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Litigation Tactics – Consider Discovery By Filing A Separate Suit!

July 25, 2010

DISCLAIMER: THE CONTENT IN THIS BLOG IS FOR INFORMATION PURPOSES ONLY AND IS NOT TO BE MISCONSTRUED AS LEGAL ADVICE! Anthony Martinez is a Complex Litigation & Consulting Expert.  Neither Anthony Martinez nor his firm AMA engage in the practice of law and only work in conjunction with licensed practicing attorneys.  AMA will provide public information only and will not provide any kind of advice, explanation, opinion, or recommendation to a consumer about possible legal rights, remedies, defenses, options, selection of forms or strategies.

In a fight, it’s instinctive that when someone strikes you or at you your first reaction is to block and or move into a sort of defensive position.  When the blow or strike is great it can create a paralyzing fear designed to disarm you and make you feel defenseless.

The filing of a foreclosure suit is a hard blow to a homeowner. The delivery of the Summons and Complaint is paralyzing to a large degree and has shown to certainly cause you to feel defenseless.  On a massive level, millions of foreclosure filings has the effect of assault by a mob.  A powerful mob at that because this mob has money and is armed to the teeth.  No one in their right mind dares to fight an armed mob.  And so when we are met with fear we take steps to protect ourselves by sometimes going to self-defense classes.

In Florida (at least  in the Tri-County area of Miami, Fort Lauderdale and West Palm), the court has embraced and assisted the Mob regardless of it doing so knowingly or unknowingly.  They have allowed a charge of $1901.00 for homeowners to Counterclaim making it extremely difficult for homeowners to truly defend themselves.  For this reason, homeowners are turning to the black-belts of homeowner defense…the ATTORNEY!  What some homeowners are quickly finding out is that many of these attorneys homeowners are turning to are yellow belts at best.

For the Black-belt attorney, consider changing your litigation tactics.  If a homeowner cannot counterclaim because of the $1901.00 filing fee, consider filing a separate action where the filing fee is $401.00 instead. If you feel your cause wreaks fraud or other causes of actions and you have other viable claims outside of a real property claim against parties in the case bring a separate action against them.  Here are some things to consider:

Discovery in the foreclosure case is not getting you copies or proof that show the Plaintiff actually purchased your loan or how the payments to them were being distributed to Investors of your loan.  However what you do have are monthly statements of payments that were made to the Servicer. Consider that in a separate lawsuit the homeowner charges Unjust Enrichment and several other causes of action against the servicer and raises the argument that their loan was purchased in the security chain and paid in full but that the Servicer charged and continued to the monthly amount of $xxxx.xx.  You attach statements to your complaint in support of the allegations.

How will the Defendant respond and what will it produce in discovery in support of its claim?  In foreclosure defense it is to the homeowners benefit to let the prosecuting Plaintiff delay its prosecution because the longer your client can stay in their home the better.  But when you file an action and prosecute you can certainly push the envelope much faster than the outcome of a foreclosure case.  Also, consider the number of defendant’s you could potentially name individually.

Regardless to the approach, my point is lawyers need to start acting like lawyers and go to work!  Start becoming a little bit more creative than these foreclosure mills who have you up against court runners hired on contract just to appear.  I mean come on guys…not only does the Plaintiff not even show their face in court but neither is the foreclosure mill attorney!  You are losing battles against ghost’s…

File suit against a Servicer for actions non-real property related and things will certainly become different.  They won’t be paying $1,200 for that defense this I promise you.  You would be surprised how many homeowners would be willing to pay for that fight if you can present it properly to them.  If we can collaborate on foreclosure defense maybe we can all collaborate on Litigation Tactic’s against these Servicers on both state and federal causes of action.

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