Foreclosure Defense Florida

Foreclosure Trials and Playing By The Rules…of Procedure And Evidence….

On Sunday Morning, January 8, 2012, I completed the 3rd Annual Tampa Frogman Swim, swimming across Tampa Bay, a total of 3.21 miles in just under an hour and a half.   The water was cool, the weather was amazing.   The finest people in the world.   The event raised over $100,000, money that will go directly to support Naval Special Warfare Foundation and wounded Navy SEALS.

Before the race started, they read off the names of all the Navy Special Forces operators who had been killed in action this year, including Matthew D. Mason, an operator who lived in Kansas.   I remembered his name and repeated it over and over as I crossed the bay. That could have been me, but I didn’t have Mason’s courage….so all I can do is honor his memory.

And just before I left my house yesterday morning, I got an email from a Special Forces soldier that gave me chills.   I repeated it over and over as I stroke, stroke, stroked. He said:

We are at a time now when we are going to start paying for our arogance. We have been patting ourselves on the back for what generations before us had accomplished, and now we are starting to reap the rewards for such actions.

Incidentally, I got beat by a girl in the race. (I actually got beat by several wonderful women athletes)   But it was such an honor to be in a race and get my butt kicked by Three Time Gold Medal Swimmer Brooke Bennett….that was a highlight of the day!

And it’s all the time spent running, biking or swimming where I get some of my best work done.   When I have time to slow down everything and shut the world out.   Earlier, I posted a rather cryptic post where I said that banks cannot win foreclosure trials that are properly defended.   I remain firmly committed to this proposition, more and more every single day.

Here’s the thing to consider….the very same rules of evidence and procedure and case law apply whether you are trying a $5 million dollar breach of contract case or a $50,000 foreclosure case.

When I’m defending a foreclosure case, that involves a homestead property, I treat the case like a death penalty case….for that family it is a death penalty case.   If we lose, the family dies.   And when you prepare for a death penalty case, you spend months going through each and every single word.   Painstaking attention to every single document. Detailed outlines of every single key point, with every single key point and key piece of evidence supported by as much case law as necessary to defend or support every single argument.

A trial outline has decision trees that contain multiple branches….witness goes this way…this is where we go….witness goes that way….this is where we go….every word, every statement….and especially in a foreclosure case, every single document.

Now, when we win, we’re making a big, big claim for attorney’s fees.   The hours of research and preparation that are required are very significant, but just compare the value in controversy…when the opposing Plaintiff knows what they’re doing, and the value of the claim in controversy is say $500,000 how in the world can a properly defended case not make the bank liable for say $20,000 in attorney’s fees to defend?   I promise you that such an amount would be totally reasonable in every other kind of litigation.   Why should foreclosure be any different?

The thing to consider is virtually all the bad appellate cases we’ve read and rely upon deal with Summary Judgment, they almost never come up with decisions in a trial case….and the standards are totally different.   When a foreclosure case is slowed way, way down and the judge considers the evidence just like he’s considered evidence in all the other civil trials, I just cannot see how the bank wins in most of the cases that are currently pending.

The banks know this as well.   That’s why you find them routinely dismissing cases just before trial….and they’d better keep doing that.   Because taking a case to trial and losing is far worse than dismissing one of those cases and filing it all over again with all the evidence correct…or at least more correct than any of them currently are…..

This work is not for the faint of heart, and it’s not for the newly-minted to this world.   I’ve been at this for a fair amount of time, but I could not do it without the support, guidance and strategy of a half dozen other very sharp lawyers.   And we don’t just pull the file the week before the trial…..countless hours are spent months in advance…it’s like… for an endurance event…..except the stakes are much, much higher on event day…..




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