Archive for April 12th, 2012

Getting Retained in Old Foreclosure Cases

I just expressed my frustration about homeowners waiting too long to seek my help, but don’t get me wrong.  It’s possible – in fact, quite common – for a good foreclosure defense attorney to help homeowners many months or even years after a foreclosure lawsuit was first filed, particularly if a judgment has not been entered already.  Typically, an attorney like myself will just pick up with the defense of that case from that point forward, asserting whatever defenses are available and have not been waived.

Every so often, though, I see a glaring legal error from earlier in the case that I’ll feel compelled to ask the Court to reconsider.  This isn’t always possible, as many defenses are waived if not asserted properly the first time, but, in many instances, a motion for reconsideration is entirely proper.

Here’s one fact-pattern I see somewhat regularly (particularly out of Brevard County, Florida) …

The homeowner was defending lawsuit pro se (or perhaps not at all).  The bank was lax in prosecuting the case, so a clerk or a judge issued a notice of intent to dismiss for lack of prosecution under Fla.R.Civ.P. 1.420(e), setting a hearing on that issue two months out.  Despite that warning, and despite the impending hearing, the bank filed nothing for 60 days thereafter and filed no written “good cause” five days before the hearing.  However, in a last-ditch effort to avoid dismissal, the bank attorney showed up at the hearing and persuaded the judge not to dismiss the case for lack of prosecution.  Without a homeowner opposing that request, many judges agreed, allowing foreclosure cases to remain pending when, in my view, they should have been dismisssed.

I’ve seen this fact-pattern in a few cases where I was recently retained, and I’ve started filing motions like this.  Basically, I’m telling the Court that the case should have been dismissed for lack of prosecution, and if the court does not reconsider its ruling in that regard now, it will be facing an appeal on that issue at the conclusion of the case.  That may sound crazy, but as the motion reflects, it’s entirely possible for a homeowner to lose a foreclosure case, suffer an adverse judgment, and to appeal based on an argument that the case should have been dismissed for lack of prosecution (before the final judgment was entered).

Thanks to a recent case from the Florida Supreme Court, the rules for lack of prosecution are really clear.  The banks may have convinced judges to ignore those rules because the homeowner didn’t have counsel (or didn’t know how to hold the bank’s feet to the fire on this issue), but we shouldn’t let them get away with it.

Of course, this is just one example of how, so long as a final judgment of foreclosure hasn’t been entered, it’s almost never too late for a good foreclosure defense lawyer to help Florida homeowners.

Mark Stopa

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