Thursday, January 16, 2014



Pro se legal representation refers to the instance of a person representing himself or herself without a lawyer in a court proceeding, whether as a defendant or a plaintiff and whether the matter is civil or criminal. Pro se is a Latin phrase meaning "for oneself". This status is sometimes known as propria persona (abbreviated to "pro per").

Florida is a judicial state when it comes to foreclosure. That means your lender has to sue you in court in order to foreclose on your property. In a non-judicial state such as Georgia, the mortgage document contains a "power of sale clause". The clause gives the lender preauthorization to sell your property without a court order.  If you've just been served a foreclosure summons, do not panic. Your worst mistake would be to ignore it. If you do not respond to the complaint, you've given an easy victory to the mortgage company. Usually you have 20 to 30 days to respond; if you do not respond, a default judgment will be entered against you, and eventually you will lose your house..

Florida is a judicial state when it comes to foreclosure. That means your lender has to sue you in court in order to foreclose on your property. In a non-judicial state such as Georgia, the mortgage document contains a "power of sale clause". The clause gives the lender pre-authorization to sell your property without a court order.  If you've just been served a foreclosure summons, do not panic. Your worst mistake would be to ignore it. If you do not respond to the complaint, you've given an easy victory to the mortgage company. Usually you have 20 to 30 days to respond; if you do not respond, a default judgment will be entered against you, and eventually you will lose your house.

You must file an answer or a motion to dismiss within that time frame. Most people are intimidated by the judicial system. If you can overcome your initial fear, you will be immensely rewarded regardless of whether you win or loose. You must be prepared to leave behind the idea that a) the law is about justice b) that all attorneys are honest and follow the law c) that judges must take the side of justice. U.S judicial system is based on an adversarial contest between the plaintiff and the defendant. The judge has to be impartial to both parties. If the plaintiff cheats and lies in court, don’t expect the judge to intervene. It is the responsibility of the defendant to raise the issue. For that reason, you must be vigilant at all time and never trust the authenticity of anything the plaintiff attorney presents. Your weapons are statutory lawscase laws and the rules of civil procedure. Rules of civil procedure dictate the manner in which the lawsuit must proceed. Like in any game, the opposing party will try to bend the rules and cheat. Knowing the rules of civil procedure is crucial to your success. If you don't master the rules of civil procedure, your opponent will cheat without you being able to challenge the foul play. You can obtain a copy of the rules of civil procedure in your state for free. Nolo's book on self-representation should be read by every pro se. Chapter 8 and 9 are particularily important to learn.
To buy time, you can file a Motion for Enlargement of Time or a Motion to Dismiss. You can ask for 20 extra days to file your answer. Sample pleadings are available on the Pleading section of this web site.
Call your county courthouse and get the contact info of the judge assigned to your case. Write down the name and address of the Judicial Assistance for the judge and the clerk office. Some courts allow you to file by mail; you can also go directly to the courthouse to have your documents filed. A copy of each filing must be sent to the plaintiff attorney and in some cases the judge requires a courtesy copy sent to his office. Call the judicial assistance for more information.

Anatomy of A Foreclosure Complaint

You've been served a foreclosure summons. That means the bank is suing you to get the property that secured your loan. With the summons, you will find the complaint detailing what you're being sued for.
The foreclosure complaint is made of several parts.
  1. Style of the case: this is the section that list the plaintiffs and the defendants. For example  "BANKSTER BANK VS JOHN SMITH";
  2. The case number;
  3. The title;
  4. An introductory  paragraph;
  5. Numbered paragraphs;
  6. Demand for relief;
  7. Certificate of service;
  8. A signature block.

Live Cycle of a Foreclosure Lawsuit

Most foreclosure lawsuits follow similar pattern. This pattern is comprised of several stages:
  1. Pre-answer stage: At this stage, the defendant files several motions to dismiss before filing his/her answer. The pending motions to dismiss toll the time to answer the complaint. This technique can delay the foreclosure process for several months.
  2. Post-answer Stage: Once all the motions to dismiss have been heard and ruled upon, the defendant will be ordered to file an answer. Once an answer is filed, the plaintiff will most likely move for a summary judgment. A good defendant will vigorously oppose the summary judgment motion. The motion will most likely be denied or overturned on appeal. Once the plaintiff responds to defendant answer, the case is technically at issue. Sometime plaintiff will send a notice to the court declaring that the case is at issue; at that point the court can schedule a trial at anytime. According to Florida Rule of Civil Procedure 1.440, a case is at issue after any motions directed to the last pleading served have been disposed of.
  3. Discovery Battle Stage: At this point, each party will try to build their case with discovery. This is a time consuming process and emotionally exhausting. It is a battle of contrition. The defendant must be patient and persistent.
  4. Settlement Stage: There are two ways the lawsuit will be resolved. Either the parties settle, or the matter go to trial. The defendant should never negotiate in a position of weakness. Let the plaintiff make an offer. Defendant should always be ready to go to trial and prepare for appeal. The way to prepare for appeal is to make timely objections, obtain a ruling on the objections and always have a court reporter present at each hearing and trial.

Foreclosure Defense Road Map For Judicial States

1) You’re at least three months late on your mortgage payment.
2) The servicer or “lender” sends you a Notice of Default
3) Send a Qualified Written Request to the loan servicer. They have twenty days to acknowledge receipt of your request; then they have sixty days to provide the information demanded.
4) You receive a foreclosure complaint. You have 20 to 30 days to file a response to the complaint. Check the document for exact deadline. Failure to timely respond to the complaint will result in a default being entered against you. In a sense, you’ve given an easy victory to the plaintiff.
5) If the plaintiff is a trust, a defunct bank, or a bank not registered in your state, file a “Motion to Dismiss For Lack of Capacity”.
6) If the plaintiff is an entity from another state and did not post a cost bond, file a “Notice of Failure of Plaintiff to Post Non-residential Cost Bond”. After twenty days if plaintiff has not posted the cost bond, file a “Motion to Dismiss For Failure to Post Cost Bond”. Schedule a hearing and bring a court reporter to the hearing.
7) If there is no assignment from the original lender to the current plaintiff, file a “Motion to Dismiss For Lack of Standing”.
8) If plaintiff files an “Affidavit of Amount Due and Owed”, file a “Motion To Strike Affidavit of Amount Owed”.
9) If plaintiff files a Motion for Summary Judgment, file an “Affidavit Opposing Summary Judgment”.
10) Send your interrogatories. If plaintiff does not answer the interrogatories in a timely manner, file a “Motion to Compel” and schedule a hearing. Make sure to bring a court reporter.
11) File your answer, affirmative defenses and counter-claims if necessary.
12) Request for production of documents.
13) Schedule deposition to depose affiants.
Understanding the rule that the court of appeal uses to determine the merit of a case is very instructional. Watching appellate court oral arguments videos will increase your knowledge of the process and help you properly preserve the record for appeal.

The Power of Affidavits in a Lawsuit

An affidavit is a written statement confirmed by oath or affirmation, for use as evidence in court. It allows one party to make out of court statements without being challenged. The real danger of affidavits arises when the opposing party ignore it or fail to challenge it with an opposing affidavit. Unfortunately, most pro se litigants don't understand the rule and fail to challenge an affidavit.
An unchallenged affidavit has more power than any non-sworn document or argument a party may file. So, when the bank schedules a summary judgment hearing, it is likely to win when the homeowner does not object to its affidavits. The judge is pretty much limited as to whether to grant the summary judgment (SJ) or not. All the legal elements for summary judgment are present.
The homeowner will argue with the judge without realizing that he/she has not put a strong legal defense against the SJ.
The most common affidavits filed by the pretender lenders (PL) in a foreclosure are:
  • Affidavit of Amount Due & Owing
  • Affidavit of Attorney's Fees & Cost
  • Affidavit of Reasonable Attorney Fees
 Every single one of these affidavits must be objected to as soon as they are filed. You also have the right to depose the affiants of any affidavit filed with the court.
A homeowner can also use affidavits to his advantage. For instance if the homeowner has personal knowledge of a matter, he can file an affidavit with the court. The pretender lender will have hard time effectively challenging his affidavit because they will have to counter it with statements from someone at the company who has personal knowledge of the case; which is a heavy burden for pretender lenders.

How to Find a Competent Foreclosure Attorney

If you can afford an attorney, it is advisable to hire one to defend your foreclosure. The big “if” of course is affordability. Having said that, we should keep in mind that all attorneys are not created equal. An incompetent attorney can cost you money and your case; there are enough of them to be wary. Here is some advice in finding a good foreclosure attorney.
Once the initial foreclosure complaint is filed by the plaintiff, your name and address will become public record and will be available for mass mailing. You will certainly receive numerous solicitations from local attorneys. Armed with the solicitation letters, go to your county clerk web site and do a party search on some of the attorneys on your list. Some counties’ system allows you to do searches by parties; some systems do have that functionality. Once you’re able to pull a list of cases with the attorney as a defense counsel, check the docket entries. Has the attorney been fighting vigorously for his/her clients?
By reviewing a few cases, you can determine how good an attorney is.
Has he files any pre-answer motions?
Has he filed any affirmative defenses and counter –claims?
Was he persistent in his discovery method?
What is his win/lose ratio?
If you want more information beyond dockets review, go to the court house and request to see the files you’re interested in. Read the pleadings filed by the attorney. You can even make copies to take home. Once you feel comfortable with an attorney’s competence, then you should make the jump. There is no guaranty, but at least you made an educated guess.
If you still need a lawyer who "gets it" in Florida, feel free to contact me for reference.

Get Organized

As a pro se defendant, you can easily be overwhelmed by the sheer amount of information and papers being generated about your case. If you don't manage the flow of information efficiently and in a systematic way, you could make serious mistake down the road. One should purchase a) 1 1/2 binder b) 3 hole paper punch.
When you receive any document, punch and file it in the binder. That way you have everything in one place and easy to browse. You're going against professionals, so be professional in your organization.

How to Prepare For a Court Hearing

You first need to confirm at least 24 hours before the hearing that the court reporter will be present at the hearing. Write down the key points of the motion on a piece of paper.  Each argument should be summarized in one sentence. Familiarize yourself with the arguments. Bring three copies for each case law you plan to use to support your argument; give one to the judge, one to the opposing council and one for yourself. When it time to talk, go over each argument one by one. Do not allow the opposing council to interrupt you. If he/she does interrupt, say "excuse me, I am not done yet".
If the judge ask you a question you don't know the answer to or don't want to answer at this time, just say "You honor, I stand on my pleading."
Do not be forced to say things you don't want to say.
Dress professional. I recommend wearing a suit and tie for men. Appearance does matter.
Don't be intimidated; you have every right to be there.

New Foreclosure & Real Property Filing Fees

Effective June 1, 2009 for a new civil action in Florida circuit court relating to real property or mortgage foreclosure, the following filing fees shall apply:
  • For a claim where the value is $250,000 or more: $1,906.00
  • For a claim where the value is more than $50,000.00 but less than $250,000.00:$906.00
  • For a claim where the value is $50,000.00 or less: $401.00
 If you can't afford these fees, file an application for indigent status with the clerk of the court.

Book Recommendations

For pro-sers who are serious about taking their legal education to the next level, these books will be a good start.
  • Foreclosures by National Consumer Law Center
  • Truth in Lending by National Consumer Law Center
  • The Cost of Credit by National Consumer Law Center
  • Consumer Law Pleadings by National Consumer Law Center
  • Trawick's Florida Practice & Procedure by H. Trawick
  • Trawick's Florida Practice & Procedure Forms by H. Trawick
  • Florida Appellate Practice by Philip J. Padovano
  • Florida Civil Practice by Philip J. Padovano
  • 23 Legal Defenses to Foreclosure by Troy Doucet
  • Structured Finance & Collateralized Debt Obligations by Janet M. Tavakoli
  • Legal Research: How to Find & Understand the Law by Stephen Elias & Susan Levinkind
  • Business Law by Robert W. Emerson, J.D.
  • Civil Procedure: A Contemporary Approach by A. Benjamin Spencer
  • Behind The Black Robes: Failed Justice by Barbara C. Johnson
  • Stop Foreclosure Now by Lloyd Sega
  • Berman's Florida Civil Procedure by Bruce J. Berman
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