Facing Foreclosure in Florida? Getting Deposition Testimony of the Bank Is Critical to Your Defense

Posted By on March 17, 2015

Here in South Florida, a healthy number of foreclosure lawsuits are still being filed every week causing lots of stress for home owners. Sadly, many of these home owners have thrown their hands up at trying to deal with their bank and have simply given up trying to save their home (including walking away); they are so exhausted that they are not even trying to fight the lender and mount any type of foreclosure defense.

Florida leads the country in the number of “zombie foreclosure” properties. A zombie foreclosure is where the owner has stopped making mortgage payments, and has left the home or condo, and the bank or mortgage lender does not take legal title or legal ownership of the home or condo. The property is said to be in a “zombie” status.

According to a February 2015 study by RealtyTrac®, in its “Q1 2015 Zombie Foreclosure Report” there were more zombies in the number of total foreclosures (25%) than there were a year ago. Florida led the nation in the number of zombie foreclosures, with 35,903 zombie foreclosures and with 26% of all the Florida foreclosures being zombie foreclosures.

Is Defending a Florida Foreclosure Still Important?

For Florida foreclosure defense lawyers, this is both a sad and frustrating situation. We understand the emotional toll that comes from dealing with a lender in a foreclosure fight and how tempting it is to walk away and leave them to take your home. Trying to negotiate or work out an arrangement to save your home with some lender representatives can be maddening for anyone — we get it.

However, before someone just leaves and lets the bank run free regarding the foreclosure, it’s important to get the bank to confirm its position or prove its legal standing to pursue the foreclosure. All too often, these foreclosure lawsuits are defective; either the paperwork is defective or its lost or it just doesn’t make sense.

Deposition testimony is taken before trial but carries the same weight of authentic evidence as sworn testimony on the stand.

Is Getting the Bank’s Deposition Testimony Important?

One tool that Florida home owners can use in defending against foreclosures — before they walk off in frustration — is to have their foreclosure defense lawyer take the deposition testimony of the duly authorized representative of the financial institution that is the plaintiff in the foreclosure lawsuit.

This is done by serving a notice to the bank in the foreclosure case that the home owner wants to take the  sworn testimony of a bank representative. This notice can be filed “duces tecum,” which means that the bank’s chosen spokesperson is subpoenaed to bring all its files and paperwork for review and questioning by your foreclosure lawyer.

It is here — in the deposition of the Bank — that the foreclosure defense attorney can find holes in the Bank’s claims regarding their legal rights to sue for foreclosure as well as problems with the filing itself and the procedures that the bank has followed in trying to foreclose on the property.  (Did the person endorsing the note have the authority to do so – or, were all of the payments properly credited to the homeowner – or, was the correct information transferred from one payment servicer to the next, etc.)

Home Owners Need to Act Fast

Florida foreclosures are moving forward faster than they were a couple of years ago. The time lag that gave Florida owners some wiggle room on deciding what to do regarding their foreclosure defense is becoming shorter.

It’s important to act fast if you are served with a foreclosure action by your lender. Why? Banks aren’t waiting to file  “motions for summary judgment” – they are moving a lot faster in asking the court to enter a judgment against the homeowner.

What is a Motion for Summary Judgment?

When the bank files its summary judgment request, it has to provide the court with evidence that it has a right to a foreclosure judgment without the need for a full trial. It does this by providing affidavits that authenticate things attached to the motion as its exhibits to make them admissible evidence under Florida law.

If no one challenges that summary judgment motion (much less challenges the bank in a full trial), then the judge will grant that request and a foreclosure judgment will be entered on behalf of the bank.

The bank will likely get all it asks for in the Motion for Summary Judgment. That’s never good for the defendant home owner.

Here is where that deposition testimony can come into play for the benefit of the home owner: the paperwork filed by the bank can often be challenged as to whether it can provide valid support for that summary judgment (or the lawsuit itself). If your lawyer can find a fact that is in dispute, the court will likely not grant the summary judgment.  Florida foreclosure defense lawyers know what to look for here — e.g.,

  • Are there legal gaps in ownership of the loan itself?
  • Are the numbers correct? – Were all payments accounted for?
  • Did the home owner make payments under a trial modification that the bank is now not honoring?
  • Where’s the documentation (including endorsements) that proves that this bank is the rightful lender to be foreclosing in this lawsuit?

Sometimes, you will have only weeks after the bank files its foreclosure action to prepare for a summary judgment hearing. So, don’t wait!!!  Talk with a lawyer today. Most foreclosure defense lawyers, like our office, offer a free initial consultation in which they will explain the benefits of taking the deposition of a bank representative and how that testimony can be used to prevent the entry of a summary judgment or how it can help the homeowner to prevail at trial.

Picture of Larry Tolchinsky

Do you have questions or comments? Then please feel free to Chat with Larry in the comments below, at info@hallandalelaw.com, or (954) 458-8655. If you have a specific or personal situation, please call or email Larry because he can’t answer specific fact questions in general comments.

Comments

2 Responses to “Facing Foreclosure in Florida? Getting Deposition Testimony of the Bank Is Critical to Your Defense”

  1. Barbara Williams says:

    Husband & I served summons of foreclosure from ….

  2. Hi Barbara,

    Sorry this is frustrating! However, we’re not allowed to answer personal queries in blog post comments, so we ask that you give our office a call (see the toll free number above?) for a chat. (We removed your personal info in the comment for your privacy and protection.)

    Thanks,
    Larry

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