Archive for November 11th, 2011

Defending a Foreclosure Lawsuit, Years After the Fact

Florida’s Fourth District Court of Appeal issued an opinion this week which bears discussion.  In the case of Woodrum v. Wells Fargo Mortgage Bank, the Fourth District reversed a trial court order granting a Final Judgment of Foreclosure because the bank did not disprove the homeowner’s affirmative defenses.  That’s not a new principle of law; we should all know at this point that the bank must disprove affirmative defenses to prevail at summary judgment. 

What interested me about this case was the bank’s argument that the homeowner was prohibited from raising these defenses because the homeowner did not file its Answer, containing such defenses, in a timely manner.  The Fourth District appropriately rejected this argument, citing Fla.R.Civ.P. 1.500(c), ruling:

[A] party may plead or defend at any time before a default is entered.

This language takes me back to a foreclosure case I handled just recently.  The homeowner had been trying to defend the case pro se since 2008.  It was set for trial in October, 2011 and the homeowner realized he was in over his head, so he came to me.  In that sort of situation, the first thing I look for is to see whether the homeowner had been defaulted.  In that case, he had not.  I then checked to see if he had filed an Answer (with affirmative defenses).  He had not.  As a result, I knew I could file an Answer, with defenses, even though trial was just a few weeks away and even though the Answer was more than two years late. 

That’s worth clarifying:

The homeowner’s Answer to the Complaint, with affirmative defenses, was more than two years late but I still filed it.

Not only was this totally permissible, but the judge agreed with my subsequent argument that the trial had been set prematurely because the case was not at issue.  See Fla.R.Civ.P. 1.440.  Hence, not only did I file an Answer, but the trial was continued. 

How can this happen?  It’s a matter of procedure.  As the Fourth District explained in Woodrum, when the defendant has not been defaulted, he may defend the case at any time, even years later.  The Answer must be filed before Final Judgment is entered, of course, but without a default, and without a Final Judgment, an Answer can be filed at any time.

This dynamic happens quite often in foreclosure cases.  Hence, for the countless pro se homeowners who have not been defending their foreclosure cases, please realize – it’s probably not too late.  If a default has not been entered, you can hire an attorney and file an Answer and Affirmative Defenses, even if the case has been pending for many years.  And even if you’ve been defaulted, there are a variety of circumstances where such a default can be vacated.

Don’t walk away, and don’t give up!  You have rights, you just have to exercise them.

Mark Stopa

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