How Civil Procedure Impacts Florida Homeowners Facing Foreclosure
It’s sometimes difficult to explain, in layman’s terms, how a foreclosure defense attorney can assist homeowners who are behind on their mortgage. Sure, most Americans are aware, at this point, how attorneys such as myself force the bank that is suing to prove it is the “right” bank, i.e. force the bank to prove it owns and holds the original note and mortgage. As I see it, though, a better explanation of how I help my clients comes through an understanding of the Florida Rules of Civil Procedure.
Generally speaking, there are only two ways a bank can “win” a foreclosure lawsuit in Florida (as required to foreclose on a Florida homeowner). First, the bank can prevail on a motion for summary judgment. This is when there are no material facts in dispute and the bank is entitled to judgment as a matter of law. Nearly 100% of foreclosure cases are adjudicated this way, typically after a bank presents an affidavit supporting its position and the homeowner presents no conflicting affidavits.
Second, the bank can win at trial.
When a competent foreclosure defense attorney handles a file, it is often, quite candidly, not terribly difficult to defeat a motion for summary judgment brought by the bank. Yes, some cases are harder to defend than others, and no, I’m not saying summary judgment is impossible. However, in my experience, most homeowners have sufficient defenses to preclude a foreclosure via a motion for summary judgment. To understand why that is so, try not to get bogged down in legal jargon. Instead, think about it like this. For a bank to obtain a foreclosure via summary judgment, the judge must accept all facts asserted by the homeowner as true (even if the bank disagrees with those facts) and, based on the homeowner’s version of the evidence, must conclude whether the bank is entitled to a foreclosure. See Fla.R.Civ.P. 1.510.
To explain how this standard works, I like to use a traffic light analogy. Suppose it’s a personal injury case and the plaintiff’s lawyers line up 10 witnesses, all of whom say the traffic light was red at the time of the accident. Now suppose the defendant presents one witness, himself, who says the light was green. Even though the plaintiff has many more witnesses, the judge is required, at summary judgment, to accept what the defendant says – the light was green - and to rule accordingly. This is a high legal standard, and it’s a big reason why it’s so hard for banks to obtain a foreclosure via summary judgment when the homeowner retains counsel. Essentially, the homeowner just needs to find one material fact in the bank’s case with which it disagrees to prevent summary judgment. When that happens, the bank is left with just one option – trial.
If you’ve watched Law and Order or a similar lawyer show on TV, a trial may not seem like a big deal. Let me assure you – trials don’t happen like you see on TV. In fact, in my experience, banks don’t like to go to trial in foreclosure cases, even if that’s the only way they can get a foreclosure. I won’t speculate about banks’ motives too much, but I strongly suspect the banks are afraid of losing at trial and the precedent/fallout that would ensue. With media coverage of foreclosure cases how it is, can you imagine if a big bank like Bank of America went to trial against a homeowner who hadn’t paid his/her mortgage in two years and lost? Homeowners throughout the country would be emboldened not to pay their mortgages and to push cases to trial. To put it differently (and forgive me if this sounds sexist, but it’s a comparison with which I can related since I have a little sister) … going to trial for a bank is like a big brother getting into a fight with his little sister. Why do it? If you win, you’re supposed to win – you’re bigger, and she’s a girl. If you lose, then, good grief! You lost a fight to a girl! Rather than risking that humiliation, isn’t it better to avoid the possibility altogether?
Hence, there are only two ways a bank can “win” a foreclosure case – summary judgment and trial - but summary judgment is hard to get and banks typically don’t want trials. So what happens? Foreclosure cases often languish. Banks file them, but when homeowners defend those cases with an experienced foreclosure attorney, the cases often progress at a slow rate. The banks’ lawyers have so many other cases, it’s easy for them to ignore these cases and work on others.
Personally, I don’t see anything wrong with this dynamic. When I represent plaintiffs in lawsuits against insurance companies, I have to work to push the case towards judgment, and if I don’t, the case languishes. Do you think anybody is helping me move the case forward if I don’t work on that file? Heck no! That’s just how it works – when you’re the plaintiff, and you want a remedy through the court system, it’s your burden to prosecute your case towards judgment; if you don’t, you don’t get that remedy. Foreclosure cases operate the same way – the banks want relief, so they must prosecute their cases towards judgment; if they don’t, then they don’t get a foreclosure (and the homeowner remains in his/her home while the case is pending).
Many Florida judges don’t like this dynamic. They see cases languishing and, in an ongoing effort to reduce the backlog of cases from their docket, they sometimes take actions to advance cases towards judgment. Lee County in particular is notorious for this, setting cases for trial right after they are filed. I’ve already expressed my dislike for judges acting in this manner at length, so instead of rehashing that, let’s evaluate this issue from a procedural perspective.
Under established law, a case can only be set for trial (in a foreclosure lawsuit or any other type of case) if it is “at issue.” This means, in layman’s terms, that all motions to dismiss filed by the homeowner have been denied and the homeowner has filed an Answer to the Complaint. (It’s more complicated than that, but that’s the simple explanation.) See Fla.R.Civ.P. 1.440.
If a foreclosure case has not progressed to that point, i.e. where it is “at issue,” yet the judge sets it for trial anyway, then the judge is committing legal error that should be reversed on appeal. It may seem hard to believe, but if a judge sets a foreclosure lawsuit for trial prematurely, and the bank wins at trial, the appellate court would/should reverse that foreclosure. It doesn’t matter if, substantively, the bank was perfectly entitled to foreclosure – from a procedural perspective, the trial was set prematurely and should not have taken place. See Bennett v. Continental Chemicals, Inc., 492 So. 2d 724 (Fla. 1st DCA 1986) (en banc); Precision Constructors, Inc. v. Valtec Construction Corp., 825 So. 2d 1062 (Fla. 3d DCA 2002).
If you’re defending a foreclosure lawsuit and the bank or the judge is trying to set it for trial prematurely, make sure you cite Rule 1.440, Bennett, and Precision Constructors. Respectfully let the judge know that he/she will be reversed on appeal, even if the bank is otherwise entitled to foreclosure. That may sound harsh, but these rules of procedure are in place for a reason, and it’s incumbent on everyone to follow these rules in all lawsuits, including foreclosure cases.