Homeowners Going to Trial Can Win and Recover Attorney Fees

Posted 7/16/2014 Homeowners Going to Trial Can Win and Recover Attorney Fees - Reyes Law Group BLOG post by Carlos J. Reyes Attorney at Law

Going to Trial Always Remains a Viable Option

Going to Trial always remains a viable option, especially when we know that 90% of all loans over the last 10-15 years were “securitized,” meaning transferred from bank-to-bank.  This one fact alone makes it clear that lenders need to do their homework if they’re going to go to Trial and prove their case!  The best evidence that this is not such a “walk in the park” is that now even the “big” firms have been showing up to represent banks in foreclosure cases.  There was a time when only the “foreclosure mills” represented lenders in foreclosure cases in courtrooms across the tri-county area.  They were names we’re now familiar with – David Stern, Marshall Watson and the Florida Default Group.  As the banks became more aggressive, we began seeing firms like Shapiro & Fishman, Greenspoon Marder, and others going to trial.  And today, our team is more routinely running into and dealing with the “big” firms like Gunster, Holland & Knight, and one of my alma maters, Akerman (formerly, Akerman Senterfitt).  As the newcomers engage in the process, they have quickly come to appreciate the Reyes Law Group and our experience in handling foreclosure defense.  Unlike seasoned law firms, we are not simply playing a delay game. We are looking to going to Trial to win!

We recently went to Trial on a 5-year old case and had our Motion for Involuntary Dismissal of the case granted by the Judge.  This came about after the plaintiff had presented their witness – a bank representative.  On cross-examination, we “highlighted” what the bank representative didn’t know which significantly limited her testimony.  We even had a “key” moment where we questioned the witness on a specific issue that varied from her earlier deposition answer and asked her, “When were you telling the truth – now or then?” Ultimately, the plaintiff rested their case.  And pursuant to the rules of civil procedure, we moved to dismiss the case on the basis that the plaintiff had failed to prove they had “standing” to bring this foreclosure lawsuit in the first place.  After about 25 minutes of legal argument before the Judge, the court found that the plaintiff had indeed failed to present evidence sufficient to demonstrate they had the right to sue our client.  The interesting aspect for would-be clients is that in this context, when the plaintiff pushes you into going to Trial and fails to “prove their case,” an Order of Dismissal is appropriate.  (Click to see Order of Dismissal Order Granting Entitlement to Recovery of Fees.)  If the Judge grants the Order of Dismissal, this case is over!  Now it doesn’t mean that you get a free home. Case law makes it clear the lender can file a new lawsuit on the basis that a subsequent monthly installment payment was never made. That can serve to start the whole process again.  However, generally speaking, a loss at trial for the bank helps the homeowner regain leverage in negotiations. This can generally serve to settle the issue – whether through a loan modification or short-sale – for good!

As I’ve said more than once over the years, the burden is on the bank to prove their case.  And surprising as it may be, when challenged, that’s not an easy task.  If you have no choice but going to Trial, rest assured that RLG has the experience you need to go to Trial in your foreclosure defense case!  When we say, we “defend your property, and preserve your rights” – we mean it!

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 Melissa J. Ulloa 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 ModificationsFamily LawCorporate Work, and Labor & Employment Law.

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

Visit our firm website ReyesLegal.com and review our credentials.

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

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Written by Reyes Law Group