Archive for December 21st, 2011

Defend Your Foreclosure – Before It’s Too Late

I’ve written a few blogs recently containing some very favorable decisions from Florida’s Fourth District Court of Appeal, including here and here.  Today, this same court issued a ruling in Vilvar v. Deutsche Bank which, to most homeowners, probably appears quite unfavorable.  In its decision, the Fourth District explains at length why a homeowner’s 1.540 motion was appropriately denied by the trial court judge because the homeowner did not show the bank committed fraud in obtaining a Final Judgment of Foreclosure.  The court even went so far as to chastise the homeowner’s attorney for filing the appeal, intimating it could have sanctioned him if it so desired. 

Has the Fourth District suddenly had a change of heart?  Why the drastically different outcomes? 

The obvious distinction between Vilvar and other, recent cases I’ve discussed is purely a procedural one.  In Vilvar, the homeowner tried challenging the foreclosure lawsuit after the case was already over, after the foreclosure judgment had already been granted.  By contrast, the homeowners in the cases which had favorable rulings brought their arguments/objections prior to the foreclosure judgment being entered. 

This may seem like an immaterial distinction, but it’s not.  Florida law is very clear – the circumstances in which a foreclosure judgment will be vacated, after the case is over, are quite limited.  In fact, arguments that would defeat entry of a foreclosure judgment if made while the case is pending are often insufficient to vacate the foreclosure judgment after it’s already been entered.  To illustrate, here’s how the Fourth District explained itself in this regard:

We likewise find no merit to Vilvar’s claim that Cross’s affidavit did not contain admissible evidence and that failure to attach any sworn or certified copies of the records upon which she relied should have made the affidavit insufficient under 1.510(e).  Vilvar’s failure to timely object to the sufficiency of Cross’s affidavit when it was presented on motion for summary judgment is fatal to this claim.  (citing cases)

What’s telling about this part of the ruling is that  deficiencies with the bank’s affidavits supporting summary judgment are precisely the sort of thing the Florida courts have been giving as a reason a foreclosure judgment should not be entered.  But making that same argument after the case is already over?  Too late, argument waived, motion denied. 

This is an excellent illustration of how homeowners can waive legitimate defenses in foreclosure lawsuits if they’re not timely and appropriately raised.  Please don’t make the same mistake Ms. Vilvar did.  Don’t wait to defend your foreclosure until it’s too late.

Mark Stopa

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