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1 . Pro Se Tip Florida: We have seen home owners do Motions to Dismiss because the foreclosure complaint is not notarized. The foreclosure complaint does NOT need to be notarized. It must be "verified". The verification is different than an oath. An oath must be notarized. A verification can be under "information and belief" or "knowledge and belief". An oath can not be worded that way, it has to be unequivocal.

2 . Pro Se Tip Florida: Although the complaint is "verified" that is not good enough for a summary judgment. The summary judgment must be supported by an affidavit which is sworn as true under oath, with notarization. The complaint is not adequate.

3 . Pro Se Tip Florida: You can NOT file an Answer and a Motion to Dismiss. In fact, you don't have to file an Answer within 20 days. The rule is that you have to file a Responsive Pleading. The response can be a Motion to Dismiss or something else. Check your state civil rules. You can't file the answer first or at the same time.

4 . Pro Se Tip Florida: A complaint can be amended once without leave of the court at any time BEFORE an Answer is filed. If you are the plaintiff, and the defendant does not file an Answer but files a Motion to Dismiss, you will then see any problems with your complaint and can amend it. You can file the amended complaint anytime before the hearing on the Motion. If you are the defendant filing the Motion to Dismiss, don't be surprised by a last minute amended complaint. Of course, if it is done right before the hearing and it then moots the hearing and wastes the court's time, the judge is going to be pissed. Always best to talk to opposing counsel and cancel the hearing. I did that once, five days before the hearing and got a stern lecture, but there was nothing else the judge could do.

5 . Pro Se Tip Florida: Motions to Dismiss are on the basis of the complaint's inadequacies as a matter of law such as failure to state a claim or statute of limitations as well as others. A Motion for Summary Judgment is on the record in the case so it is important to have evidence such as sworn affidavits on file before the hearing. (A mimimum of 5 days in Florida.) A Motion for Summary Judgment can not be granted if there are any material facts in dispute. If there are disputed material facts, then the case must go to trial.

6 . Pro Se Tip Florida: In Florida and other states there is a proceeding that is rarely used but is completely viable under proper circumstances. This is a Motion to Strike a Sham Pleading. It is a motion to strike the complaint as a sham and fraud. This is similar and different to Summary Judgment. In this motion, you can have witnesses give live testimony. It is a mini-trial. I have defendants try these on me as the plaintiff. This really develops the record and flushes out the case. A good record is important on appeal too.

7 . Pro Se Tip Florida: A Motion to Strike can ONLY be used on Pleadings. A complaint, answer, affidavit, and limited other things. You can't use a Motion to Strike on other motions or on briefs/memorandum's of law.

8 . Pro Se Tip Florida: How do you handle affirmative defenses? If you are the defendant, you should list your affirmative defenses after the answer or in a separate document served at the same time. In some states you only need to put the other party on notice of your defenses. Florida is a fact pleading state and the party filing affirmative defenses should state enough facts to establish a foundation for each affirmative defense. In federal court, fact pleading is required, thus adequate facts should be included to form a basis for the defense. The same goes for complaints in federal court, fact pleading is required. You want to include enough facts and ultimate fact to be able to withstand a motion to dismiss. Personally I think fact pleading is a good idea in state court too and it has served me well in winning motions to dismiss by defendants.

9 . Pro Se Tip Florida: A tactic available to the plaintiff is to file a motion to strike affirmative defenses. This is a good way to try to get rid of really outrageous affirmative defenses or if they don't follow the rules and put the defendant on notice. Of course, what usually happens, in the rare cases where the motion is granted, is that they are dismissed without prejudice and the defendant gets to file them again. If you want to cause the defendant to spend money, this is a good way to do it. When the defendant files affirmative defenses, other than a motion to strike, what can the plaintiff do then?

10 . Pro Se Tip Florida: After affirmative defenses are filed or refiled after being stricken, then what does the plaintiff do? It depends and you should research your state's rules promptly. You may only have 21 days to file a reply in opposition to the affirmative defenses. In Illinois for instance, if you do not reply to the affirmative defenses, they are deemed admitted. That can be a real gotcha for a plaintiff. It can be a real benefit for a defendant in a foreclosure, assuming it is raised in trial. In Florida, Michigan and many other states a reply is not required and affirmative defenses are automatically deemed denied. However, if you want to raise new issues (an avoidance) not included in the complaint to oppose affirmative defenses, then you MUST file a reply, or those issues are waived. An avoidance is an allegation of additional facts. In Florida, never file a reply to affirmative defenses that just deny the defenses.

11 . Pro Se Tip Florida:In U.S. District Court (federal court) replies to affirmative defenses are not permitted. It is recommended that all affirmative defenses be fact pled to meet federal pleading requirements. Many courts do not consider affirmative defenses as "pleadings". Generally, only pleadings are subject to motions to strike. Defendants might demand an answer to the affirmative defenses, but that is irrelevant unless state civil rules require answers to affirmative defenses. Check your state rules to see what is actually considered a "pleading". There might be need of a consideration if affirmative defenses are included in the answer are filed as a separate document. This might be significant in certain jurisdictions and the advice of counsel is recommended.

12 . Pro Se Tip Florida: A party can not deny a statement for which it lacks information and belief. One federal court has called such a practice "oxymoronic". Some local court rules, such as the Northern District of Illinois, Local Rule 10.1, requiries that an answer repeat the contention before responding to it.

13 . Pro Se Tip Florida: If you get to trial, NEVER give your original jury instructions to the judge or the judge's clerk. Always provide a copy. Always file your original jury instructions with the Clerk of Court so that they are part of the record and you will have a record of them on appeal. Also remember to object to any jury instructions on the record to preserve that objection for appeal.

Judicial v. Non-Judicial Foreclosures

Dan F. Schramm
Park Place Securities, Inc.
2011 Flagler Avenue Key West, FL 33040-3732

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Domain Registration and Web Hosting by Blue Planet Registrar Corporation is (c) Copyright 2023 by Park Place Securities, Inc., a Florida corporation and Dan F. Schramm. All Rights are Reserved.

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