Chapter 11-9 Unique Considerations for Foreclosures

• Jurisdiction: Florida

11-9 Unique Considerations for Foreclosures

11-9:1 Local Rules

With the adoption of Rule 2.545(b) of the Florida Rules of Judicial Administration, the Supreme Court directed Florida Courts to "take charge of all cases at an early stage in the litigation and control the progress of the case thereafter until the case is deter-mined."⁵⁷ In response, many circuit courts have adopted administrative orders calculated to streamline the often lengthy litigation process. For example, in the Twentieth Judicial Circuit for Lee County, the Court will generally issue a Residential Foreclosure Case Management Plan and Order requiring that all discovery requests be filed no later than 45 days from the date of the answer to the complaint and objections be filed no later than 20 days from receipt of that request. Responses with no objections may be filed within 30 days.⁵⁸ Accordingly, the careful practitioner will always review local rules and administrative orders to ensure that they do not afoul of the same.

11-9:2 Discovery and Final Judgment

A foreclosing Plaintiff's goal is generally to bring the matter to summary judgment and foreclosure sale as quickly as possible. Time is money! Mortgage balances increase, carrying costs increase (often lenders are paying insurance and taxes), the collateral property depreciates, etc. The foreclosure defendant's goal, on the other hand, is to buy time—time to negotiate a loan modification, short sale, or time to syphon more rental income from the subject property. And there exists no greater currency with which such time is purchased than the discovery process. Generally, the granting of summary judgment while there is outstanding discovery is reversible error.⁵⁹ This is because summary judgment will be granted when there is no dispute as to any genuine issues of material fact, and the defending mortgagor is certainly entitled to diligently engage in discovery to support his or her defense. Conversely, summary judgment is appropriate irrespective of whether discovery is outstanding when such discovery would not create a disputed issue of material fact, i.e., "would not yield any new information that the trial court either did not already know, or needed to make its ruling."⁶⁰ Furthermore, when the discovery motions are clearly delay tactics, the trial court is within its sound discretion to enter summary judgment, irrespective of whether discovery is pending or not. "If there is good faith discovery still in progress, the trial...