Forum Rules (Everyone Must Read!!!) (updated: 04/28/2015)

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Foreclosure - Pro Se Defenses

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  • Foreclosure - Pro Se Defenses

    Hi All,
    Its been awhile since i have been on this excellent forum, back in 2010/11 when i was filing and eventually discharged on my Chapter 7. I surrendered my primary residence in Florida as part of the discharge and stopped paying mortgage/taxes/insurance since early 2010 although i kept up on my maintenance fees up to present. As of July 2014, BofA started the foreclosure filing on the property and it took awhile before it got to the point that i needed to respond as i was never originally served causing more delays. As of 9/25/15 i was formally served (now that i reside out of state) and i responded with a form i found online for a Motion for Enlargement of Time. That motion was just scheduled today for a hearing on Dec 7, 2015. I have a few questions for anyone who can help:
    1. Do i need to appear for the trial/case? If not, does it make any difference on the result
    2. I have a second motion/answer ready to go for mailing with is another document i found online that has a whole list of defenses. I'm wondering if i should send this in one swoop, or should i send one defense line item at a time (there are a total of 17 defenses in the document)? (example shown below)

    My goal in the matter is to delay the foreclosure sale as much as possible. thanks for any assistance.

    Examples of Motion #2:
    Defendant(s) admit(s) all matters known to be of public record with the exception of any assignment or other transaction of the subject note and mortgage subsequent to Defendant’s/Defendants’ execution thereof. Further, Defendant(s) otherwise denies/deny, in part for lack of knowledge, each and every other allegation contained in the Plaintiff’s Complaint. Further, Defendant(s) demand(s) specific proof on the allegations contained in the Complaint. In response to any averment in Plaintiff’s Complaint concerning compliance with conditions precedent, including: the acceleration of the remaining balance on the note and/or compliance with applicable federal law, including the U.S. Code, Code of Federal Regulations and directives of Federal officials, Defendant(s) specifically denies(deny) the same with particularly in the following defenses.

    1. Plaintiff has failed to state a claim upon which relief can be granted.
    2. Plaintiff lacks standing and/or capacity to sue, including lack of
    privity and/or no right to enforce the note and/or mortgage against Defendant(s).
    3. Plaintiff is not the real party in interest.

  • #2
    Why do you want to delay foreclosure if you no longer live there? I would think you would want them to foreclose so that you don't have to continue to pay the maintenance fees (which I assume are HOA fees that you remain on the hook for even though the mortgage was discharged in BK).

    The following is based on my general knowledge of civil procedure, not on foreclosure experience or any knowledge of Florida law.

    If you don't appear at the hearing on your motion, unless your motion presented clear evidence that you are entitled to an extension of time to answer that the lender cannot argue against, you will probably loose your motion and a default will be entered if you don't file your response on time.

    A general denial is not a motion, it is a response to the complaint. You should raise all available defenses. Be careful! Your response will be under penalty of perjury. So, depending on the laws in your state, if you raise a defense that you know is not true, you could cause problems for yourself. Also, make sure you understand and follow Florida rules of civil procedure (or whatever they call it in Florida).
    Last edited by LadyInTheRed; 12-04-2015, 12:15 PM.
    LadyInTheRed is in the black!
    Filed Chap 13 April 2010. Discharged May 2015.
    $143,000 in debt discharged for $36,500, including attorneys fees. Money well spent!


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