatives to foreclosure.

These articles discuss:

1.         "I have a hearing next week before the judge to tell him my story."

2.         "I was served with a foreclosure complaint (lis pendens) months ago".

3.         "What does this ‘Final Judgment of Foreclosure' mean?".

This article addresses the 2^nd item on the list - I was served with a foreclosure complaint - months ago.

The time to see an attorney is ideally when the borrower realizes that a financial distress problem is likely on the horizon.  As for delaying that meeting - it all depends on what threshold events are occurring or have already occurred.  Planning and defenses can take time to put into effect or to create, and alternatives to foreclosure take time to establish and put into effect.  Any block of time taken off the timeline by procrastination or delay can create a loss of the ability to use that alternative or raise a particular defense to the foreclosure.

The Initial Response

The first thing to realize when you get a foreclosure (lis pendens) complaint served upon the homeowner is that it MUST be responded to within the time stated on the Summons - usually 20 days from the date it was handed to you or posted on your door. Sometimes service is accomplished by "Notice of Action" publication and special rules apply to that type of "substituted" service of process. A "must read" to understand this process is A LAWYER'S EXPLANATION OF THE FORECLOSURE PROCESS.

The Type of Response - Motion to Dismiss / Answer / Affirmative Defenses

The type of response depends on the strategy of the borrower.  If there are defects in the complaint then a Motion to Dismiss should be filed.  Failure to file a Motion to Dismiss can be a waiver of the defects in the complaint.  Defenses should not be confused with defects.  Defenses can be pleaded in the Answer as Affirmative Defenses. Failure to plead Affirmative Defenses are waived if not plead.  There are specific time restrictions when a defect or defense can be plead (filed). An untimely motion or defense will not be allowed by the court, even if it has merit. For a discussion on the effect of defenses, see FORECLOSURE DEFENSE FALLACY for what may or may not be a valid usable defense.

The Foreclosure Complaint Motion for Default

The key event if the borrower has not responded to the Complaint in a timely manner is whether or not the lender's attorneys have filed a Motion for Default against the borrower.  The granting (sometimes by the Clerk of Court instead of the Judge) of a Motion for Default or Entry of Default, prevents the borrower from filing any responsive or defensive pleading for the rest of the case!  A default can be set aside by the Judge, but only in certain situations for good cause and it is completely within the Judge's discretion.

The Amended Response

What happens when the borrower filed a letter or some other inadequate pleading in response to the Complaint before retaining us?  If we can show that there are likely viable defects in the Complaint or arguable defenses to the Complaint, usually the Judge will allow an amended Answer and the filing of amended or first time defenses.  Less seldom is a Motion to Dismiss allowed, unless we can show that the Motion raises good grounds for a jurisdictional defect or significant inadequacy in the Complaint.

After the initial pleadings the case will usually proceed to a Motion for Summary Judgment.  This was discussed in the previous article Foreclosure? When is the Best Time to See an Attorney?  (click on this link).

Foreclosure is NOT a Remedy 

During this process the borrower should be pursing other remedies.  Our policy is that Foreclosure is NOT a Solution.  That is why I just didn't use the term "alternative remedies".  Foreclosure is NOT a REMEDY for the borrower - it is a RESULT of unfortunate events.

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  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.  See our easy to find articles at TABLE OF CONTENTS - SHORT SALE AND LOAN MODIFICATION ARTICLES.