Failed to Serve Continuance Civil Florida
Last Update: 10/10/20
In Florida, those fighting a residential foreclosure should be aware of the procedures often used by lawyers and judges that can delay a foreclosure lawsuit from proceeding.
Two of these procedures are called "stays" and "continuances." Both are governed by the Florida Rules of Civil Procedure as well as local rules, state statutes, and court precedent.
Stay versus Continuance
Stays and continuances are not the same. A stay is an order by a judge that places a foreclosure lawsuit on hold, whether it be a temporary hold or a permanent one.
When a judge orders a stay, there is no hearing or trial date until the stay is lifted by the court. Many people facing foreclosure may be familiar with a "bankruptcy stay," which is an order preventing a foreclosure sale from occurring.
On the other hand, a continuance is an order by a judge that delays a hearing date or the date of a particular foreclosure trial.
A continuance can happen before, during, or even after the hearing or the trial has started.
Image: Courtroom clock, David W. Dyer Federal Building and U.S. Courthouse, Miami, Florida; from photographs in the Carol M. Highsmith Archive, Library of Congress.
Motion To Continue The Foreclosure Lawsuit Before Trial
A motion for continuance can be requested by either party. For example, the lender may want to continue the lawsuit for various reasons (e.g., witnesses are unavailable, documents are lost or misplaced, etc.). In other cases, the homeowner fighting the foreclosure may need more time for things like gathering more evidence in discovery (like taking the deposition of a bank representative, which can be critical to a foreclosure defense strategy).
Example of Bank Moving for Continuance before Trial Date: the Reive case
An example of how a motion for continuance works in a Florida foreclosure case is provided in the decision, Reive v. Deutsche Bank Nat. Trust Co., 190 So. 3d 93 (Fla. Dist. Ct. App. 2015).
In that case, the bank filed a motion to continue its foreclosure lawsuit. It was not a new lawsuit; the bank had sued the borrower for foreclosure three (3) years earlier.
Every motion for continuance must provide a valid basis for requesting the trial be postponed
Every motion filed before a judge has to have a valid legal reason for its requested action. In the above case, the bank asked the judge to order the case continued because the underlying loan was being transferred by the lender to a new mortgage servicer. And, of course, the borrower did not contest the motion to delay the lawsuit.
Nevertheless, the judge denied the unopposed motion to continue the three-year-old lawsuit. The bank had to proceed with the trial notwithstanding the fact that the loan was being transferred to a new servicer.
The trial date was less than two weeks away (10 days from the date the judge denied the continuance).
With only 4 days before the time to appear in court to pick a jury, the borrower (defendant) was notified of new witnesses and new documents that the bank was planning on using at the trial.
The usual minimum time limit for delivery of this information is 30 days. The reason for this is so the lawyer who receives the new information has time to analyze it and prepare his response or reply to it (for example, the lawyer may object to the use of the documents on the basis that he or she has not had an opportunity to question the proponent of the information or authenticate it and/or challenge its accuracy).
In most, if not all, Florida litigation, parties are given formal "pretrial discovery deadlines" by court order, which are set by the judge. These deadlines apply to things such as providing witness lists and documents.
So, in this case, the borrower (defendant) objected. He filed a motion with the judge, requesting that the new information not be allowed at trial because it was past the deadline. The judge ruled against the borrower. As a result, the borrower appealed his case to the reviewing court.
Motion for Continuance and Trial by Ambush
The borrower won his appeal. According to the appellate court, the borrower was correct for objecting to the introduction of the new evidence. This scenario of last minute evidence after a denial of a continuance motion was a "surprise in fact" and in violation of the rulings of the Florida Supreme Court (violating Binger v. King Pest Control, 401 So.2d 1310, 1313-14 (Fla.1981). Furthermore, it was a "trial by ambush" and a violation of the borrower's constitutional due process rights.
The case was reversed and sent back for a new trial.
Motion For Continuance During Foreclosure Trial
In a Florida foreclosure lawsuit, either side can file a motion to continue the case even if the trial has already begun.
Example of Bank Moving for Continuance after Trial Starts: the Serban case
An example of this type of continuance was made by the bank in the case of HSBC Bank USA, NA v. Serban, 148 So. 3d 1287 (Fla. Dist. Ct. App. 2014).
In March 2008, HSBC Bank (Bank) filed a foreclosure lawsuit against its borrower, alleging that he had failed to pay his mortgage payments.
The foreclosure lawsuit sat on the court's docket for five years without much, if any, action by the bank.
Courts Can Set Foreclosure Cases for Trial
In August 2013, the circuit court set the case for trial on October 17, 2013. This is a common practice by the courts to get old cases moved along and off the docket.
Courts have the power to set cases for trial without any party filing a motion asking that the case be given a trial date.
The court ordered the case be tried before a judge; no jury was required. (This is known as a "bench trial.")
Here, the case was set for trial in 65 days. Florida Rule of Civil Procedure rule 1.440(c) requires 30 days' notice, so the order gave the parties twice the minimum time required for its trial date notice.
Included in its notice-order was language requiring (1) the bank (Plaintiff) to file "all necessary documents" and be "present and prepared" on the trial date; and warning that (2) if either party was not ready for the Non-Jury Trial, they might be sanctioned which could include dismissal of the entire lawsuit.
The bank didn't object to this order. The borrower was allowed to amend his answer and formally assert more defenses before trial.
When the foreclosure trial date arrived, lawyers for each side appeared before the judge for the bench trial. At that time, the bank's lawyer announced he was ready for trial, but that he was requesting a continuance because of witness unavailability.
From the case, the bank's lawyer is quoted from the record as telling the judge:
"…. Wells Fargo is the servicer, Your Honor. All of the Wells Fargo witnesses are assigned out for other trials. I have been begging and trying to get a witness for the case, and the client has been trying to find somebody. But all of their witnesses are assigned out, and they couldn't have somebody here today. Your Honor."
The bank's lawyer admitted to the judge that he had known for at least a week before the trial setting that there was no witness available to represent the bank.
Good Cause for Continuance at Trial
So, the borrower's lawyer objected. He objected to the case being continued because (1) this was not good cause for a continuance; and (2) the borrower had already paid for the lawyer's time to prepare and appear on this trial date. It wasn't fair to ask the borrower to pay for this again.
The trial court judge agreed with the borrower. The motion for continuance was denied. The foreclosure case was dismissed as requested by the borrower (though the bank could refile under Florida Rule of Civil Procedure 1.420(b)).
The reviewing court agreed with the decision, noting that the bank had filed the foreclosure lawsuit over five (5) years before the scheduled bench trial, which was more than enough time to get a witness to represent the bank.
What Should You Do?
Having a foreclosure lawsuit filed against you isn't the end of your fight against the lender who is trying to take your home. An experienced Florida foreclosure defense attorney can help you both before and after the lawsuit is filed. Sometimes, that may even mean taking the case to the appeals (reviewing) court before justice is served.
If you are facing foreclosure, a good piece of advice is to talk with an experienced Florida real estate lawyer to learn about your rights, including those related to stays and continuances. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.
For more, check out our past discussions on residential foreclosures in Florida, including:
- Conditions a Bank Must Satisfy Before Filing a Foreclosure in Florida
- 3 Types of Foreclosure Defenses In Florida
- Can You Collect Attorney Fees From a Bank Related To A Foreclosure?
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Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.
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Source: https://aboutfloridalaw.com/2017/04/04/court-procedures-that-can-delay-foreclosure/
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