In Thomas v. Ocwen Loan Servicing, the Florida 1st District Court of Appeal reversed the trial court’s order granting summary judgment to the bank. Summary judgment is a proceeding where the bank come to court shows the evidence, such as the promissory, the mortgage, the assignment of mortgage, etc… If the homeowner does not raise an issue of fact with the bank’s evidence and their ability to foreclose, the court will grant the motion for summary judgment and order the house be sold at public auction. However, if the homeowner raises affirmative defenses in their initial answer or response the complaint, the bank also has the burden of disproving all affirmative defenses in order the get a summary judgment. In Thomas, the homeowner raised 23 affirmative defenses that the bank failed to refute. The trial court incorrectly granted summary judgment and the 1st DCA did the right thing and reversed the foreclosure.
What does this mean? It does not mean that the homeowner got a free home. It simply means that the bank must now refute the affirmative defenses in order to foreclose. My personal take on this is that 23 affirmative defenses sounds like the homeowner or their lawyer threw everything but the kitchen sink in their response. Using forms is fine, but you need to have the ability to back these defense up with facts. Facts are learned through discovery, such as requests for production, requests for admissions, interrogatories, and depositions. Sadly, if the homeowner or their attorney are not doing discovery, especially depositions, they will most like lose their home.
At Loan Lawyers, our foreclosure attorneys take depositions and conduct discovery in an effort to aggressively represent our homeowner clients. Call today to schedule a free consultation with a foreclosure attorney in Fort Lauderdale/Plantation, Delray Beach, North Miami Beach, or Coral Gables.
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