Foreclosure Defense Florida

PLAINTIFF'S and crafty attempts to avoid paying attorneys fees…..

6 Comments

  • Mike Gaydos says:
    April 18, 2012 at 2:06 pm

    Matt:
    This one looks related to Capacity as Plantiff filed non-resident cost bond. How can I find and read this case. I searched the 6th circuit website to no avail!
    I am very interested in Capacity as a defense. Please respond.
    MG

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  • Attorney Wendy Alison Nora says:
    April 19, 2012 at 10:00 am

    This motion is very entertaining to the outside observer. I am guessing that the case was dismissed without prejudice for want of standing of the Plaintiff. If that is true, the Plaintiff brought a wrongful foreclosure against the homeowner and also violated the Fair Debt Collection Practices Act by attempting to collect a debt not owed to it, for which reasonable attorneys’ fees may be awarded. He who seeks equity must do equity.
    My perceptions of the case status may be wrong as founded only on the motion and not knowing Florida law or the facts of the case. I do think, however, that all foreclosure defense lawyers should plead FDCPA in cases where standing is disputed, to preserve the right to request reasonable attorneys’ fees.

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  • JamesM says:
    April 19, 2012 at 10:51 am

    That motion is not crafty, it is deliberately deceptive.
    First: It was not a voluntary dismissal, as shown in the motions own the preamble and unnecessary recitation of the case history.
    Second: Plaintiff has not yet proven they hold the note and mortgage. (not totally sure, but I suspect this has not been an admission of defendant or finding of the court).
    Third: If there is a binding contract with a clause for lawers fees, as is almost certainly alleged in Plaintiff’s pleadings, then fees are automatically reciprocal to prevailing party, which is quite obviously the Defendant.
    Fourth: The argument about free rent is completely irreverent, and Plaintiff’s counsel, as a foreclosure mill, should be aware of that.
    I could go on, but the motion is hokum bokum legal mumbo jumbo, that not only calls for a grand slam putdown reply, but a responsive motion for sanctions under 57.105 This may make all or part collectible against current Plaintiff counsel, instead of chasing invisible, out of state, possibly non-existent Plaintiff.

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  • JamesM says:
    April 19, 2012 at 10:57 am

    P.S. Please post your responsive motion. While it is not good form to be flip, I suspect this is going to provide an opportunity for a short, curt, pointed disembowelment.

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  • JamesM says:
    April 19, 2012 at 12:16 pm

    I notice paragraphs 8, 9, and 10 are not in of chronological order. Look at the dates on 8, 9 & 10. That’s a good example of deception, suggesting their attempt to amend was prior to the order of dismissal. I presume the dismissal was without leave to amend.
    It appears the amended complaint was flied by Plaintiff in lue of a reply to the motion to dismiss. Not good practice. Unless previously authorized by the court, for example when dismissed with leave to amend, an amended complaint should be filed as an attachment to a motion asking the court for leave to amend the complaint.
    In any case the amended complaint was untimely. I have seen this before. Where Plaintiff’s first complaint was destroyed or they are facing certain dismissal for lack of prosecution, instead of filing a reply addressing the motion, or showing good cause, Plaintiff first tries to file an untimely and unauthorized amended complaint, and if that fails files a notice of voluntary dismissal.
    This is common. It appears the lawyer for the mill has taken their normal response to a motion for fees and costs, the one they file when they did manage to file a notice of voluntary dismissal, and just dressed it up for the instant case. In which case the arguments about voluntary dismissal are completely inaproprate and off base, except possibly to distinguish the instant case from the cited case law.
    Their argument that a voluntary dismissal not a ruling on the merits is true, but not relevant to the apparent facts in the instant case.
    There must have been a judicial finding of fact to warrant the dismissal of their pleadings, so that WAS a ruling on the merits of their pleading. That seems to eviscerate the underlying foundation of their argument, that the court cannot determine the prevailing party because there was no judgement on the merits.
    Their argument about the discretion in “MAY” is more interesting. They have taken much effort to distinguish the recent cases cited by Defense counsel, (since the statute changed) and used old cases and the voluntary dismissal argument, neither of which seem to be completely relevant, but does what they set out to do, cast doubt as to the inevitability of a fees award.
    Their response reads a little like the first draft of an appellate brief, so I would be very careful and make sure you file written argument and make good oral argument. The banks would love a tangled lower court record from which they can extract an appellate ruling, that lawyers wining foreclosure dismissals are not always entitled to fees. The way some Appellate courts are ruling, this equitable, free rent argument, although on first glance preposterous, may have some sway in them finding a backdoor way to deny foreclosure defense fees.
    Either way, if appealed, I think an appellate decision is going to be that “MAY” in the new statute is discretionary.
    In the end, if a foreclosure defense lawyer can’t win fees when he loses, and can’t win fees when he wins, (gets a dismissal), then the lawyer’s business is servery handicapped. Beware of them attempting to use this as a spring board for such an appellate opinion.

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