"What do you mean they can just move for a summary Judgment even though I have not answered the Complaint or had my Motion to Dismiss heard yet!?!"  This is a recurring question brought up to me during consultations and  even some of my follow- ups with existing clients.. 

Yes, in Florida, a party can move for Summary Judgment, and obtain a foreclosure judgment before  the opposing party has even had their Motion to Dismiss heard.  This is just another proof that defending your house takes a lot of work and legal experience.

Florida Law allows either party to move for Summary Judgment.  When filed by the Plaintiff and granted by the Court, a Judgment ordering the sale of the house can be obtained  even when a Motion to Dismiss has been filed but not heard.  The standard for this is very high though, meaning that the bank has a much higher burden of proof.  While in theory a judge should not grant these so long as a valid defense or issues of fact exist, in practice Judges are looking for something concrete from a defendant homeowner to stop the banks railroad. 

It does not have to be much, but it does have to be based on something real, preferably from the banks own records, and something other than what you've read, say or think.  An affirmative defense, with supporting affidavits, a valid ongoing discovery effort.  Once one of these is put in the courts’ record (not simply spoken at the hearing for Summary Judgment) a court, by law and rules, should not grant the summary judgment and let the case move forward to trial. 

However, none of this is in a Motion to Dismiss.  All a Motion to Dismiss does is allow a party to bring irregularities in the complaint before the  Court to see if the Judge will make the Plaintiff correct them.  Case law strongly discourages judges from outright dismissing a case, and encourages them to give the Plaintiff's a few times to amend their complaints and correct the issue first. 

Also, the Judges are restricted to reviewing the four corners of the complaint and taking whatever allegations listed there as being true.  So, as long as the Plaintiff complies with the Rules of Civil Procedure and does not plead facts that conflicts with each other , a Judge has to take them as true.

Add to this requirement to take all non-conflicting facts as true, the recent pattern of attorneys and pro-se homeowners doing half hearted defenses by filing motions to dismiss, often copied from a book or the internet (trust me the Judgesrecognize them all) that in many cases cover issues that are just not going to be applicable in a Motion to Dismiss but are simply issue spotting for latter defensive efforts.  Judges have gotten rather numb to this approach and would rather see you get up and fight for your house or get out of the way.

Defending your house takes work, discovery, motion practice, hearings, and more work, discovery, motion practice, hearings.  It does not take a single motion and then wait and hope for the Judges to "get it" and see things your way.

Shopping for an Attorney

Defending your house in a foreclosure is a BIG project.  It takes a BIG effort and a LOTS OF commitment.  Unless you are prepared to spend a good portion of your life at the local law library and catch up on the last 60 years of evidence, Uniform Commercial Code, Title, Real Estate, Foreclosure and general trial practice law along with keeping abreast of all the latest developments in this newly dynamic subject, YOU NEED A LICENSED ATTORNEY! 

However, not all attorneys are equal.  Even the sharpest criminal attorney may be flat on commercial and contract law.  An attorney with years of experience closing real estate deals may not have a clue when it comes to securitization.  A corporate attorney with decades of experience drafting contracts and business negotiations may have not seen a courtroom in as many years and only talks with Judges at local functions.  

In short, you need an attorney who both understands foreclosures, the current crisis, consumer law and litigation.  Most important, in my opinion, that attorney needs to relish going to the courtroom, and be able to engage in discovery and not avoid it.

If there's one thing that bugs me more than the banks and the foreclosure mills that are eroding our courts everyday it's the Attorneys who take on cases and do nothing other than file a few letters and maybe a motion.

Like the bottom feeders who offer foreclosure avoidance assistance and drain homeowners precious resources  in what often turns out to be fruitless efforts to get modifications that banks are not offering, these false defenders charge top dollar and do little more than what  homeowners could have done for themselves. 

Here are some things to ask for and make sure of when talking with an attorney about foreclosure defense.  All of them should be asked and answered before you decide to sign. If you don't understand the answers you are given, ask again:

• A consultation should inform you of your legal rights and clarify what the attorney will or will not do for you.  You should leave the meeting with a clear idea of the attorney is willing to do in your case, and if the attorney is willing to take your case a written contract to review before you pay any money.
  
• From the beginning you should know and understand how much will cost to hire the attorney and what does that get you.  Retainers, unless otherwise stated typically cover a defined amount of the attorney’s time, or their work to a specified point in the proceedings.  Unless specified in writing the payment of a retainer does not automatically mean that an attorney will do all the work of the case (like going to trial for example) without getting paid more.
  
• What will be the cost of going to trial?  An attorney may not be able to give you an absolute answer but the attorney should,  in accordance to the Florida Bar rules give you the formula by which her or his fees are calculated.  The attorney should also be able to give you estimates as to how much time or money your case may require if gone that far.  While these figures are by no means definitive, any attorney who states that all you'll have to spend is $1,700.00 for the complete defense of your case is either not telling your something or simply not planning on doing much in your case.
  
• WHAT IS THE DISCOVERY PLAN!  Any attorney you hire should be both prepared to explain what discovery she or he will be seeking, how they will be seeking it and, as stated above, approximately how much it might cost in additional legal fees to get it.  Discovery is the procedure by which both sides in a lawsuit "discover" and exchange information that supports or weakens their respective claims and defenses.  This can include interrogatories, request for production, depositions, subpoenas and various other methods.  THIS IS A REALLY BIG DEAL IN FLORIDA AND CANNOT BE OVERSTATED BECAUSE JUDGES WILL HONOR VALID REQUESTS. 
  
  
• What is the litigation plan?  What is the attorney prepared to do in your case?  Motions, Mediation, Summary Judgment, Trial and even smaller hearings in-between.  All of this happens in almost every litigation and in a spirited serious foreclosure defense should happen in your case too. If an attorney's contract or services do not include these then you should be weary  and look elsewhere. 
  
  
• Ask if your attorney will be present physically at all or most hearings.  It' makes a difference.
  
• Do you have to be there?  Always, find out when your attorney needs you to be present, even if it's just knowing what hearings or meetings are important.  Failure to respond, participate or otherwise co-operate with your attorney is a valid reason for your attorney to drop you as a client, and if a retainer is non-refundable, too bad for you.  I don't expect clients to be at every hearing but I do expect them to respond in a reasonable time and show up at trial and depositions.  Other attorneys will have their own standards. Know them.
  
• Last, what if you do not want to take a banks offer?  Make sure your attorney is not going to insist that you take any offer that the bank offers and that the attorney will continue to represent you if you chose to reject any offers.  An offer should be something that even if not exactly what you want, you can afford and be able to actually do.  If you can't make the payments then the offer will only delay the loss of your house and probably strip you of the chance to have your day in court over other valid defenses.  If you need your day in court because you just cannot afford what the bank is offering then your attorney should not be fixated on you taking the banks offer instead of fighting for your legal rights.