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Dwayne B.
Dwayne B., Attorney
Category: Legal
Satisfied Customers: 27091
Experience:  Began practicing law in 1992
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Last week I attended what was supposed to be a hearing for

Customer Question

Last week I attended what was supposed to be a hearing for final summary judgment in a foreclosure case, representing myself pro se. Neither opposing counsel for bank nor bank representative appeared. Judge asked clerk what was going on and clerk stated that hearing had been rescheduled. Judge stated I should do nothing, and would be notified of new hearing. 2 days later I received a notice that the summary judgment had been granted, and date for sale set.
Can I have the judgment vacated due to Judge's error and/or not being heard at the final hearing, or the hearing not ever occurring?
Submitted: 1 year ago.
Category: Legal
Expert:  Dwayne B. replied 1 year ago.

JD 1992 :

Hello, and thank you for contacting Just Answer. I am an expert here and I look forward to assisting you today.

JD 1992 :

It's unlikely that would be grounds to reverse a summary judgment.

JD 1992 :

At a summary judgment hearing there is no evidence presented, it is for arguments only, the case is decided on the written evidence filed along with the motion as well as with the response.

JD 1992 :

A judge can deny a request for a hearing and decide the case solely on the briefs if they choose to do so.

JD 1992 :

As a matter of fact, it isn't unusual for a hearing to get set and for the judge to issue a ruling after he reads the motion, evidence and briefs and then cancel the hearing.

JD 1992 :

The website is showing you are offline so I will exit so I can assist other customers. Please feel free to ask any follow up questions that you have in this thread. However, please do not issue a rating until our interaction is complete and all of your questions have been answered.

Customer:

I spoke with a lawyer who said that he thought they could get it overturned, but I would have to pay $2000 to have them write the motions and attend the hearing.

JD 1992 :

Is he saying he could get it overturned on appeal or get the judge to reverse it and allow you to have a hearing?

Customer:

Not on appeal, getting the judge to reverse it. Are there not rights of due process that would allow me to be heard?

JD 1992 :

Not on a summary judgment.

JD 1992 :

Judges often will let you have a hearing, but you can't reverse one on appeal based solely on this reason because all that happens at a SJ hearing is argument.

Customer:

Not trying to reverse on appeal or appeal at all. The Judge explicitly said that a bank representative probably wasn't available and it would be rescheduled. It would heard by the same judge.

JD 1992 :

I understand your issues and I think if you ask the judge to reconsider and allow argument there is a good chance he would do so. However, it likely won't make much difference because the judge rules based on the evidence that was submitted prior to the hearing. The evidence won't change.

JD 1992 :

What was the reason for the SJ being granted?

Customer:

Foreclosure.

JD 1992 :

No, I mean what evidence did they have. Also, did you submit evidence to refute it?

Customer:

No I didn't submit any evidence or refute it. Was hoping to be able to file a motion if a new hearing is granted. Their evidence is being behind on the mortgage.

JD 1992 :

You have to timely file a response with evidence, even if it is just an affidavit from you, to refute what the other side puts in their MFSJ. If not, the judge decides it solely on their evidence. That is probably why the judge didn't require a hearing. Their evidence was either sufficient or it wasn't. There is really noting to argue since you didn't submit any evidence to counter theirs.

JD 1992 :

What kind of "motion" were you planning on filing?

Customer:

Motion to vacate (and postpone?sale date) Was then hoping to be able to file a motion with evidence if given a new hearing.Paid 2 years of back taxes and were trying to bring it current, an agreement was made but we had a delay because my husband was diagnosed with cancer and it has slowed us down. Probably can't ultimately stop the foreclosure but now looking for an extended time for sale date.

Customer:

Just hoping for a chance before the judge to explain that we need more time. Sale date is set for Aug 27. Hearing was last Monday 7/8. The 10 day period for filing is by this Friday, 7/19

JD 1992 :

You can ask for the judge to reconsider but your problem is that the MFSJ is set in stone. Once they file you only have a certain amount of time to respond and file your evidence. If you don't timely file it then the judge won't consider it and the MFSJ is granted.

JD 1992 :

Have you considered a bankruptcy?

JD 1992 :

A bankruptcy stops everything where it is and so it would buy you additional time and, in addition, may even give you a stronger bargaining point with the bank.

Customer:

A possibility...have to step away for a few minutes . is that ok?

JD 1992 :

Sure. I will be online off and on until 10 or so. Just let me know when you get back.

Customer:

great thank you so much

JD 1992 :

No problem. I'll wait to hear from you and will assist others in the meantime.

Customer:

I'm Back. Bankruptcy is prob not a good option.

Customer:

Bankruptcy may help but is not a good option for right now- husband won't do it.

Customer:

Bankruptcy is a good suggestion - but husband won't consider it.

JD 1992 :

I understand, but it is a sure way to prevent the foreclosure. Even if you get the judge to grant you a hearing on the Motion for Summary Judgment if you didn't file a response then the Motion will be granted again. It is unlikely the judge is going to allow additional time to file a response.

Customer:

I'm back- are you available now or in a bit? Bankruptcy is a good suggestion- but husband won't consider it. If I ask Judge to reconsider, is it based on his statement there would be a hearing, or clerical error, due process or what ? Can you write the motion or can I then show you what I have and you review it? I have a draft started. Case is in Florida.

JD 1992 :

I'm here, can you see this post?

JD 1992 :

I think the chat function may be acting up so I'm going to switch this to a regular Q and A.

Customer:

sorry i didnt see it at first my fault

JD 1992 :

No problem, I didn't switch it yet.

JD 1992 :

I was afraid it was glitching.

Customer:

didnt think the words were getting posted..

Customer:

if he granted a hearing I would file a response

JD 1992 :

We aren't allowed to write motions or prepare any paperwork but for a motion to reconsider is pretty easy.

JD 1992 :

You would just explain what happened and ask the judge to reconsider it and allow you to have a hearing.

JD 1992 :

However, don't be surprised if the judge doesn't let you file a response.

Customer:

Do I have cite case law?

JD 1992 :

No, not for the motion to reconsider. There's not going to be any case law anyway.

JD 1992 :

Just cite "due process" but it doesn't really apply in this case.

Customer:

So I don't have to show some other case that was like this? what about the standard of law part (or something like that :)

JD 1992 :

This is discretionary on the judge's part so none of that really applies. You probably meant "standard of review" but that is only an issue on appeal.

JD 1992 :

Just explain that you showed up and were prepared to argue the case and then what you were told.

Customer:

OK. Should it be Motion to Reconsider or Motion to Vacate or something else. Do i ask him to set it aside or just for a hearing.

JD 1992 :

You can title it Motion to Set Aside/Motion to Vacate. The title really doesn't mean a lot. You ask him to set it aside and set it for a hearing date on the Motion.

JD 1992 :

There are very strict time requirements and strict procedures you have to follow so be sure and read up on them.

Customer:

If I prepare the paperwork can you review it? Do I have to write up an order as if he grants it?Sorry for all the questions. Thank you for all your great answers

JD 1992 :

Yes, you do have to prepare an order if he grants it but all it would say is that the Summary Judgment granted on _____ is hereby set aside.

JD 1992 :

I can look over the motion but there's a limit to how much I can tell you.

JD 1992 :

I ran a google search for you on Summary Judgments in Fl and you probably want to read some of the articles if the order is vacated.

Customer:

OK. I understand. I have 10 days to file. The order was written on 7/9, received on 7/11.

Customer:

Thanks for the link. I've been doing research too. How do I get the draft to you? I can copy here?

JD 1992 :

You can paste it in here.

Customer:

I can paste a draft now. Is this public? Should I leave off the names

JD 1992 :

It is public. However, after you finish and issue your Positive RatingI can ask them to close and hide this thread if you like.

Customer:

OK

JD 1992 :

Do you have the main language ready?

Customer:

yes

Customer:

here it is:

Customer:

IN THE CIRCUIT COURT THE


FOURTH JUDICIAL IRCUIT, IN AND


FOR XYZ COUNTY, FLORIDA


XYZ BANK OF FLORIDA. N.A.


 


Plaintiff,


 


v.


 


P L; ML; HOMEOWNERS ASSOCIATION, Florida corporation; ANY UNKNOWN TENANTS IN PARTIES IN POSSESION,


 


Defendant(s);


_________________________________________________


 


MOTION TO SET ASIDE/ VACATE FINAL SUMMARY JUDGMENT



Defendant, ML, by and through herself as pro se representative, files this motion and states:




  1. This motion for reconsideration is filed pursuant to Rule 1.540, Florida Rules of Civil Procedure. The particular grounds for defendant’s Motion to Vacate Summary Judgment set forth below:

  2. 2. All parties in this case were ordered to appear at a Hearing on July 9, 2013, at 9:00 am in the Chambers of Presiding Senior Judge MW, at the _____l County Courthouse, ______ Street, in Courtroom 609, ________, Florida ____, in order that the following Motion be heard: Plaintiff’s Motion for Summary Judgment and Taxation of Attorney’s Fees and Costs

  3. Defendant appeared at that hearing and went before Judge Weatherby at approximately 10:00 a.m. However, neither opposing counsel or a representative for the Plaintiff appeared. On coming forward to the podium, the Judge asked which case it was. I, the Defendant, gave the papers of notice of hearing to a clerk who passed them to the Judge. The Judge looked at the papers then asked another clerk about the status of the case and hearing. The clerk who had the records looked through them then stated the hearing had been rescheduled. The Judge apologized for the fact that Defendant was not informed that the hearing was rescheduled. He also said that someone on the other side, perhaps a Bank Officer must not have been able to attend. Defendant was instructed by the Judge not to do anything, that the hearing was rescheduled and Dedfendant would be informed of the time new hearing.

  4. On Thursday, July 11, 2013, by US Mail Defendant received a notice that the Judge had granted the Motion for Final Summary Judgment, as well as ordered the property in question sold at auction on August 27, 2013, without having conducted the aforementioned final hearing, and contrary to the specific instructions to defendant on the day of what was to be the Final Hearing.

  5. Defendant was prepared to argue the case but was not afforded the opportunity. DUE PROCESS statement


 


NOTES:THIS IS EXTRA STUFF STILL WORKING ON:MAY NOT BE RELEVANt


 



  1. In exhibit “C” a charge is listed for “preparation for and appearance at hearing for Motion for Summary Judgment”, however neither counsel nor any representative appeared at that hearing, therefore a charge for such time is unjustified.


 



  1. The defendant is has made a genuine effort to negotiate bringing the mortgage current, and in fact had an agreement in place as of March 2013. As a part of that agreement, $15,000 in back taxes were paid and the taxes were made current.

  2. Next the back paymenyts were to be made current, and a private d loan had been secured to .


 



  1. Additionaly, genuine material issues of fact exist, in the affidavit

  2. Contradictions exist within the Motion for Summary Final Judgement, including:


 


STANDARD OF REVIEW


7. Rather than constituting a motion for rehearing under Fla. R. Civ. Pro. 1.530, a motion


directed to a nonfinal order is termed a "Motion for Reconsideration" based upon the trial court's


inherent authority to reconsider and alter or retract orders prior to the entry of final judgment.


See Bettez v. City ofMiami, 510 So. 2d 1242, 1242-43 (So. 3d DCA 1987).


8. An order merely granting summary judgment is not a final judgment; rather, it is a


nonfinalorder. See e.g. White Palms of Palm Beach, Inc. v. Fox, 525 So. 2d 518, 519 (Fla. 4th


DCA 1988).


MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S MOTION


I. The Court incorrectly granted Summary Judgment in favor of the Plaintiff


In error due to a clerical oversight. Additionally, and where genuine issues of material fact exist which were timely raised and objected to by the Defendant


A. LegalStandards


Under Florida law, summary judgment is proper if, and only if, based on an examination


of evidence, no genuine issue of material fact exists and the movant is entitled to judgment as a


matter of law. See The Florida Bar v. Green, 926 So. 2d 1195, 1200 (Fla. 2006); Volusia County:


v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000).


10. Furthermore, pursuant to Rule 1.510 of the Florida Rules of Civil Procedure, a Court may


grant summary judgment if, and only if, "the pleadings, depositions, answers to interrogatories,


and admissions on file together with the affidavits, if any, show that there is no genuine issue as


to any material fact and that the moving party is entitled to a judgment as a matter of law." Fla.


R. Civ. P. 1.510(c).


11. In summary judgment proceedings, the Court must take all the facts that the non-movant


states as true and must draw all reasonable inferences in favor of the non-moving party. See


Bradford v. Bernstein, 510 So.2d 1204 (Fla. 2d DCA 1987); Petruska v. Smartparks-Silver


Springs, Inc., 914 So.2d 502 (Fla. 5th DCA 2005).


 


 



  1. SOLICITATION BY OPPOSING ATTORNEY: I received in the mail a letter from the opposing attorney offering help with foreclosure defense……conflict of interest?


JD 1992 :

I'm going to switch this to Q and A format so I can see all of that. You may have to exit and reenter the question.

Customer:

Not sure what that is but OK. Can I give you an excellent rating now or will it sign me off?

Customer:

How will I know to exit and reenter the ?

Expert:  Dwayne B. replied 1 year ago.
Our chat has ended, but you can still continue to ask me questions here until you are satisfied with your answer. Come back to this page to view our conversation and any other new information.

What happens now?

If you haven’t already done so, please rate your answer above. Or, you can reply to me using the box below.
Expert:  Dwayne B. replied 1 year ago.
For the Motion to Vacate/Set Aside you don't need the "extra stuff". You would want to attach an affidavit from you stating that the allegations and facts in the Motion are true and correct.

Everything else looks fine. If the judge is going to reconsider this it is because he wants to appear fair and so the facts are what are important.
Expert:  Dwayne B. replied 1 year ago.
You can give your rating now and it will still allow you to post. In addition, if you think of anything else later the question will allow you to come back to it.

Let me know when you are ready for me to ask them to hide it.
Customer: replied 1 year ago.

This is great thank you. If they hide it can you still see it (to review) or can I?Can I send the finished one tomorrow to you here? You have been great and I truly appreciate your time and expertise. Thank you!

Expert:  Dwayne B. replied 1 year ago.
It locks it up for a while when they hide it. Why don't we wait until tomorrow to do so?

When you feel comfortable please issue your rating and that way the question doesn't time out.

I will be traveling tomorrow so it may take a little while to respond but if you post I will definitely get back to you tomorrow.
Dwayne B., Attorney
Category: Legal
Satisfied Customers: 27091
Experience: Began practicing law in 1992
Dwayne B. and 10 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

Dear JD1992,


Still working on Motion will you be available tomorrow late morning?


Can the posts be hidden now or how soon?

Expert:  Dwayne B. replied 1 year ago.
I can ask them to hide it whenever you get ready. Once they do you will have to open a new question if you want to ask something else.

I will be available off an on tomorrow.
Customer: replied 1 year ago.

OK Have them hide it now. I will ask it as a new question tomorrow and hope you are available - can appt times be set here?

Expert:  Dwayne B. replied 1 year ago.
Yes, you can ask for an appointment. I know I won't be available on Friday night, Saturday or early Sunday this week but most other tines are okay.

Just start the question FOR JD 1992 and I'll pick up when I see it.

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