The Foreclosure Case Is Set For Trial ? Part II
This is Part II of this Article. Click here to read Part I.
While the clearance rate of foreclosure cases improved from 40% to 78% in 2009 based on the policies implemented in Lee County, at what expense were these cases resolved? With so many lenders coming out admitting their wrongdoing in foreclosure filings, I’m curious to know how many people wrongfully lost their homes in the blink of an eye. How many of these homeowners, who may have suffered temporary financial setbacks, could have been able to work something out with the banks if they were just given a little more time? I think we would all be surprised at the number.
What about the cases getting set for trial? What about these 74 cases set for 15-minute, non-jury trials? As I sat in court that day, I did not see one single case go to trial.
There were several reasons for that, and several things can happen if your case gets set for trial: Plaintiff can notice their Motion for Summary Judgment prior to trial (If granted, the case is over. Homeowner loses the house); with enough argument, generally from both the Plaintiff and Defendant together, the case could get continued (There needs to be a solid basis for the continuance, although it would seem as if inadequate preparation time should suffice); the case could go to trial (If Plaintiff wins, homeowner loses the house.
If Defendant wins, Plaintiff can stay in the home but will risk another lawsuit. Perhaps there would be more time to work on a modification if that is the desired result); or the case could get dismissed (Plaintiff can file a voluntary dismissal, where they reserve the right to file the suit against the homeowner.
If Plaintiff is not prepared to go to trial, the Court may ask Plaintiff either to file a voluntary dismissal or will make a ruling based on the lack of evidence presented. Either way, the result is the case is dismissed. The homeowner stays in the house and faces the lawsuit being refiled against them).
Out of the 74 cases set for trial that beautiful sunny morning in Southwest Florida, there were a handful of uncontested cases which called for a witness to testify very briefly. There was another small group of cases that got continued based on outstanding issues between the parties.
But the majority of cases set for trial that day were dismissed, either by the Plaintiff or the Court, because the parties just were not ready for trial. The effect this has on the court system still isn’t known since it is just now happening. But it’s easy to predict – for the homeowners who now have more time to work something out with the lenders and successfully do so, their cases should never wind up again in the system.
However, for the majority of the cases that are being dismissed, rushing them through the process like this only causes further delay. They will now have to be refiled and prosecuted all over again, thus clogging up the court system further down the road. Then we’ll be back where we started.
How do we get out of this vicious cycle? My suggestion is if you are interested in keeping the home and want to work on modifying the loan, start early and don’t stop. Keep calling. Keep sending documents. Keep track of what you’re doing.
The sooner you get started, the better. Generally, an attorney is better-equipped to handle the litigation part of your foreclosure case. Just keep your attorney updated. Allow them some time to do the same for you. The entire process can end up being rewarding for all parties if given a little time to negotiate.
If you have been served with a foreclosure lawsuit, I urge you to come and see one of our attorneys for a free initial consultation. Tell us your story. We’ll see what we can do to make this as painless a situation as possible for you.
This blog was written by Danielle Zemola, Esq. of The Dellutri Law Group, P.A. Ms. Zemola defends homeowner in the foreclosure process and in the Bankruptcy Court.
