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Responding to a summons lawsuit for being in default on mortgage in Florida

Palm Bay, FL |

The home attempting to be foreclosed on was wrongfully included in the chapter 7 BK discharged in 2009, bank never sent the reaffirmation paperwork. We made several attempts to have the bank work with me with no luck. We are trying to do a loan modification again right now but we just got served the papers a few days ago. No sale date as of yet. Just need a little help with the defendant response to the summons. Any help is greatly appreciated. This is what I have so far ..
Defendant (ME) responds to the complaint as follows:
1. The defendant incorporates by reference the response filed on 4/6/20013
2. The defendant is without sufficient information to either admit or deny the allegations in the complaint and therefore denies all allegations and demands strict proof thereof.

Thoughts?

I'm really just looking to modify and get a principal reduction to market value or close to it. If that does not happen then I guess it has to go back. I need some time to try and work it out with the bank. How do I buy myself some time here? Thanks in advance for your helpful responses.

Attorney Answers 4

Posted

Count your blessings that you did NOT reaffirm the mortgage. So, at this point, the bankruptcy is irrelevant to the situation except that luckily for you, you are not personally liable for the mortgage loan.

As for Answering a complaint, a bare Answer is relatively straightforward, but there are substantial pitfalls. In addition to answering the allegations, you need to raise affirmative defenses, counter claims, and whatnot. Failure to do so will eventually be held as a waiver of those defenses and claims. As such, it is beyond the scope of this forum to advise and coach you on how to draft an answer. If you are truly "serious" about defending the foreclosure, and not just buying time, then be smart and hire an attorney.

However, as for responding to the allegations, the complaint will/should have numbered paragraphs. So, your answer will likewise have corresponding paragraphs. Defendant has only 3 answers. Important: The court expects some reasonable inquiry by the defendant and the Answer is a court pleading, so the information stated in it should be accurate to your knowledge.

1. Admit = if you "know" the allegation is true. For example, if the complaint states, the property is located at 1444 Zzyyxx St. Foreclosure Ville, FL 00000, and you know that to be true, you "admit" that allegation. If there are statements in the complaint that are true and not disputed, it is bad form and you lose credibility if you deny or use the "I don't know" response.
2. Deny = if you "know" the allegation to be false. For example, if the complaint states that the property is located in Foreclosure County but you know the property is located in Paid As Agreed County, then you would deny that allegation.
3. Lacks Sufficient Knowledge and Information...the "I don't know" response. You use this response if you are not certain that the allegation is true or false (e.g. unable to admit or deny). Which is the wording you have in your question.

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Asker

Posted

What I am really looking for is a principal reduction. I will attempt to modify until I either get a principal reduction to close to market value or the house goes back. The mortgage amount is about 80k more than what it's worth. Also looking to buy some time here as well. can't really afford an attorney. Is the letter I typed up enough to buy me some time while I try to work with the bank to modify?

Posted

Attorney Berkus gave you a fabulous and thorough response. If you are truly interested in fighting the foreclosure and keeping the home, you should hire a foreclosure defense attorney to help you draft your response - but be timely, if you don't respond within the time allotted you are deemed to have affirmed all allegations. As mentioned, though, if the home debt WAS discharged in your bankruptcy, right now you don't have any further responsibility to the bank. If you reaffirm, then you are again on the hook for the loan debt.

Carol Johnson Law Firm, P.A. : (727) 647-6645 : carol@caroljohnsonlaw.com : Wills, Trusts, Real Property, Probate, Special Needs: Information provided here is anecdotal and should not be relied upon or considered legal advice. Every matter is different and answers given here are general in nature and may not reflect current Florida law at the time you are reading this posting. Please contact me if you feel you need additional assistance with your matter.

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Carol Anne Johnson

Carol Anne Johnson

Posted

P.S. Be wary of attorneys that answer these posts with blatant self-promotion - which, by the way, is against the forum rules. But, if you need to find a lawyer in your area, the AVVO "Find a Lawyer" link is a good place to start.

Posted

The best thing you can do is retain a mortgage defense attorney. Each case and each fact pattern is different. There are so many defenses and strategies available. Our clients' cases sound similar at the beginning, but we have to flush out every possible way to get the banks to the table to resolve the matter. Having a good legal strategy pays for itself in the end. Brevard & Indian River Counties are still in the full force of foreclosures despite what the papers may be reporting!

J. Garry Rooney
Attorney at Law
Rooney & Rooney, P.A.
2145 14th Avenue, Suite 20
Vero Beach, FL 32960
(772) 778 5400
(772) 778 5290 (fax)
Attorneys@RooneyAndRooneyLaw.com
www.RooneyAndRooneyLaw.com
www.VeroLawFirm.com

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Posted

I strongly suggest that you retain a foreclosure defense attorney to help you defend the foreclosure action and assist you in obtaining a loan modification. Many attorneys on here, including myself, offer free initial consultations.

Natalie Guerra-Valdes
(954)764-7878
nvaldes@valdeslawfirmpa.com
www.valdeslawfirmpa.com

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