I Got a Florida Foreclosure Lawsuit: What Now?

Most of the time, people call me in time when they’re served with a lawsuit. But often enough, they wait until the last minute or beyond. Usually, they’re sticking their head in the sand, ignoring the problem, deluding themselves into thinking that there’s nothing they can do — or nothing they should do. It’s only when things get real that they get moving. In a foreclosure case, that’s usually a few days before the home they’re living in is going to be sold, or at best a week before summary judgment. But if you wait that long, chances are, it’s too late.

A recent Florida appeals case (Phadel v. Deutsche Bank, 83. So. 3d 893 (Fla. 4th DCA 2012) illustrates this all too common scenario. The homeowners failed to defend themselves and a foreclosure judgment was entered. Later, they asked the judge to vacate (cancel) the judgment. They even had what appeared to be good defenses, but they didn’t raise them at the onset, and the Court said, to paraphrase, “too bad, so sad, next case.” Don’t make that mistake.

Being an attorney, let me lay out an exception to the rule. If there’s real fraud (not ‘they don’t have the note’ “fraud”) or if the bank didn’t serve you properly you might have something even very late in the game. But don’t count on it.

A lot of people think that “since the bank doesn’t have the note, they can’t foreclose”. There are many issues with this statement, but my main concern is that people are being led to believe that they don’t need an attorney, because, well, the judge won’t let the bank take my house when they don’t even have the note, right? Wrong.

Judges are not and usually should not be advocates for either side. The judge isn’t your lawyer. He is not the bank’s lawyer either. When you don’t defend yourself, the judge is usually not much more than a ministerial paper-signer (with all due respect to the judges). You have to defend yourself, and I promise you, you don’t want to go it alone.

On the balance, defending a foreclosure is a solid economic investment. But if you do nothing, or wait until it’s too late, don’t count on the judge, or anyone, coming to your rescue.