To Defend or Not Defend, … That is the Question.

More than once over the last few years I’ve heard a homeowner or investor say, “I’m not going to defend the lawsuit.  Let the bank  take it back and I’ll be done with it!”  Unfortunately for that homeowner or investor, that is just plain WRONG!  Florida law is clear:  Lenders have 5 years to file and pursue a deficiency judgment against you.  Once in hand, they have 20 years to collect, with interest.  With a deficiency judgment in hand, they look to collect from other “non-homestead” properties, wages, and other assets.  And since many lenders will often discount and sell these judgments to collection agencies, you can be assured of continuing collection efforts for years to come.

So the basic question is should you defend yourself against the lender?  What does “defending” mean?  With the caveat that we never know how aggressive the lender is going to be, when it’s going to act, or how, the practical answer Yes!  Defending means we respond to the lawsuit by raising all defenses available to you, and challenging the lender’s claims throughout the litigation.  From the outset we challenge the initial complaint via a “Motion to Dismiss” designed to challenge the “legal sufficiency” of the lawsuit.  (As a practical matter, this alone serves to both challenge the bank’s allegations, and slow down the process.)  Typically, we will confront most of the lender’s claims by raising arguments ranging from their “authority” to have filed the lawsuit, to their legitimacy in claiming they are the “owner and holder” of the note, and so on.

How we then proceed depends on how the court initially rules.  If our motion is granted, the bank has to re-file the suit correcting their mistakes.  If denied, we then file an “answer” and “affirmative defenses” (the latter, serving to explain why even if true, you are not liable on this claim).  Thereafter, we’re in the “discovery” phase of the case.  Each party can investigate the case by sending out requests for production (of documents), interrogatories (questions), requests for admissions, and can conduct depositions (interviews) of the parties.  Most of these are done in varying amounts, at varying times, and their value depends on how skilled, aggressive and persistent the lawyers are.  How long it takes to get through this phase is anyone’s guess.  Generally, the lender seeks a quick resolution by filing an early motion for summary judgment (read: prematurely).  (All cases are resolved via a summary final judgment or trial.)  It does not mean that it will be granted, but it does serve to see if they can get the judge to agree to a quick judgment for the bank.  In any case, once “enough” discovery has been conducted and finalized, the case is “at issue” and a trial date may be set.  Once it is set, the parties prepare for and attend trial.

As you can see by this short synopsis, the process can be time-consuming, complicated, and increase the lender’s cost of foreclosure exponentially.  On more than occasion I’ve written that any loan modification or short sale offer to a homeowner not in litigation, is still for the benefit of the bank, meaning they are doing so because they believe it is in their interest, not yours!  With that in mind, when does a lender in foreclosure litigation start to contemplate a possible “settling” of the case?  That’s right, … when the cost of the foreclosing starts to exceed their anticipated expenses!  Knowing that, the answer to the question should then be obvious, … “To Defend or Not?”  You bet!

Don’t be a victim!  We can help you aggressively litigate your case, negotiate your loan modification, successfully close your short-sale transaction.  In the end, you too deserve a passionate voice to help you fight to defend your property and/or preserve your rights!

Carlos J. Reyes  is the Principal of Reyes Law Group. He has been a member of the Florida Bar since 1988 and practices state-wide.  Carlos has been awarded a rating of “AV Preeminent” which is the highest possible rating in both legal ability and ethical standards by Martindale-Hubbell – a well-recognized legal resource. The RLG Legal Team also include attorneys Stephan LopezMelissa J. UlloaPhillip A. Ortiz and the RLG Legal Support Team to bring you a dedicated, experienced and dynamic legal team to handle your legal needs.

We also assist clients in the areas of: Civil LitigationReal Estate LitigationResidential Purchase & SalesCommercial Acquisitions & SalesResidential Landlord-Tenant LitigationCommercial Landlord-Tenant LitigationShort Sales NegotiationsLoan ModificationsCriminal DefenseCivil Rights ClaimsFamily LawCorporate Work, and Labor & Employment Law.

Call us for a FREE consultation at (954) 369-1993  Se Habla Español.

Visit our firm website and review our credentials.

We are located at 150 S Pine Island Rd #210, Plantation, FL 33324


The Reyes Law Group BLOG is intended to provide information to firm clients, friends and potential clients about various legal related topics. Nothing in this BLOG should be construed as legal advice or a legal opinion. Readers should not act upon the information contained in this BLOG without seeking the advice of legal counsel.

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Reyes Law Group

Reyes Law Group represents clients in a multi-disciplinary legal practice involving real estate transactions and litigation with a “footprint” that covers the State of Florida. Over the firm’s first 10 years, Reyes Law Group has closed over $100M in commercial closings, representing buyers and sellers in contract negotiations, due diligence, and the related title review and policy issuance related to closings. In litigation, the firm has commercial litigation experience focused on prosecuting or defending claims such as breach of contracts, partition actions, trade secret violations, and breach of non-competes. However, our firm’s MAIN FOCUS is assisting asset and loan portfolio managers, investors and private lenders with a “ 4-PILLAR APPROACH” to the legal challenges they face with non-performing assets: 1) LOAN WORKOUTS; 2) COMMERCIAL FORECLOSURES (across the State of Florida); 3) COMMERCIAL EVICTIONS; and 4) REO COMMERCIAL CLOSINGS.30+ years’ legal experience means - WE CAN HELP!

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