Real Estate Attorney with THE ZARETSKY LAW GROUP - Board Certified Real Estate Atty and AUTOMATED LAND TITLE COMPANY

"If the defendant doesn't hire counsel or doesn't defend themselves then it's not the judge's job to be the defendant's attorney".  This quote from an editorial in the Palm Beach Post on November 30, 2010 says volumes to those in the foreclosure process without an attorney.  Read it carefully as it says volumes more than the 21 words it contains.

I have written about this in the past and realizing that not everyone reads my articles and further, those that do read an article may not take action based on the knowledge offered in the article, I am still frustrated when I go to court and see homeowners coming to court "for my time to speak to the judge" - or not even showing up at all.

Let me shout from the rooftop - YOUR TIME IN FRONT OF THE JUDGE ON A MOTION FOR SUMMARY JUDGMENT WILL AMOUNT TO LITTLE THAN, "HELLO, NICE TO MEET YOU MR. AND MRS. HOMEOWNER ABOUT TO LOSE YOUR HOME."         The conversation with the judge must be within the Rules of Civil Procedure.  Those rules for a Motion for Summary Judgment are that the bank has to show that there is no issue of fact or law that is disputed as shown by the pleadings in the court file (usually 5 days prior to the hearing).  NO ORAL TESTIMONY IS TAKEN AT A MOTION FOR SUMMARY JUDGMENT HEARING. (See - A LAWYER'S EXPLANATION OF THE FORECLOSURE PROCESS).

About the only relief a borrower can get at the Motion for Summary Judgment hearing is a period longer than 40 days before the foreclosure sale will occur - and that can be asked for by the borrower at the hearing.  Often however, the bank attorney will object to the granting of largess in the form of an extended or delayed foreclosure sale date.  In that case the judge needs to determine there are extenuating circumstances for granting a delayed sale date.

If you are a borrower in trouble, you can't play with your head in the sand and hope for the best.  You must develop a goal of a solution - a resolution of the problem - and put in a REALISTIC plan to make it work.  "Realistic" has a lot of meanings.  Working with the lender using your concept of "logic" is not one of the realistic methods of proceeding. Your lender (or lender's servicer) has so many moving parts, so many changing rules, and so many employees that are not trained to address your problem, so that logic cannot occur.  Also "realistic" is not expecting the foreclosure to take 2 years for finalization.  (See FORECLOSURE PROCESS FINISHED IN 100 DAYS?)

 What this all comes down to is troubled homeowners need good and real advice.  This advice is available from attorneys that are historically trained in real estate and finance issues (that means not the Johnny come lately because this is where the money is); from certified credit counseling organizations accredited by HUD, and from some accountants.  Notice I did leave out realtors and mortgage brokers.  This is because they could be part of the solution - but you need to develop the goal of a solution and to do that you need legal advice.  A real estate broker or mortgage broker can not provide legal advice unless they are a licensed attorney.  Most in the real estate profession know that maxim (actually it is both a rule and a law) and they will suggest a lawyer for you to consult with for development of the solution.

As I stated in the beginning, that quote speaks volumes and rather than go on and on, I will ask you to just read it again and think about what you really need to do to find your own particular solution.

Copyright 2010 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: - 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!  New Website

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Larry Bettag
Cherry Creek Mortgage Illinois Residential Mortgage License LMB #0005759 Cherry Creek Mortgage NMLS #: 3001 - Saint Charles, IL
Vice-President of National Production

Rich....I'm an attorney as well.  I love your phrase, that you can't put your head in the sand and hope for the best!  Nope....not at all!   Needless to say, great info!!!!

Nov 30, 2010 12:57 AM #1
Nor Yeretsian
Envoy Capitol Realty Inc. - Toronto, ON
Envoy Capitol Realty Inc., Brokerage Toronto

Thanks Richard, for the good information and post. I'm surprised people risk and play these games with their biggest asset...


Nor Yeretsian

Nov 30, 2010 01:21 AM #2
Wendy Rulnick
Rulnick Realty, Inc. - Destin, FL
"It's Wendy... It's Sold!"

Richard - Good advice.  My mantra is "consult an attorney". You're the best!

Nov 30, 2010 11:15 AM #3
Gary L. Waters Broker Associate, Bucci Realty
Bucci Realty, Inc. - Melbourne, FL
Fifteen Years Experience in Brevard County

I always say I am not an attorney but it seems folks do not always listen.

Dec 02, 2010 04:59 AM #4
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Richard Zaretsky

Florida Real Estate Attorney
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