How do I answer a complaint for foreclosure and how long do I have?
Full Question:
Answer:
In Florida, mortgages are foreclosed in equity, not at law. This means that the foreclosure claim shall be tried before a judge, rather than a jury. Therefore, if any counter-claims are filed by the borrower-homeowner, the courtwill hold a separate trial for any counterclaims against the foreclosing mortgage. Although the foreclosure claim will be tried without a jury, counterclaims brought by a borrower-homeowner may be separately tried before a jury, apart from the main foreclosure lawsuit.
In Florida, because the lawsuit to foreclose on a borrower is a suit in equity, it is virtually impossible to obtain an injunction to stop a court ordered sale. A sale can be set aside if there is a procedural error in the foreclosure process. However, a low sales price is insuffiecient reason to set aside the sale. The court order commanding foreclosure will specify how the foreclosure must take place, and the foreclosure must take place on those terms.
After the lis pendens and complaint have been filed, a process server (typically a County Sheriff) will deliver to you a copy of the complaint filed against you, the lis pendens and the summons. The summons is the document that explains your rights and responsibilities associated with the lawsuit that has just been filed against your for your default on the loan and the foeclosure.
A person has 20 days from receipt of the summons to file an answer with the Clerk of the Circuit Court. Additional time may apply for service by mail (see statute below . An answer is a legally sufficient response to the allegations that have been alleged against you in the complaint. The answer will generally either admit or deny each claim made by paragraph, or state an inability to admit or deny for lack of knowledge. Defenses may also be raised. Lack of funds and inability to pay is not considered a valid defense. A valid defense may include such excuses as identifying the incorrect borrowing party to the loan contract, or having made all payments on time, among others. The answer is an opportunity to show why the property shouldn't be foreclosed upon.
After a person files an answer, a hearing date is set. At the hearing the lender's attorney will be present and the borrower may tell the judge the reason for the default. By filing an answer, you have insured that a Clerk’s Default and a Default Judgment will not be entered against you without an opportunity to be heard.
Please see the following Rule of Civil Procedure to determine applicable time periods:
Rule 1.090. Time
(a) Computation. In computing any period of time prescribed or allowed
by these rules, by order of court, or by any applicable statute, the day
of the act, event, or default from which the designated period of time
begins to run shall not be included. The last day of the period so
computed shall be included unless it is a Saturday, Sunday, or legal
holiday, in which event the period shall run until the end of the next
day which is neither a Saturday, Sunday, or legal holiday. When the
period of time prescribed or allowed is less than 7 days, intermediate
Saturdays, Sundays, and legal holidays shall be excluded in the
computation.
(b) Enlargement. When an act is required or allowed to be done at or
within a specified time by order of court, by these rules, or by notice
given thereunder, for cause shown the court at any time in its discretion
(1) with or without notice, may order the period enlarged if request
therefor is made before the expiration of the period originally
prescribed or as extended by a previous order, or
(2) upon motion made and
notice after the expiration of the specified period, may permit the act
to be done when failure to act was the result of excusable neglect, but
it may not extend the time for making a motion for new trial, for
rehearing, or to alter or amend a judgment; making a motion for relief
from a judgment under rule 1.540(b); taking an appeal or filing a
petition for certiorari; or making a motion for a directed verdict.
(c) Unaffected by Expiration of Term. The period of time provided for
the doing of any act or the taking of any proceeding shall not be
affected or limited by the continued existence or expiration of a term of
court. The continued existence or expiration of a term of court in no way
affects the power of a court to do any act or take any proceeding in any
action which is or has been pending before it.
(d) For Motions. A copy of any written motion which may not be heard ex
parte and a copy of the notice of the hearing thereof shall be served a
reasonable time before the time specified for the hearing.
(e) Additional Time after Service by Mail. When a party has the right
or is required to do some act or take some proceeding within a prescribed
period after the service of a notice or other paper upon that party and
the notice or paper is served upon that party by mail, 5 days shall be
added to the prescribed period.
The following are FL statutes:
702.01 Equity. —
All mortgages shall be foreclosed in equity. In a mortgage
foreclosure action, the court shall sever for separate trial
all counterclaims against the foreclosing mortgagee. The
foreclosure claim shall, if tried, be tried to the court
without a jury.
702.07 Power of courts and judges to set aside
foreclosure decrees at any time before sale. —
The circuit courts of this state, and the judges thereof at
chambers, shall have jurisdiction, power, and authority to
rescind, vacate, and set aside a decree of foreclosure of a
mortgage of property at any time before the sale thereof has
been actually made pursuant to the terms of such decree, and
to dismiss the foreclosure proceeding upon the payment of
all court costs.