Respond to the Complaint

You have twenty days after service to respond to the Complaint. The response can be an Answer or a Motion to Dismiss. If justified, the initial response should be a motion to dismiss. The Motion to Dismiss delays the time for an Answer until the motion is denied. You will waive many issues if you omit them from the motion, so you should hire a lawyer to represent you if at all possible.

Draft the Motion to Dismiss
Consider:
1. Was service on you proper? (In your hand, or if at home in the hand of you or another adult resident)
2. Is a copy of the promissory note attached to the Complaint?
3. Does the plaintiff adequately show the plaintiff owns and holds the note?
4. If there is a count to re-establish a lost note, does the count say it was lost while in the possession of the plaintiff? Are the allegations generic or specific?
5. Does the Complaint show that the taxes on the note were paid?
6. Does the Complaint show that you signed the note or have an interest in the property (2d mortgage holder, tenant, etc) — being a spouse of the debtor is no reason to sue you.
Serve the motion to dismiss. Send the original to the clerk of the court. (If possible, bring a copy of the original to the clerk of the court with the original motion and have the clerk time-stamp your copy to show it was on time).

Wait until the judge rules on the motion

Some circuits require that you send a copy of the motion to the judge with a blank order and envelopes. If there is such a requirement, do it. You do not have to do anything else until the motion is denied. Under the above procedure, this might happen without a hearing, or the judge might request a hearing. In the circuits that do not require notifying the judge about a motion to dismiss, the plaintiff will have to contact you, discuss the merits of the motion, and if you do not agree, either set it for hearing or Amend the Complaint. (If the Complaint is amended, go back to step 1, above). If the matter is set for hearing, attend the hearing and tell the judge why the Complaint is defective (not why you do or do not owe the money).

Answer the Complaint

You should have a lawyer do this in order not to miss important issues. But consider:
1. Denying all the material facts alleged.
2. Adding Affirmative Defenses; consider these:
A. The same issues detailed in the Motion to Dismiss considerations
B. Predatory lending
C. Illegal interest rates
D. Waiver
E. Violation of the Truth in Lending Act
F. The Complaint fails to state a cause of action.
G. The Complaint fails to state a cause of action because it does not show endorsement of the promissory note to the plaintiff.
H. Plaintiff has failed to present the promissory note for payment as required by Fla. Stat. §§673.011, et. seq.
I. Plaintiff is in violation of Florida Statute §57.011 because it is a non-resident of the State of Florida that has not posted a non-resident cost bond after a demand that it do so.
J. Plaintiff is not the real party in interest

Attend mediation

If mediation (a non-court, alternative dispute settlement process) is set attend. Consider these possibilities: If you want to leave the home, consider:
1. Giving a deed in lieu of foreclosure (be sure you get a guarantee of debt forgiveness)
2. Asking for move-out money (“Cash for Keys”)
3. A short sale (be sure you get a guarantee of debt forgiveness)
4. Setting a move-out date long into the future.

If you want to stay in the home, consider:

1. Ask for a reduction in principal to the value of the home (A recent federal program may help facilitate this in part)
2. Asking about the HAMP program (if you qualify, the interest rate is reduced and the term extended so that the payments are reduced)
3. Asking about conventional refinancing to current rates
Remember, you do not have to agree on anything. You can let the foreclosure take its course. Remember, the promissory note is negotiable paper, it may be able to be sold and then enforced against you if you do not get the original note back.

If mediation is unsuccessful, send discovery to the plaintiff

You need a lawyer to do this well. The discovery should be aimed at showing that you do not owe this plaintiff anything. Consider:
1. Interrogatories
2. Request to Produce
3. Request to Admit
Be aggressive if you do not timely receive responses. File motions to compel and set them for hearing. The plaintiff’s lawyers are probably working on a flat fee and may leave you alone if you are difficult to deal with. Be sure to properly respond to the plaintiff’s discovery. (Request to Admit are deemed admitted if you do not timely respond).

When the Motion for Summary Judgment is filed; Respond with an Affidavit

A trial will be needed if any material allegations are at issue. These might include who owns the note, are you in default, as well as the legal defenses set forth above. But, the judge will only defenses presented in a timely, properly drafted and filed affidavit, Get a lawyer to help you do this. Avoid a Summary Judgment.

If there is a trial, defend aggressively. Make sure you hire a court reporter for trial

Raise all the issues stated above. Bring witnesses and documentary evidence. Concede nothing.

If you lose

Consider an appeal, but this is costly and does not delay the foreclosure without posting a bond. You can still redeem the property by paying the judgment until the clerk of the court issues the certificate of title. Consider refinancing.

Court – 19th Circuit – For rules, etc

Clifford M. Miller
Florida Bar Board Certified Civil Trial Lawyer
Miller Law Offices
3760 20th Street
Vero Beach FL 32960-2464
772-562-4570