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Went to foreclosure trial on 5-10. opposing counsel did not have the note. but the judge gave them another week to produce it

Miami, FL |
Filed under: Foreclosure Real estate

the excuse was it was being fedex. now im scheduled to go back tomorrow. and the note has not been produced to my attorney. can I call the judge's office and complain. since they are not complying with his own orders for discovery

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Attorney answers 4


No. The judge is not permitted to speak to only one side about a case. This is called an ex parte communication. It is extremely disturbing that the judge did not follow the law on the trial date by requiring the plaintiff to prove its case, and it is disturbing that no request was made to require them to provide your attorney with the opportunity to view what they supposedly received via FedEx prior to showing up in court with it.

Please note that the above is not intended as legal advice, it is for educational purposes only. No attorney-client relationship is created or is intended to be created hereby. You should contact a local attorney to discuss and to obtain legal advice.


No, you would just go to the trial tomorrow and argue that Judgment should be issued in your favor if the Plaintiff cannot produce the original note.

Leonore M. Greller

Leonore M. Greller


the attorney can also file a lost note affidavit and the judge will order the sale


Without the note there will be a defect in the lender's proofs. Do you have an attorney who is representing you at trial? If so, why are you posting here? If you don't have an attorney, then at the close of the bank's case-in-chief you should ask the court to dismiss the action for failure to state/prove a claim. Good luck.

This answer does not constitute specific legal advice or create an attorney-client relationship between Glenn R. Reiser, Esq. or LoFaro & Reiser, LLP and the individual or company whose posts we are responding to.


No. As the other attorney's have stated, a judge may not speak with one side of a case without the other side being present. Also, it is bad form to informally complain to a judge about the enforcement of an order. If the other side can't produce the note then the judge will eventually rule in your favor anyway. No need to aggravate him/her by rushing them. If the bank actually has the note and they just need more time to produce it, the judge is likely to give it to them.
If they do produce the note, make sure to scrutinize it as well as the assignments to make sure that everything is in order. Good luck.

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