In the current Florida foreclosure climate, two strategies in particular can be helpful in attacking the lender’s foreclosure complaint. The first strategy involves inquiring into the specific amount due and conducting discovery on that issue. Often with adjustable rate mortgages, the true calculation of the amounts due can be complex and difficult for the lender to prove. Additionally, if the owner of the debt has changed since loan origination, it may be difficult for the lender to authenticate and admit records into evidence to show the actual amounts due.
A second useful strategy deals with conditions that must be satisfied prior to foreclosure. In FHA mortgages, U.S. Department of Housing and Urban Development regulations often dictate specific actions that a lender must complete prior to filing a foreclosure case. In most non-FHA loans, lenders are often required to send a notice of default prior to acceleration of the debt and foreclosure. Defenses and discovery focused on whether any applicable pre-foreclosure requirements were met may be helpful in determining whether the lender’s case has been appropriately filed.
If you have successfully used either the strategies described, you might be the prevailing party in the foreclosure case. In Florida, consumers who have prevailed in a foreclosure case have two powerful tools to recover their attorneys’ fees and costs. The first is Florida Statute § 57.105 (7), which states that if a party sues under a contract that entitles the suing party to fees, the suing party may be required to pay the defending party’s attorneys’ fees when the suing party loses. This statute is often referred to as allowing for “reciprocal fees.”
Similarly, Florida Rule of Civil Procedure 1.420 (d) states that if a suing party voluntarily dismisses its action against the defending party, the defending party is entitled to recover their costs incurred during the lawsuit.
In order for Florida Statute § 57.105 (7) to be properly utilized, a claim for fees under § 57.105 must be properly raised in the pleadings and the defendant must be deemed to be the “prevailing party.” Even a prevailing defendant in a foreclosure case may not be entitled to reimbursement for its attorneys’ fees in the absence of pleading entitlement to the fees in writing. In order to properly assert claims for attorneys’ fees and costs, a motion must also be filed in a timely manner under the Florida Rules of Civil Procedure.
LeavenLaw is skilled in raising the defenses described as well as all other applicable defenses in your specific situation. If you have been served with a foreclosure case or anticipate you will be involved in a foreclosure case, call LeavenLaw today at 1-855-Leaven-Law for a free consultation to discuss your options and learn what defenses you may have to foreclosure.
