Notice of Cause at Issue

[abodiford]

This is my first post, I have successfully navigated my BK by "researching" every step on this forum. To say it's been beyond helpfull is an understatement. I have a question regarding the most recent activity in our foreclsoure. We were discharged 3/11 and inculuded our home in the bk. We stopped paying 9/10 and on 11/12 finally got out served our lis pendens. We did not respond as we are not contesting the foreclosure, we've been living here in order to protect ourselves until the house is out of our names. I was expecting a summary judgement to be the next course of action, however got paperwork Friday saying .."Notice of cause at issue" and that our bank is asking for a non jury trial set for 15 minutes. I have tried to research and find out what this means and how it differs from a summary judgment and I have not been able to get a logical answer. So here I am after almost 2 years on here, actually asking a question.. Thanks so much in advance for any help.

[HHM]

First, what state are you in?

Assuming the Notice of Cause is not part of the regular foreclosure process, to even answer, we would probably need some more information from the docket history.

[abodiford]

I am in Florida. The docket only shows the lis pendens and who all it was served to. Me my husband the hoa etc.This current action is not there yet. I would think without any response from us there should be no need for a trial at all but simply awarding to fc to the bank. But Im never safe to be the one thinking... :-) The other letter we got was a anotice of dropping unknown spouses and tennants.

[abodiford]

After re reading your comments about assuming the notice of cause is "not" part of the foreclosure.. I'm really more confused than before. It's from the attorney for the bank in the foreclosure.. so I would assume it was part of the foreclosure process.. Maybe I didn't ask the right question to start off... sorry about that.

[HHM]

I am merely speculating that the Notice may just be part of the regular foreclosure process. We have plenty of members in FL that will probably chime in on FL foreclosure procedure.

[Floridagail]

I received a notice for non jury trial 10mins , I also go the notice for summary judgement in a separate notice, the hearing date kept being changed but it finally was set for the Feb 7 in Middle dist of Florida. I think it is just one of notices they send before the hearing. We got several other notices i assume are them cleaning up it all b4 the hearing. Did they set your hearing?

[abodiford]

Not yet, I haven't gotten anything in the mail and there is nothing on the docket. I did however call the attorney for the bank and they said it was their way to speed up the process and a hearing would be the next step. I hope to hear something soon. As helpful as its been to save a little money while we were waiting, our lives have been on hold for a long time now. We are ready to move on safely with the house out of our names. I would love to hear what happens at your hearing, just so I can know what to expect. I am in the middle district as well. Thanks for the information Floridagail...

[Floridagail]

That makes sense, keep us updated, I will post as soon as anymore developments, Mypartner is filing chptr 7 this week, so it may be canceled due to that.

[abodiford]

It looks like our case is moving. I looked at the docket and the bank has filed a "motion for default and default" and said they mailed copies to the parties involved that was back on 2/7 and I've not gotten anything. I am not 100% sure what motion for default and default means, but I'm hoping it means there will be a hearing soon so the judge will rule for the bank and set a sale date. I am not going to the hearinng, but I would think I would be allowed to go if I wanted to so I hope to get something in the mail with details. We are 2 years post bk and looking to relocate this summer. It would be a blessing to have this house behind us and out of our names.

[Floridagail]

I am with you. Our hearing Feb 7, got cancelled due to hubby filing chpt 7,feb 6, ( we pray it goes thru , as he is over median but due to house pmt being so high and business truck and car payment and mortgage errearages the attorney things it will go thru as 7). We also got the notice of default motion also. Our forclosure is dead in its track now until the bank files motion to lift the bankrupty stay.
We are hoping for them to do it after the 3-14 341 meeting or the discharge May 13. We are hoping for a summer move out. We will see how fast the BOA attorneys move.
I will miss my Pond and wildlife, but not my neighbors. It will be strange to rent again, but I cannot even think of getting another mortgage in my mind.

[abodiford]

I wish your hubby luck on the 7. We were over the median as well, but had a very high work truck payment and sizeable house payment and a loss of income that helped keep us in a 7. It was scary to go through the process, but I can't believe it's been 2 years already. I hope they move quickly on your foreclosure once the stay is lifted and dont let you sit. That's the hardest part. Renting will seem odd, but it's much more favorable to us than to ever consider a mortgage again. What a nightmare this has been. I think I will forever be gun shy of signing a conract for anything other than a car again. LOL. Good luck at the 341 and the disharge....

[tobee43]

here's the whole thing in a "nutshell" as to why and what an order to show cause in the state of florida does and it's purpose.... hope it helps:



order to show cause; entry of final judgment of foreclosure; payment during foreclosure proceedings or an order to vacate the premises should not be entered.

" (a) Florida foreclosure law states that the order shall:

1. Set the date and time for hearing on the order to show cause. However, the date for the hearing shall not be set sooner than 20 days after the service of the order. Where service is obtained by publication, the date for the hearing shall not be set sooner than 30 days after the first publication.

2. Direct the time within which service of the order to show cause and the complaint shall be made upon the defendant.

3. State that the defendant has the right to file affidavits or other papers at the time of the hearing and may appear personally or by way of an attorney at the hearing.

4. State that, if the defendant fails to appear at the hearing to show cause and fails to file defenses by a motion or by a verified or sworn answer, the defendant may be deemed to have waived the right to a hearing and in such case the court may enter an order to make payment or vacate the premises.

5. Require the mortgagee to serve a copy of the order to show cause on the mortgagor in the following manner:

a. If the mortgagor has been served with the complaint and original process, service of the order may be made in the manner provided in the Florida Rules of Civil Procedure.

b. If the mortgagor has not been served with the complaint and original process, the order to show cause, together with the summons and a copy of the complaint, shall be served on the mortgagor in the same manner as provided by law for original process.

(b) The right to be heard at the hearing to show cause is waived if the defendant, after being served as provided by law with an order to show cause, engages in conduct that clearly shows that the defendant has relinquished the right to be heard on that order. The defendant's failure to file defenses by a motion or by a sworn or verified answer or to appear at the hearing duly scheduled on the order to show cause presumptively constitutes conduct that clearly shows that the defendant has relinquished the right to be heard.

(c) If the court finds that the defendant has waived the right to be heard, the court may promptly enter an order requiring payment in the amount provided in paragraph (f) or an order to vacate.

(d) If the court finds that the mortgagor has not waived the right to be heard on the order to show cause, the court shall, at the hearing on the order to show cause, consider the affidavits and other showings made by the parties appearing and make a determination of the probable validity of the underlying claim alleged against the mortgagor and the mortgagor's defenses. If the court determines that the mortgagee is likely to prevail in the foreclosure action, the court shall enter an order requiring the mortgagor to make the payment described in paragraph (e) to the mortgagee and provide for a remedy as described in paragraph (f). However, the order shall be stayed pending final adjudication of the claims of the parties if the mortgagor files with the court a written undertaking executed by a surety approved by the court in an amount equal to the unpaid balance of the mortgage on the property, including all principal, interest, unpaid taxes, and insurance premiums paid by the mortgagee.

(e) In the event the court enters an order requiring the mortgagor to make payments to the mortgagee, payments shall be payable at such intervals and in such amounts provided for in the mortgage instrument before acceleration or maturity. The obligation to make payments pursuant to any order entered under this subsection shall commence from the date of the motion filed hereunder. The order shall be served upon the mortgagor no later than 20 days before the date specified for the first payment. The order may permit, but shall not require the mortgagee to take all appropriate steps to secure the premises during the pendency of the foreclosure action.

(f) In the event the court enters an order requiring payments the order shall also provide that the mortgagee shall be entitled to possession of the premises upon the failure of the mortgagor to make the payment required in the order unless at the hearing on the order to show cause the court finds good cause to order some other method of enforcement of its order.

(g) All amounts paid pursuant to this section shall be credited against the mortgage obligation in accordance with the terms of the loan documents, provided, however, that any payments made under this section shall not constitute a cure of any default or a waiver or any other defense to the mortgage foreclosure action.

(h) Upon the filing of an affidavit with the clerk that the premises have not been vacated pursuant to the court order, the clerk shall issue to the sheriff a writ for possession which shall be governed by the provisions."

[abodiford]

Thanks tobee43... I read all of your post and understood most.. lol. We surrendered the house and did not sign reafirmation papers, so I hope the part about attorneys fees does not apply to us since we were granted the bk. We did not get an attorney to fight this, so I'm unfortunately not able to understand everything that's why this forum is so helpful. I will be checking the docket to see what they put on there next. My main concern is just timing of moving out.