Legal Question in Real Estate Law in Florida
In a foreclosure defense case, "could a foreclosure sale date be assigned at a hearing" for a motion to dismiss lis pendens (filed by defendant), and a motion to strike affirmative defense (filed by plaintiff) where it is expected the plaintiff will demonstrate he owns the mortgage on property?
2 Answers from Attorneys
If a foreclosure sale date is assigned at the hearing, the defendant lost the case. The Motion to Remove Lis Pendens may succeed if it is not based upon a duly recorded instrument which was recorded before the date the lis pendens was filed. There should also be a Defendant's Motion to Dismiss filed if there is a question whether the Plaintiff owns the mortgage or if it has not been transfered properly. The Motion to Strike Affirmative Defenses, even if lost, should not be a determinative outcome in the case. A Motion for Summary Judgment or trial will be the final outcome in the case.
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