Posts Tagged ‘summary judgment of foreclosure’
Another MASSIVE victory- Curious Implications!?!
Author: Matthew D. Weidner, Esq.
One of the issues we’ve been hammering about for some time is the fact that virtually every affidavit submitted in support of summary judgment of foreclosure in Florida does not comply with the Florida Rules of Civil Procedure.
Specifically, I’ve virtually never seen an affidavit that complies with the rule that requires that sworn or certified copies of the books and records referred to in the affidavit be attached.
(e) Form of Affidavits; Further Testimony. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.
FLORIDA RULES OF CIVIL PROCEDURE
That’s what makes the following memo so earth shattering…..my only question is….now that one circuit has issued such a motion, will the other circuits follow? This really is an amazing development and is yet another powerful sign that our judges are listening to us and that the environment is changing for the good of us all!
Litigation Alert- Florida Default Law “Withdraws” Affidavits
Author: MattWeidner
Over the last week, I’ve received a very interesting pleading from the attorneys at Florida Default Law Group. They are attempting to withdraw affidavits that have been submitted in cases by “Jeffrey Stephans”. God only knows why they are taking this unprecedented step of trying to revoke or withdraw evidence that has been submitted in a court case, but these questions will be subject for interrogatories and depositions over the months to come.
Depending on the explanation given we will have to question whether Summary Judgments already entered based on those “withdrawn” affidavits should be set aside. Whatever the explanation given, no further Summary Judgments should be entered in cases where affidavits of Jeffrey Stephans have been filed. A real question has to be asked about whether these affidavits should just be permitted to be withdrawn with no consequence….
Keep on the lookout for these notices and look out for more information about this most interesting development and please share your intel with me!
Thanks to Ice Legal for originally sharing the deposition of Jeffrey Stephan. One can only think that Ice’s good work has something to do with this new development. Read Stephan’s depositions below:
Summary Judgment of Foreclosure Is a Privledge- NOT A RIGHT!
Author: Matthew D. Weidner, Esq.
Far too many foreclosure cases are granted through summary judgment. The standard set for the grant of summary judgment based on decades of case law is very, very high, but this procedure has become an accepted part of daily foreclosure practice. It’s time to review the Rule and the case law and compare the strict legal principles detailed in the Rule and the cases with the way foreclosure is being practiced.
Given the widespread abuses by the Plaintiff law firms and the known issues of material facts regarding evidence submitted by lenders, it’s time for us all to step back and question whether any circuit court has the resources necessary to effectively review files such that Summary Judgment is appropriate. In this rush to push cases through, critical pieces are being missed, the judiciary is being turned into a meat grinder and serious title problems will have to be addressed for years to come.
Two of the most important cases that put Summary Judgments in context were actually appealed and WON on appeal not by attorneys, but by Pro Se Advocates. That should both inspire attorneys to step up our game and not be afraid of appeals and help advocates know that they have a place in courtrooms as well. Key issues are making sure you properly object to all the evidence that is improperly submitted and which will not support summary judgment. My guess is circuit court judges are aware enough of the serious issues that they will not risk appeal just so a Millionaire Foreclosure Mill will get another property back.
An awesome site that provides all the Florida Rules of Civil Procedure online is….Florida Rules of Civil Procedure OnLine click on that link for the index to the site and bookmark it….for the link directly to the Florida Rule of Civil Procedure 1.510 click this link.
The great thing about the site is it provides excellent case law updates for each rule and as you’re drafting your motions, you can just cut and paste the text of the rules directly into your motions.
