In Florida a foreclosure action is an action in Equity, before a Judge, without a Jury.
BUT... if Plaintiff also pleads a count to “Re-establish a Lost Note’ you are entitled to a jury trial.
You must demand one in your ‘Answer and Affirmative Defenses’, or your amended version of
the same. For example:
DEMAND FOR TRIAL BY JURY
Defendant hereby demands trial by jury on count X of Plaintiff’s complaint. (Where X is the number of the count in the complaint for the reestablishment of a lost note)
In my case, when the Plaintiff moved to strike my demand for a jury trial, I filed the following memorandum of law:
MEMORANDUM OF LAW
The Defendant has, by way of plead Answers and Affirmative Defenses, demanded a Jury Trial. When a plaintiff brings a count “in law and in equity” to re-establish a note and for deficiency judgments against defendants the defendants have a right to a jury trial:
“A bill of complaint to re-establish a lost note and to have a personal decree againstthe defendant for the amount of debt to be evidenced by the re-established note is without equity, because the lost instruments may be established by secondary evidence at law as in equity and the defendant is entitled to a jury trial upon the instrument itself.” Staiger v. Greb, App. 3 Dist., 97 So.2d 494 (1957).
The above cited case is attached to this memorandum of law as “Exhibit A” of this memorandum. Defendant has shepardized the case and it is still good.
There is no dispute that in the instant case Plaintiff’s pleadings seek to re-establish a lost note and to have a “deficiency judgment”, a ‘personal decree’, against the defendants, so the defendants are within their rights to demand a jury trial.
Jxxxx Myyyy, Defendant (pro se)
The court agreed with me, and ruled that I was entitled to a Jury Trial.
The plaintiff must then prove the execution, terms and ownership of the lost note, to a Jury, and get a win on that before preceding with a foreclosure.In the current climate the Plaintiff’s really don’t want to risk a jury trial on re-establishing a lost note. Especially since the note was probably not lost, but deliberately shredded.
A pending jury trial may provide you and your counsel more leverage in negotiation.
In my case, after the court ruled I was entitled to a Jury Trial on the lost note count, the Plaintiffs mysteriously and very quickly ‘found’ the note they claimed they could not find by diligent search, and wanted to drop the count to ‘re-establish a lost note’ like a hot potato.
Maybe this is why we are noticing some forged notes are appearing in the hands of the Plaintiffs.
Plaintiffs will do anything to avoid a Jury Trial, maybe even enter into a written agreed and binding modification, not just a trial period.