Hello Lucy,Hope all is well.On September 14th, 2010 the Law Offices of a robo-signature attorney(they were forced out of business because of their fraudulent business practices) firm representing the mortgage lender filed a forclusure suit against our property. On October 5 2010 we filed a Pro-se Moiton to Dismiss Complaint Based On Improper Amortization Payment Schedule. A "new" Law Firm, after filing a Notice of Appearence, became, by Order of the Court, the new Attorneys for Plaintiff. Since then we have been in negotiations with the new Law Firm, debt collectors, and the mortgage lender to finalize a complete pay off of the loan, which is a second mortgage for approximately 35K. However, on July 13 2012, the new law Firm filed a Motion For Default for "failure to serve any paper on the undersigned since filing of the Complaint."Question: We served the 1st Law Firm with a response (as above), does this new Law Firm have any legal standing to Moiton for Default for non-response when we did respond.Thanks
State/Country relating to question: Florida
Already sent info. Tx
Hi,If they agreed not to file for a default while you were in negotiations, no, they can't seek a default. If you had a good faith belief that they would not seek a default while you were negotiating, you can make an equitable objection to the default (it's not fair), and remind the judge that there is a preference in the law for resolving cases on their merits, and not on technicalities. On top of that, if you filed the Motion to Dismiss that was also served on the original attorney back in 2010, there is no basis for a default judgment against you (but you may have a basis for seeking dismissal based on failure to prosecute, if nothing has happened).
Actually on 11/2/11, the "new" Law Firm entered a Notice of Dropping a Party Defendant into the Court record. This latest (Motion to Default) record into the Court was on 7 /14/12. My understanding is that it has to be at least one year with no activity in the record for being able to seek dismissal based on failure to prosecute, correct?
And yes, we definately filed a Motion to Dismiss complaint with the first Law Firm on 10/5/10, it was certified, and I have the record.
Therefore, you would advise to file a Motion to Quash his motion based on the fact that we did file a response, as said, to the original Law Firm.
Or should I call the Law firm and advise them that we did answer and that they withdraw the Motion for Default ASAP and send us a copy obviously.
Yes, failure to prosecute is 12 months. I didn't realize that they had filed anything in 2011. It's easier for you to call the other firm, or send an email, explaining that you did file a response to the lawsuit, and ask them to withdraw the motion for a default. If you send an email, you'll have a record both of what you said to them, and their response. If they refuse, then you can file something asking the judge to ignore the default or remove it if it's already been entered - the clerk sometimes does the default immediately, so you may want to call the court to see if it's already showing as defaulted. In that case, the motion is a Motion to Remove Default Judgment.What happened to the Motion to Dismiss? A defendant does have to file an Answer to the Complaint within 20 days after it's denied, but it sounds like you're still waiting, because you've been working with the plaintiff. If that's the case, there hasn't been anything for you to file.
Will do for Plaintiff's Motion For Default as per your advise.
Not quite sure i follow your "what happened to the Motion to Dismiss question. Just as a summary:
Original attorney Filed the Complaint seeking Foreclosure on 9/14/ 10, whereas, we submitted a Motion to Dismiss on 10/5/10. However, we never set up a hearing date for our Motion to Dismiss. The original attorney never answered our Motion to Dismiss. Then on 8/22/11 the "new" Plaintiff's attorneys filed a Notice of appearence.
Now, not sure but what you mean by "defendant does have to file an Answer to the complaint within 20 days after it's denied." We did file a an Answer within the 20 days, the Motion to Dismiss, and never heard anything from the Plaintiff new attorney until the Notice of Appearenc on 8 /22/11.
Just to clarify my mind, can you further extrapulate your 2nd paragraph so that I may better understand...just in case there is some action we can take in favor of our position, in case the Plaintiff's attorney failed in some manner.
I meant that, if the judge issues an order that says, "Your Motion to Dismiss is denied," you then have to respond to the allegations in the Complaint by filing an Answer, admitting or denying everything the plaintiff said. You may want to check the docket to see if that ever happened. If you asked the judge to dismiss the case, and nothing ever happened - there's no reason to file an Answer, but you may want to think about whether to file something that asks for a hearing or otherwise reminds the judge that you asked to dismiss the case over a year ago and nothing has happened yet.
What is the best/easiest way for a Pro-se individual to check the Docket? Can you do that online, or do you have to go to the Court?
It depends on the court system. In Federal Court, everything is online, but not all of the state systems do that. Start with the website for your court, to see if there is anything there. Otherwise, it's probably easier to call the clerk of the court. They can tell you what they see, and they might be able to send you a copy. They can also confirm whether there's a way to get the information online.
As per your advise, I contact the 2nd law firm (the one that filed a Motion For Default) advising them that we had filed a Motion to Dismiss with the first law firm on this complaint. At first, they emailed me stating that they would "look into it and withdraw the Motion accordingly."
I asked them to email me any documents they send to the Court per their statement above. I have tried contacting them 3 more times reminding them to send said document and telling them that I will have no choice but to file A Motion to Quash their "Motion For Default for failure to serve any paper on the undersigned since filing of the Complaint" as we have answered the first law firm's Complaint, I have heard nothing at all from them, not one thing either way.
Therefore, at this time I believe we have no choice but to respond by sending in a Motion To Quash their Motion. Should I mention to the Court/judge that we tried to have Plaintiff lawyer withdraw Motion and they are wasting the Court's and our time by submitting their Motion For Default and then not withdrawing when shown that their Motion has no merit? Or should I just not mention anything...
Also, the service list has about 7 individuals and/or organizations; do we need to send a copy of our Motion to Quash to everyone on the list?
It's not uncommon for lawyers to include a note in a motion stating that they've tried to work things out with the other party, and that they've been uncooperative. You don't want to spend several pages on it, but it's often worth noting. That way, the judge knows that you tried to work with the other party and they were uncooperative.You have to serve everyone who is a party to the action. So, if there are seven people, you have to serve all seven. But you can do it by mail.
Ok, will do. Do we have to set a hearing for this Motion to Quash their Motion?
If you'd like a hearing, you have to request one. If you don't ask for one, the other party may not, and the judge won't schedule one on his own.
Ok, but will the Motion To Quash be granted without a hearing? Or at best, XXXXX XXXXX request for a Default cannot be legally granted (once we send in a response) by default of not responding by Defendant, correct?
If no one requests a hearing, and the judge doesn't feel that one is necessary, yes, it can be granted without a hearing. But if you want to be able to talk to the judge, it may be a good idea to request one.
Just to clarify my mind;
Either way, the judge cannot (without being challenged) grant a Defualt for Plaintiff's reason of Defendant not answering the Complaint, which we did.
Additionally, the judge can't grant the Default by their Motion For Default because we didn't set up a hearing? That is to say, once we send in proof that we did answer the Complaint ( Plaintiff attorney trying to get default because we didn't anwser), judge cannot grant them default because we didn't set up hearing on our Motion To Quash their motion, correct?
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