Florida Foreclosure Defense: Palm Beach County Trial Win for The Law Offices of Evan M. Rosen

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Florida Foreclosure Defense: Palm Beach County Trial Win for The Law Offices of Evan M. Rosen

Cross-posted from The Law Offices of Evan M. Rosen

Just before trial starts, the Judge asks to see the file. She wants to review the Complaint and Answer. She takes a few minutes and then trial starts. Both sides waive opening statement – this is fairly common in foreclosure cases. After some brief preliminary questions, the Plaintiff seeks to move in the original note, indorsed in blank. I object – “it’s outside the scope of the pleadings. Plaintiff’s complaint, which was filed back in 2010, had no note attached and this was raised by the defense in the first answer, back in 2010 and TWO subsequent amended answers.” The Plaintiff’s attorney argued “as long as note is pled, they need not attach it to the complaint!” I remind the Judge of Florida Rule of Civil Procedure 1.130(a), titled “Instruments Attached.” It states, “[a]ll bonds, notes, bills of exchange, contracts, accounts, or documents upon which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleading).” The Judge knew exactly what 1.130(a) stated and immediate said to the Plaintiff’s attorney, “I reviewed the pleadings just a few minutes ago and in 30 seconds I saw what you and your firm should have seen 4 years ago, and yet, you have done nothing to fix!

The Plaintiff also never responded to or sought relief from our Request for Admissions(RFA) filed in 2010. I read out loud the key RFA’s into the record – “Plaintiff was not in possession of the note at inception of the lawsuit; Plaintiff did not have standing at inception; Plaintiff did not have the right to enforce the note.” There were a few others dealing with the Plaintiff’s failure to satisfy all conditions precedent to filing suit. I then approach and hand the Judge Professor Ehrhardt’s evidence book, turned to the pages addressing what he refers to as “judicial admissions.” No single author is more authoritative and accepted on the subject of evidence then Professor Ehrhardt. Every appellate court, including the Supreme Court of Florida has cited to him numerous times. I say, “judicial admissions are different from evidentiary admissions in that the former are uncontrovertible.” I also hand the Judge Florida Rule of Civil Procedure, 1.370(b) which states that matters which are not timely responded to are deemed admitted and are “conclusively established.” Plaintiff’s attorney stammers and admits she had no idea of this and disputes that RFAs were ever filed! I show her the docket entry which reflects that the RFAs were filing in 2010. Then, the Plaintiff’s attorney as part of her incoherent response says, “well the Defendant didn’t respond to the Plaintiff’s RFA’s either!” The only time I will interrupt opposing counsel in argument is when they state something as fact, which is just flat out not true. I don’t want them to taint the well and have me wind up in a mud fight. (In mud fights, both people have mud on their faces and no one knows who started it.) So, I cut her off immediate and say, “Judge, we got in this case in October of 2014. We saw that Defendant’s prior counsel had not responded some RFAs propounded to the Defendant. We immediately filed a motion seeking relief from those admissions, attaching proposed responses and we then quickly obtained an order granting such relief and deeming our responses timely filed. Plaintiff should have done the same!” Judge cuts me off, “I’m sustaining their objection! You had all this time to fix these issues and did nothing. The note is not coming in to evidence.

At this point, I offer to the Plaintiff’s attorney, quietly, to take an Voluntary Dismissal and I’ll gladly agree it can be w/o prejudice, as this might help on some statute of limitations issues. She emphatically says no.

Plaintiff attorney keeps limping forward, trying to put in the Mortgage, POA and AOM. I’m still doing my thing, objecting and seeking to voir dire as appropriate along the way, but then the Judge erupts on the Plaintiff’s attorney, “What are you doing? There is no way you can or are going to win this case! The note is not coming in to evidence! Why are you wasting our time!?!? Speak to your client or whomever and come back in here in 5 minutes and advise if you can take a different course of action then the one you are taking.” P comes back and announces they will take a Voluntary Dismissal! CASE DISMISSED!


If you are in Florida and are looking for help with debt and foreclosure, call us at (855) 55-ROSEN or fill out our online form for a FREE CONSULTATION. Let the lawyers and staff at The Law Offices of Evan M. Rosen serve you!




6 Responses to “Florida Foreclosure Defense: Palm Beach County Trial Win for The Law Offices of Evan M. Rosen”
  1. joaquin alonzo says:

    Its a win in many ways. !st it buys time and thats always good 2nd the law firm looks bad in the eyes of their banskster clients when they cant clean up all their fraud, so they will loose the account in the near future. 3rd Even if they file for a second time, they better have it right because a second loss is the same as a dismisal with prejudice.

  2. BOBBI SWANN says:

    Sorry, this is a win? Voluntary dismissal w/o prejudice? This is just a break that’s all. The Plaintiff will come back, refile with the note….done. Where in the world is the WIN?

    • Yes, it is a win. A dismissal w/o prejudice allows the statute of limitations to come into play.

    • Evan Rosen says:

      Hi Bobbi, the title makes it clear that this is a “…trial win…” Preparing for and winning a foreclosure trial, even if the client has paid as agreed, which this one did not, is no small feat.

      The saying don’t let perfection be the enemy of good came to mind as I read your post. While no one yet knows how the statute of limitations will play out, judgment of foreclosure was not entered in this case. Our clients are still in their home and they, like us, are thrilled with the outcome.

      • BOBBI SWANN says:

        Evan – The issue that I see at hand does not necessarily lie with how you prepared for the trial, but more importantly how the judicial system does not really live up to the word ‘justice’. I know that I am not the ONLY person who believes that our court system does not function in retrospect to the laws of the state. The scales of justice as depicted have tilted out of balance. I think defendants have proven that over and over again and yet the courts do not recognize the vast amount of fraud that was (and still is) being committed. I applaud you for being able to plug a hole in the wall, but it’s still leaking everywhere else. For your client to be able to stay in their home is wonderful news for them, yes, for now. I just can’t imagine that they won’t wonder from month to month or even day to day if or when that Plaintiff will come pouncing back.

        My hope for a “win” would be that campaign funds for elected officials (judges in particular) be restricted and/or limited. An overhaul of the justice system is long overdue!

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