WHAT DO I WRITE IN A foreclosure summons, then where do i take it
With all due respect, I disagree with Mr. Araujo. In Florida state court what is required is a "response." A "motion for an enlargement of time" is a valid response for you to file on your own, protecting your rights and preserving all the defenses that may exist that you are likely unaware. Filing an answer may waive a valid defense if not comprehensive or created in haste. Then consult with an attorney who can read the complaint and file the appropriate pleadings to properly fight your case.
Mr. Araulo is not licensed to practice law in Florida and I would be wary of his forms. Please see the local legal aid folks for a proper form or email my office.
I suggest you speak to a foreclosure defense attorney.
Also, I suggest you contact your local legal aid office.
The key is to respond to the summons. An answer is a particular type of response and you will need the advice of a lawyer to know whether you need to file an answer or a motion, such as a motion to dismiss, as your opening salvo. If you cannot locate an attorney in time, the legal aid people may be able to give you a form response requesting an enlargement of time in which to respond properly. This will register you as having responded, protecting you from a default judgment, and get you more time to investigate your options.
Attorney Mosca gives you good advise. However taking legal matters into your own hands can be a dangerous thing. It is much cheaper to hire an attorney than to lose your home (and corresponding expenses).
If you file a motion for enlargement of time please be sure to call the court (judge) and "set it" for hearing. There is some tricky case law on allowing the motion to "linger" without further action on your part.
I EMPHATICALLY disagree that the next step is to file an Answer. That is not correct. Unfortunately, when people or attorneys file an Answer in Florida, that usually has the effect of waiving the right to raise numerous defects in the Complaint.
No one can advise you what to write. If you care how this turns out, you cannot possibly respond to the Complaint served with the Summons on your own with any realistic chance of success.
There is no one who can properly advise you how to respond without a detailed analysis of your case and all the issues reltating to it by an attorney who is highly experienced in defending foreclosure cases. Every case is different, there is no one size fits all answer to this question, it would depend on the exact details and legal issues in your case. Only a really qualified foreclosure defense attorney will know how to even figure out what those are.
Serious foreclosure litigation is extremely difficult and complicated. This is not something that even most attorneys know how to do. We have clients who are themselves attorneys, yet have come to us for help because they understand this, and realize that in order to have a chance against the "big guys" they need really qualified people to help them.
The first thing you need to do if and when you get sued is file an Answer. The summons will tell you that you must “appear” by way of an Answer in 10, 20 or 30 days, “depending on the method of service.”
PLEASE CHECK THE LAW IN YOUR STATE AS YOU MAY ACTUALLY HAVE TO APPEAR IN COURT, AS IN VIRGINIA, IN ORDER TO AVOID A DEFAULT!
You need a lawyer, but if you cannot afford one right away, rather then do nothing and have a judgment entered against you, is to “appear” by filing something!
Many people think this means they have to go to Court and this is incorrect. 90% of all lawsuits end in Default Judgments because the defendant (person getting sued) did not file an Answer.
I recommend you go to the free form I have on my website. Print it out and fill it out as instructed. You must answer the numbered paragraphs on the Complaint by writing them into the appropriate lines in the Answer. The Answer will allow you to preserve your rights and will prohibit a default judgment (i.e. you did not show up) from being entered against you.
Mimic the paperwork you got when you got sued. Answer all the paragraphs of the Complaint by writing the numbers in lines 1, 2 or 3.
Almost 100% of attorneys will deny what is owed because they did not do the calculations and do not know what the basis for the number is…
When you file the Answer that is your “not guilty”. You have the right to make the person suing you (Plaintiff) prove their case, but you must also answer the complaint truthfully.
Make sure you fill in the name and address of the attorney suing you before you bring this paperwork to the Court. Mail it to the attorney suing you right away!
Check out the guide I have drafted on the Avvo profile. This will provide more detailed instructions. If it is helpful remember to indicate that and get the guide read!
Disclaimer: This answer does not constitute legal advice. I am admitted in the States of New York, New Jersey and Massachusetts only and make no attempt to opine on matters of law that are not relevant to those three States. This advice is based on general principles of law that may or may not relate to your specific situation. Facts and laws change and these possible changes will affect the advice provided here. Consult an attorney in your locale before you act on any of this advice. You should not rely on this advice alone and nothing in these communications creates an attorney client relationship. The opinions expressed herein are those of the author only and the fact that he has worked as an Assistant District Attorney; State Supreme Court Clerk; Special Assistant United States Attorney (Hawaii); Assistant Cornell University Counsel or Judge Advocate, United States Marine Corps should not be relied upon to assume that these statements reflect the policy of these organizations.
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