Asked about 3 years ago - Sarasota, FLFlag
We filed a motion to dismiss (lost note) in Feb 09 and still no response from bank. Is there any time limit on their response?
I do not agree that the next move is necessarily to set a hearing on the Motion to Dismiss. However, it is somewhat difficult to respond to your question since it seems to contain inconsistent information. A Motion to Dismiss is a preliminary matter which needs to be resolved prior to filing an answer. The filing of an answer normally precludes a Motion to Dismiss. Accordingly, in your case, while it is difficult to say for certain, it may be that the filing of an answer, if that did happen, would moot the Motion to Dismiss.
I do agree that a Motion to Dismiss does not require a response at all. The moving party has the burden of demonstrating that the motion should prevail at a hearing before the court, UNLESS other pleadings filed in the case elminate the issue.
An Action of Foreclosure is a lawsuit, and subject to many defenses which, if raised properly, can change everything. In addition, the Florida Rules of Civil Procedure delineate the procedure which must be followed, and how different pleadings filed affact one another. There is no one who can properly respond without a detailed understanding of your case and all the issues relating to it by an attorney who is highly experienced in defending foreclosure cases. Every case is different, there is no one size fits all response or defense that would be appropriate, 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.
You have an attorney who should already be familiar with all the details and issues of your case, so you should not have to resort to posting your question on a web site. If you do not understand the answer you should tell him so, and ask him for a clearer explanation of exactly what is going on.
There is no specific time limit because there is no obligation for the plaintiff to respond, or as you say, reply. It's your motion, you have to set it down for hearing. If you haven't filed an Answer to the complaint yet, then you are delaying the process for the plaintiff. They are waiting for you to set the motion for hearing. If you don't set it down for hearing they can at their convenience. If they don't set it down, then maybe they cannot respond to your motion. Leave it alone. See what they do. As long as you have filed a legitimate motion to dismiss before filing an Answer, everything waits for the motion to be resolved. Plaintiff can't do anything until then. They can't get a default and they can't proceed without your Answer to the Complaint. I assume you don't have an attorney otherwise you would be asking him/her. It might be a good idea to "pick the brain" of a local atty who can look at your paperwork, the complaint and your motion.
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One other thought. If you did set your motion down for hearing and you won, then the plaintiff would be given maybe 10 or 20 days to amend their complaint to include the note. If they fail to do it in that time then you could ask the court for an order of dismissal and the court should dismiss the whole complaint. That doesn't mean that the lender can't refile the lawsuit later when they find or reconstitute the note. But it does buy you time.
I agree entirely with Ms. Golant, who by the way consistently gives very accurate answers to questions.
My observations are as follows: the Plaintiff will at some time make a Motion for Summary Judgment. That is a procedure where the Court looks solely at affidavits filed by the parties. If you are going to submit an affidavit it must be served on the Plaintiff's lawyer by no less than 2 days if faxed or hand delivered or 5 days if by mail.
The judge does not take testimony. The judge can only look at the record, which are the pleadings and documents in the Court file, and the affidavits.
Now, what would your affidavit say? Chances are that you will not be in a position to rebut the statements contained in the Plaintiff's witnesses affidavits, and you do not want to make a statement that is erroneous as you are under oath and do not want to commit perjury.
The Plaintiff doesn't care if you do not have a hearing on the Motion to Dismiss. It will make its Motion for Summary Judgment anyway.
There are many, many things you need to be concerned with, and here are just a few: if the Plaintiff is not the initial lender, then request documents from the Plaintiff relating to the hows and whys it acquired the note and mortgage, ask for all assignments and proof that consideration [such as money] changed hands; and also ask written questions which in legalese are called interrogatories--when did it acquire the note and mortgage, from whom, for what consideration; and did the Plaintiff have the note when it was lost or was it lost by the entity that had the note before them, and if not by them, then by whom? How far up the trail do you have to go?
If the Plaintiff is the original lender, then there is less room for inquiry, but you can still ask questions, such as when did Plaintiff realize it had lost the note, what has it done to search for it, where was it originally kept, was it ever moved, and so on.
Now, when the Motion for Summary Judgment is heard, you can also argue against it if the motion is deficient because it does not meet the requirements of the rules of procedure, even if you have not served and filed affidavits.
And then, there is the prospect that even if you do file affidavits against it that the Court may not feel that you have effectively countered the allegations in the Plaintiff's affidavits.
So, you really should sit down with an attorney to review the documents and see what there is to be seen.
By the way, just so you will know, the inability of the Plaintiff to have the original note is not in and of itself fatal to Plaintiff's case. I know that there is that simple defense talked about on TV and the Internet--make them come up with the note. But most states, including Florida have laws that allow someone to enforce a note even if it is lost. See Section 673.3091 Florida Statutes, which is the statute that the lenders are all traveling under when they can not find the note, and which permits the owner of the note to go forward even if the physical note is not available.
Good luck to you.
I would like to thank you for your time and well-considered advice.
More importantly, your free service offered here is of immense value to many of us who face daunting legal challenges, especially in this new world of foreclosures.
Thank you so much for your dedication to helping others as you do so well, and so often.
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