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Irwin Law
Irwin Law, Attorney
Category: Legal
Satisfied Customers: 6848
Experience:  Lawyer & Real Estate Broker, 30+ years, foreclosure, land contracts, inheritance, probate.
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case law to support question

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 ok looking for case law on dismissal of a fla.hoa lien, due to being facially defective. statue states,720.3085 (1) (a),to valid a claim of lien must, the assessment due, and due date, I see this as it must list the actual assessment separately , and not just place an amount on the face of the lien that lumps attorney fees, interest, late fees, etc.. but independently, I replied to a plaintiff motion for summary judgment, but first argued I shouldn't have to reply cause the plaintiff failed to first meet its burden ,that it was entitled to bring the action, etc. the complaint stated the 2011 lien was valid and therefor they had authority to enforce, however I feel they failed to meet that burden cause the lien is invalid ???  

The case law you need isn't on dismissal. It's on the specific requirements of an HOA lien filing. Secondly, no defense is automatically raised. You have to raise and argue it in your Response to SJ. It should have been raised in a motion to dismiss the complaint. Keep in mind that a lien might not be valid, but the debt to the HOA is, and they would be entitled to a general judgment against you even if lien foreclosure is denied because of the objections you raise. You might try to hire a local law student to research cases for you. We cannot do it from this site.

 

I hope that this information is helpful. If not, and you need further information, please do not rate this Answer and just send me a Reply asking for clarification. After that, I hope you will enter a positive rating so that I will be compensated for assisting you. Also, be sure to verify this information with a local attorney who is familiar with your local laws and procedures. Thanks again for using Pearl.Com- Just Answer. Your business is appreciated.

Customer: replied 3 years ago.

I HAVE NEVER REJECTED A REPLY AND HAVE ALWAYS TIP TOO. BUT I HAVE TO SAY YOUR REPLY IS OF LITTLE USE TO ME. I REALIZE HOAS IN FLA. HAVE A SPECIFIC REQUIREMENT IN FILING A LIEN. I QUOTED THE STATUE FOR MY QUESTION.AND I AM AWARE IT CAN BE RAISED IN A MOTION TO DISMISS.HOWEVER I WASNT AWARE YOU COULNT PROVIDE A CASE. BUT THATS NOT HELPFUL EITHER.YOU MADE NO COMMENT ON IF A PLAINTIFF MEETS A BURDEN TO TRIGGER A REPONSE TO A SUMMARY JUDGMENT IF THEY TRY TO MEET THEIR BURDEN OF ENTITLEMENT FOR RELIEF , BUT THEY ARE NOT ENTITLED IF THE LIEN IS INVALID .

Is your question whether or not the technical invalidity of a lien relieves the property owner of any duty to affirmatively raise that issue in an action brought by the lien holder to enforce it? If the lien has no statutory validity as filed, why would you not raise that issue by a formal response to the SJ motion? How else would you preserve the issue for an appeal? If I am missing the issue, you may opt me out and ask for another professional to answer you.

Customer: replied 3 years ago.

I am sorry I have been very busy all week, and my hearing went south, but as I said your reply was not useful nor really address my question, the first half asked for case law ,which you said wasnt possible, the second half, was , florida statue doesnt require a response to a motion for a summary jugement until the plaintiff has met their burden or staisfy it as stated in the complaint, if the plaintiff files a complaint and states that they are enforcing a foreclosure on a valid lien, yet the lien failes to meet statatory requirements because it is not valid ,cause it is facailly defective , how have they met their buredn as sated in the complaint, and how does it require a response , ???

You obviously have a legal theory that a moving party must first sustain a burden (of what?) before the opposing party is required to respond. But you have no case authority to support that, do you? The problem with your theory is how does the opponent raise that issue before the trial judge if they do not formally respond to the motion. If the party seeking S-J has not submitted documentation of their right to a judgment, what will you do if the judge grants it? Appeal? Fine, but now you not only need case law that says their motion required no response for whatever reason, but you will also have to fight a question of waiver of your defense. The way the law works, when one side files a Motion, no matter how frivolous or unsupported it may be, the other side is expected to submit the reasons why it should not be granted. You cannot put the Judge in the position of being your attorney and finding against the movant on his/her own. It can happen exactly that way, but you travel that road at your peril. After all, how difficult can it be to file a memorandum in opposition which points out the defects in the plaintiff's case.

I hope that this information is helpful. If not, and you need further information, please do not rate this Answer and just send me a Reply asking for clarification. After that, I hope you will enter a positive rating so that I will be compensated for assisting you. Also, be sure to verify this information with a local attorney who is familiar with your local laws and procedures. Thanks again for using Pearl.Com- Just Answer. Your business is appreciated.


 

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