What is the Normal Process of a Florida Foreclosure?
The answer to this question really depends. Most of it depends on whether the homeowner hires an attorney to defend the lawsuit. After the foreclosure case is filed (assuming in Florida), the Plaintiff (bank) usually has 120 days to serve the complaint and the summons on the homeowner or tenant residing on the property. There are strict rules for service of process and many times there are issues with the service itself. Assuming service is valid, the defendant(s) has 20 days to file a response to the Complaint or else the Plaintiff may look to get a clerk's default.
If a default is entered by the clerk, it acts as a final order. The order can be set aside for good cause, but it is best to avoid having to set these aside. If you are able to file an answer or an extension of time with Plaintiff's consent (or by filing the motion, getting it set for hearing, and getting the judge's permission for more time) then so be it. The response can either come in the form of a motion to dismiss or an answer. Failure to raise certain defenses in either response could result in your waiving those defenses. Motions to dismiss are very difficult to win on, but it is possible. Pleadings must be filed in good faith and cannot be filed for the purpose of delay or hinder.
The court could sanction the attorney or the entity filing the motion if it is not on a good faith basis. During the response stage, both sides may choose to request certain documents from one another. In many instances, depositions may be taken and interrogatories sent. If the documents are not provided in a timely manner, the opposing party may ask the court to force the party to produce the documents. If the other side fails to comply after a court order has been entered making them comply, the moving party can seek attorneys fees, sanctions, and possible dismissal of the case.
After all discovery takes place, the bank may file a motion for summary judgment. This allows the bank to win the case without going to trial. It essentially says when everything is taken as true for both sides, there is no material issues left to litigate or argue. There are many ways to defeat a motion for summary judgment. If the motion is defeated then the parties set the case for trial or resolve the matter before it reaches trial.
If you have questions about Florida Divorces or Bankruptcy Law contact a Florida Attorney
Greg Gilbert
Keith Maynard
