Supporting, Informing & Connecting People in Foreclosure

Florida Statutes & Case Law: FDLG's Response to Defendant's Motion to Dismiss

***I am not a lawyer. This is not legal advice. The purpose of this discussion is to provide a forum for a group of Floridians to discuss Florida Statutes and Case Law in order to gain knowledge and understanding of our legislative and judicial systems as is our civic duty.***

Tool #1: Florida Rules of Civil Procedure (FRCP) found here and here.

Tool #2: Florida State Statutes found here.

Tool #3: Case Law found in Law Libraries, online databases for a fee, and/or Google Scholar.

Some other tools:

Tool #4: Florida Handbook of Discovery (see link bottom center)

Florida is a judicial state for foreclosure proceedings. That means that a law suit is filed and a summons is served upon the Defendant. Per FRCP 1.140(a)(1), the Defendant has 20 days (including Sat & Sun, unless the 20th day falls on a Sat or Sun, in which case the following Monday is the deadline FRCP 1.090(a)) to either file an Answer or to file one of a few specific types of Motions (Motion to Dismiss, Motion for a More Definitive Statement, etc)

In March of 2009, I filed a Motion to Dismiss within the 20 days.

Thereby ensued a lot of back and forth between myself and my Plaintiff's counsel (FDLG).

They miraculously found the note, and filed a Response to my Motion to Dismiss in June 2009.

Let's read what FDLG filed in their Response and tease out all the cited case law & Statutes to see how they've backed up their case.

Continued in next post.

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Permalink Reply by L on February 1, 2010 at 1:41pm

Sample pleadings, weapons in Foreclosure Defense.

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Permalink Reply by L on February 1, 2010 at 7:58pm

Affidavits were hearsay and insufficient to render summary judgment.

Mitchell Brothers v Westfield Insurance

1st District. Case No. 1D08-5559.

Opinion filed December 31, 2009.

"The appellants objected on the
ground that the affidavit and attached schedule of payments (which
appellants argued was hearsay) was insufficient to establish damages
on summary judgment. We agree. The affidavit and attached list of
payments is insufficient to award summary judgment as they constitute
hearsay. Cf. Roggemann v. Boston Safe Deposit and Trust Co., 670 So.
2d 1073 (Fla. 4th DCA 1996) (holding that “a trial court cannot rely
on affidavits at the hearing to assess attorney's fees, since they are
hearsay”). The appellee failed to establish that the schedule of
payments was an admissible business record...."

An appeal from the Circuit Court for Leon County. William L. Gary, Judge.
Affidavits As Insufficient Summary Judgment Evidence.

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Permalink Reply by L on February 17, 2010 at 4:10pm

Conversation regarding Failure to Join Indispensable Parties (2nd DCAFlorida)

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Permalink Reply by matt weidner on February 23, 2010 at 7:30am

Just because they have note, doesn't mean that note is negotiable....look for bac funding v. us bank to be published soon.

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Permalink Reply by Monte on February 27, 2010 at 10:11pm

Never file an Answer, a MTD is the best way to go. An answer awards attorney fees. MTD is usually good for showing that there was no standing or the original lender is not the same nor were you notified that your loan had been sold/transferred (as required by Helping Families Save Their Homes Act), and that the note is not the original or lost.