Title Company with Richard P. Zaretsky P.A. - Board Certified Real Estate Atty and AUTOMATED LAND TITLE COMPANY


Today I used a new technical defense to successfully defeat a motion for summary judgment for foreclosure and I wanted to pass it on to other attorneys (or those who know attorneys) helping homeowners in foreclosure.

This happened in Florida, but other states' rules could provide the same type of relief.

The bank filed its foreclosure some months ago and the homeowner tried to represent himself and did a poor job of it because there were several deficiencies in the pleadings filed by the bank.  Then I came into the picture just 8 days before a scheduled court hearing to grant the bank's Motion for Summary Judgment of Foreclosure, at which time the public sale date for the house would have been set.

As with most foreclosure suits the promissory note could not be produced so the bank was going to produce at the hearing an Affidavit of Lost Promissory Note.  This is permitted under a special state statute that creates a mechanism to prove up a financial instrument that was lost by the holder.

However, the Rules of Summary Judgment say that any pleading to be used by the moving party (here, the bank) must be filed with the court and provided to the other parties at least 20 days prior to the hearing.

The bank complied with the lost note statute (they had the lost note affidavit to give to the judge), but not the court rule about the 20 days, I argued -- and the judge agreed and denied their Motion for Summary Judgment.

This whole exercise was not to create a delay so the client can live in the house for free -- it was obtained so the client can complete a short sale (he still needs a buyer) and avoid a foreclosure deficiency judgment that will haunt him for the next 20 years.

I pass this on in the hope that this customary practice by the lenders will be recognized by attorneys and used to help out those needing more time to find a better solution  than foreclosure.

Copyright 2009 Richard P. Zaretsky, Esq.


Be sure to contact your own attorney for your state laws, and always consult your own attorney on any legal decision you need to make.  This article is for information purposes and is not specific advice to any one reader.

Richard Zaretsky, Esq., RICHARD P. ZARETSKY P.A. ATTORNEYS AT LAW, 1655 PALM BEACH LAKES BLVD, SUITE 900, WEST PALM BEACH, FLORIDA 33401, PHONE 561 689 6660 email:  - FLORIDA BAR BOARD CERTIFIED IN REAL ESTATE LAW - We assist Brokers and Sellers with Short Sales and Modifications and Consult with Brokers and Sellers Nationwide!   New Website

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Re-Bloggged 3 times:

Re-Blogged By Re-Blogged At
  1. Roland Woodworth 04/14/2009 11:08 PM
  2. Yvette & Dennis Gardner 04/15/2009 07:33 AM
  3. Gabe Sanders 04/16/2009 06:59 AM
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J. Philip Faranda
J. Philip Faranda (J. Philip R.E. LLC) Westchester County NY

You did a good thing (I can't believe I am praising a lawyer), and I appreciate that you shared it with us. I do quite a few short sales and your client is lucky to have your advocacy. 

April 16, 2009 09:11 PM
Anonymous #55

That is all well and good but the bank will still come after them for any deficiency that stems from the short sale. Unless it was a purchase money loan the bank reserves the right to a deficiency judgment. They are selling the HELOC's to attorneys who are suing the clients for the difference. You are not out of the woods yet. The best avenue is bankruptcy. They they cannot collect 

April 19, 2009 05:58 PM
Josh Holt
Southern Maine and NH Real Estate - Your Source of Info on the Berwicks
RE/MAX Coast To Coast~ Dedicated to You!

Great job. You just helped save this guys life. Irene, depending on how the short sale is completed, most often, the bank accepts the amount as "settled for less than owed, no further amount due."

May 02, 2009 07:51 AM
Anonymous #57

I landed on this blog seeking info on forclosure defense.  I will post this as someone from the other side of the coin.  Here's the story:  Husband disabled 18 mos ago.  Hearing coming up Aug 08.  Informed lender HOUSEHOLD FINANCE of the situation from day one.  We caught up the arrearage from last year, fell behind again after an auto accident at the end of last year for me.  Kept lender in loop whole time.  Called HOPE NOW got credit counseling but no help there.  Put in ACORN housing's plan in April, still keeping lender in loop.  Lender tells us for 6 mos we are in hardship dept. then files forclosure on us.  I have found a job (a miracle in Florida's economy) after 14 months of looking.  HFC will not accept any short sales.  They will not do any mortgage modifications.  PERIOD. 

I PROMISE you we never intended to "live rent free" in our home of 12 years.  It is not a flip, it is not a house grab, we did not refinance and pull money out of our home.  WE ARE NOT BAD PEOPLE.  There are some bad people out there but we are not.  Frankly I hope Andrew had enough savings to get him through a tanked economy like ours, because his turn is coming.  Anyway the point of this post is that if you have a deal with HFC, forget it.  We will use every available means to force them to work with us, and if the continue to choose not to, we will lose our home.  It is an american tragedy and it happens every day.

So Andrew, keep your holier than thou thoughts to yourself until you have walked a mile in these shoes.  And the rest of you please keep helping your clients.

June 23, 2009 01:02 PM
Anonymous #58
Short Sale is a joke

My (now) husband applied for a short sale early March with Taylor Bean as he was laid of from construction in November and with no work in sight he was exhausting his savings and wanted to do the right thing with a short sale rather than just walk away (he's still unemployed).  Have had ONE person look at house (the past nine months) and luckily they contracted on it end of March for $110K, listed at $119K.  Owe(d) $146K on a $146K interest only loan taken out three years earlier (husbands fault, he should have talked to professionals).  Never heard a word from TB except to keep sending in repeat paperwork.  5 months later Taylor Bean is in trouble and the account is transferred to Ocwen.  He had to start the entire process over again and had to submit application twice as they lost it.  Buyers still hanging on and want the house.  Two EXACT homes and one larger on the SAME street and subdivision has sold in the past eight months for $90K, $110K and $95K respectively.  End of September Ocwen said their market analysis indicated $110K was too low (all 3 homes above were in the sales records at property appraiser and we never got a copy of their market analysis).  Buyers held at $110K.  Ocwen never answered and filed a lis pendens on 12/17 and we are waiting to be served (me as homestead spouse, not on loan).  Ocwen sent notice last week that the house insurance is due, it was escrowed the past three years, and when was he going to pay it??  Husband called and found out then that the short sale had been closed (they never mentioned that they filed for foreclosure on the phone) and he explained the three sales above and Ocwen offered to do another market analysis but as slow as they work they won't have it done by time our response to the complaint is due, which we have all the paperwork ready to submit showing that we have a sales contract on the house and his good faith to work with and settle yet Ocwen refuses to cooperate and is being unreasonable and only adding costs by not taking a very fair, reasonable and comparable offer for the house and filing for foreclosure.  This is sickening.  Husband used up all his savings while working with these (insert not so nice word) and they just don't care.  Where was the couple that the court ordered their home free and clear because the bank didn't move on their loan modification yet indicated they were and filed for foreclosure instead?  Not that he wants the house, he has moved out and into my house which I owned before we got married but it is now the principle that these mortgage holders do not cooperate with people.  Should we just let the house go through foreclosure or get an attorney and fight it?  I'm hoping the court would take into consideration the sales contract in which the buyers have held onto for nine months and see his cooperation and order Ocwen to work with him on the short sale.  Is that a possibility?  Also, I owned my home prior to us getting married.  It is still deeded in my name only as a single person (but as we are married now it is his too) and I was not a party of his home in foreclosure (except that we are now married).  Can this touch me or "my" home?

December 27, 2009 07:19 AM
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Richard Zaretsky

Florida Real Estate Attorney
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Legal true life experiences, general observations and commentaries for Realtors, Lawyers and Mortgage Brokers - also see our Palm Beach County Short Sales group blog.
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