Pro se legal representation refers to the instance of a person representing himself or herself without a lawyer in a court proceeding, whether as a defendant or a plaintiff and whether the matter is civil or criminal. Pro se is a Latin phrase meaning "for oneself". This status is sometimes known as propria persona (abbreviated to "pro per").
Florida is a judicial state when it comes to foreclosure. That means your lender has to sue you in court in order to foreclose on your property. In a non-judicial state such as Georgia, the mortgage document contains a "power of sale clause". The clause gives the lender pre-authorization to sell your property without a court order. If you've just been served a foreclosure summon, do not panic. Your worst mistake would be to ignore it. If you do not respond to the complaint, you've given an easy victory to the mortgage company. Usually you have 20 to 30 days to respond; if you do not respond, a default judgment will be entered against you, and eventually you will lose your house. You must file an answer within that timeframe. Most people are intimidated by the judicial system. If you can overcome your initial fear, you will be immensely rewarded regardless of whether you win or lose. You must be prepared to leave behind the idea that a) the law is about justice b) that all attorneys are honest and follow the law c) that judges must take the side of justice. U.S judicial system is based on an adversarial contest between the plaintiff and the defendant. The judge has to be impartial to both parties. If the plaintiff cheats and lies in court, don’t expect the judge to raise the matter. It is the responsibility of the defendant to raise the issue. For that reason, you must be vigilant at all time and never trust the authenticity of anything the plaintiff attorney presents. Your weapon is the law.
To buy time, you can file a Motion for Enlargement of Time or a Notice of Appearance. You can ask for 20 extra days to file your answer. Sample pleadings are available on the Pleading section of this web site.
Call your county courthouse and get the contact info of the judge assigned to your case. Write down the name and address of the Judicial Assistance of the judge and the recording office of the court. Some courts allow you to file by mail; you can also go directly to the courthouse to have your documents filed. A copy of each filing must be sent to the plaintiff attorney and in some cases to the judge office. Call the judicial assistance for more information.
Anatomy of A Foreclosure Complaint
You've been served a foreclosure summon. That means the bank is suing you to get the property that secured your loan. With the summon, you will find the complaint detailing what you're being sued for.
The foreclosure complaint is made of several parts.
- Style of the case: this is the section that list the plaintiffs and the defendants. For example "BANKSTER BANK VS JOHN SMITH";
- The case number;
- The title;
- An introductory paragraph;
- Numbered paragraphs;
- Demand for relief;
- Certificate of service;
- A signature block.
Foreclosure Defense Road Map For Judicial States
1) You’re at least three months late on your mortgage payment.
2) The servicer or “lender” sends you a Notice of Default
3) Send a Qualified Written Request to the loan servicer. They have twenty days to acknowledge receipt of your request; then they have sixty days to provide the information demanded.
4) You receive a foreclosure complaint. You have 20 to 30 days to file a response to the complaint. Check the document for exact deadline. Failure to timely respond to the complaint will result in a default being entered against you. In a sense, you’ve given an easy victory to the plaintiff.
5) If the plaintiff is a trust, a defunct bank, or a bank not registered in your state, file a “Motion to Dismiss For Lack of Capacity”.
6) If the plaintiff is an entity from another state and did not post a cost bond, file a “Notice of Failure of Plaintiff to Post Non-residential Cost Bond”. After twenty days if plaintiff has not posted the cost bond, file a “Motion to Dismiss For Failure to Post Cost Bond”. Schedule a hearing and bring a court reporter to the hearing.
7) If there is no assignment from the original lender to the current plaintiff, file a “Motion to Dismiss For Lack of Standing”.
8) If plaintiff files an “Affidavit of Amount Due and Owed”, file a “Motion To Strike Affidavit of Amount Owed”.
9) If plaintiff files a Motion for Summary Judgment, file an “Affidavit Opposing Summary Judgment”.
10) Send your interrogatories. If plaintiff does not answer the interrogatories in a timely manner, file a “Motion to Compel” and schedule a hearing. Make sure to bring a court reporter.
11) File your answer, affirmative defenses and counter-claims if necessary.
12) Request for production of documents.
13) Schedule deposition to depose affiants.
How to Find a Competent Foreclosure Attorney
If you can afford an attorney, it is advisable to hire one to defend your foreclosure. The big “if” of course is affordability. Having said that, we should keep in mind that all attorneys are not created equal. An incompetent attorney can cost you money and your case; there are enough of them to be wary. Here is some advice in finding a good foreclosure attorney.
Once the initial foreclosure complaint is filed by the plaintiff, your name and address will become public record and will be available for mass mailing. You will certainly receive numerous solicitations from local attorneys. Armed with the solicitation letters, go to your county clerk web site and do a party search on some of the attorneys on your list. Some counties’ system allows you to do searches by parties; some systems do have that functionality. Once you’re able to pull a list of cases with the attorney as a defense counsel, check the docket entries. Has the attorney been fighting vigorously for his/her clients?
By reviewing a few cases, you can determine how good an attorney is.
Has he files any pre-answer motions?
Has he filed any affirmative defenses and counter –claims?
Was he persistent in his discovery method?
What is his win/lose ratio?
If you want more information beyond dockets review, go to the court house and request to see the files you’re interested in. Read the pleadings filed by the attorney. You can even make copies to take home. Once you feel comfortable with an attorney’s competence, then you should make the jump. There is no guaranty, but at least you made an educated guess.
Get Organized
As a pro se defendant, you can easily be overwhelmed by the sheer amount of information and papers being generated about your case. If you don't manage the flow of information efficiently and in a systematic way, you could make serious mistake down the road. One should purchase a) 1 1/2 binder b) 3 hole paper punch.
When you receive any document, punch and file it in the binder. That way you have everything in one place and easy to browse. You're going against professionals, so be professional in your organization.
