CHAPTER 5 - Tested Motions, Responses and Directions

Written by Administrator

Regarding foreclosure cases: This chapter is concerned with the Motions that will assist you in defending your case against the plaintiff bank. Each and every one of the Motions set forth below have been successful at one point or another in a foreclosure case. The Motions presented within this Chapter are well crafted for specific situations and should be used after careful consideration of the facts of your case.

A good number of the foreclosure cases that we have seen lately are being prepared by a ‘foreclosure mill’. A foreclosure mill is a law firm that churns out pleading for plaintiff banks with the hopes that no one is paying attention. A vigorous and empowered challenge to the pleadings offered by these foreclosure mills is the least you can do to prevent the bank from taking your home.

Notice of Appearance: A Notice of Appearance should be the first document filed by the defendant in a foreclosure case. A copy of the Notice should also be sent to the plaintiff bank’s attorney. After filing with the Clerk of the Court this document notices all interested parties of your intention to appear as well as notices all interested parties of your address.

Motion to Dissolve Lis Pendens: A Lis Pendens is a document filed by a party to a lawsuit in the Public Records of the county in which the property is located. A Lis Pendens is intended to alert every interested person that a lawsuit has been filed against you and your property so that no one will buy, loan or refinance the property without first dealing with the lawsuit.

Motion To Dismiss, For More Definite Statement And To Set Aside Order To Substitute Plaintiff: The entire crux of this book is that in many of the foreclosure involving securitized mortgage the plaintiff bank does not own nor hold the note and mortgage. That does not stop the plaintiff bank from attempting to take your home from you.

Sample Motion:


OF ______________, IN AND FOR _______________COUNTY

Bank Case #:____________________

Division #:_______________








Defendant, by and through her undersigned counsel, files this Motion To Dissolve/Discharge Lis Pendens and for Attorney Fees and states as follows:

1. Plaintiff, ______________, filed this mortgage foreclosure action on ________________.

2. Plaintiff, as TRUSTEE, recorded a Lis Pendens, with respect to the real property at issue

in that case on ________________

3. Florida Statutes 48.23(e) states as follows:

lis pendens.—(3) When the initial pleading does not show that the action is founded on a duly recorded instrument or on a lien claimed under part I of Chapter 713 the court may control and discharge the notice of lis pendens as the court may grant and dissolve injunctions.

4. Plaintiff’s Complaint reveals the following allegation in Paragraph 4: The Mortgage was recorded on in Official Records Book _____ at page of the Public Records of _________County, Florida and mortgaged the property described in it, then owned by and possessed by the Mortgagors, a copy of the Mortgage and note are attached hereto as” Exhibit A”. Said mortgage was subsequently assigned to____________ AS TRUSTEE by virtue of an assignment to be recorded.

5. The only duly recorded instrument at the time the lis pendens was recorded in this case is the Mortgage attached to the Complaint as Exhibit A. Such instrument identifies the Mortgagee as __________________ . This entity is not the Plaintiff that filed this action and is not the entity that recorded the lis pendens that is the subject of this motion.

6. Further, the Complaint alleges that there was an assignment of mortgage to the Plaintiff but clearly states that such assignment was by virtue of an assignment to be recorded.

7. Review of the public records of __________County with respect to the real property that is the subject of this action reveals that there is no assignment of mortgage in favor of the Plaintiff recorded in the public records of _________County.

8. As such, the initial pleading by ____________________AS TRUSTEE, is not founded on a duly recorded instrument and the Court should discharge/dissolve the subject lis pendens filed by the Plaintiff.

9. Further, the Defendant ____________ is entitled to recover attorneys’ fees for the preparation and filing of this Motion and for the time spent arguing same at any hearing. S & T Builders v. Globe Props. 944 So. 2d 302 (Fla. 2006). An order on a motion to dissolve a lis pendens is treated as a final order. Loidl v. I&E Group, Inc., 927 So. 2d 1016(Fla. 2d DCA 2006)

WHEREFORE, the Defendant _____________ respectfully requests this Honorable Court Grant his Motion To Discharge/Dissolve the subject lis Pendens, award reasonable attorneys’ fees and costs, and award any other relief this Court believes to be fair, just and equitable under Florida Law.


I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to all parties of record this ______day of _________ 20____ via U.S. Mail postage prepaid.

Respectfully submitted

By: ______sign here__________

Your Name

Your Address

Your Phone


The Definitive Guide to Foreclosure Defense