So what if I loose in the trial court? Then what?

In most states when a mortgage goes into foreclosure the property will be sold at auction and if the homeowner refuses to leave the property, the foreclosing party will sue to evict. The homeowner will receive a knock at the door and a Constable, or legal process server will hand the homeowner citation from the court and an attached copy of the eviction suit often called a petition for forcible detainer.

Many people don’t know how to file an answer and counter the action or even know that they can. The majority will find another place to live and walk away from the property, leaving their rights to the property inside as they leave the keys on the kitchen counter, lock the door, and close it behind them without ever putting up a fight of any kind, and the remaining few will decide to take a stand.

There’s a hearing date on the citation summoning the homeowner to come to court and argue why they should not be dispossessed of their property. Some people do know to file an answer and counter action, while many more just show up to court to do the best they can to keep from being evicted. Either way it is difficult to say the lease to put anything before a court of limited jurisdiction that a judge can actually hang his hat on to stop the eviction usually resulting in the defendants plea being dismissed or denied, ruling in favor of the Plaintiff.

In the mass majority of post foreclosure evictions the arguments of the Defendant homeowner resides in title such as; the bank didn’t file an assignment, the homeowner claims they did not receive certain notices, the foreclosing party was not a holder in due course, MERS messed up their mortgage or some other argument to those effects.

The lower (trial) court is the first court that a Plaintiff will file suit in as this is usually dictated by law. The lower courts are all courts of limited jurisdiction and only have the authority to hear arguments regarding simple possession, and all the trial court needs to hear a Plaintiff’s petition is color of title. Title issues can get very complex and therefore these issues are better suited for higher courts accustomed to hearing more complex issues.

Dismissals of Defendants’ claims are common place and as a Defendant you should not be surprised or upset that your defense or plea was dismissed. Keep in mind at all times, in 99.9% of the eviction cases a Defendant should go to court with the expectation of loosing, and therefore leaving the only purpose for the trial court for setting the record for appeal.

Many who fight an eviction and get a dismissal from the court tend to think that the dismissal is the end of the road, and that’s, the end, there is no more. Nothing could be further from the truth. There is plenty left that can be done.

In order for a court to factually be able to dismiss a cause or a defense implies that there was actually something there to dismiss. The court has seen something, so what and why is the court dismissing? What were the grounds for the dismissal? Where the issues without merit, or where the issues meritorious but outside the jurisdiction of the court?

If the former, consider having an order repaired to that effect,

For example,

(Document style i.e. Plaintiff v. Defendant § Court; County; State)

ORDER

On the _____ day of              , 20      came on to be considered, the Defendant’s Plea to the Jurisdiction filed on the _____ day of                 , 20      .

This court, having seen the facts and heard the arguments of both parties, finds the Defendant’s argument is baseless and without merit, and therefore this Court dismisses the Defendant’s plea.

The Defendant’s plea is dismisses for lack of merit.

IT IS THEREFORE ORDERED that the Judgment rendered by this Court in favor of the Plaintiff.

           Signed on this the        day of            , 20      .

                                                                  

The Honorable (judge)                           

Precinct                                                    

County, State                                           

If the latter, consider having a separate order repaired to that effect,

For example,

(Document style i.e. Plaintiff v. Defendant § Court; County; State)

ORDER

On the _____ day of              , 20      came on to be considered, the Defendant’s Plea to the Jurisdiction filed on the _____ day of                 , 20      .

This court, having seen the facts and heard the arguments of both parties, takes notice of genuine issues of material fact in the defense, however the Defendant’s argument is not within the jurisdiction of this Court and cannot be heard and therefore this Court dismisses the Defendant’s plea.

The Defendant’s plea is dismisses for want of jurisdiction.

IT IS THEREFORE ORDERED that the Judgment rendered by this Court in favor of the Plaintiff.

           Signed on this the        day of            , 20      .

                                                                  

The Honorable (judge)                          

Precinct                                                   

County, State                                          

Getting the reason for a dismissal on the record is a good way to find out your strengths and your weaknesses in your plea to the court, and will give you an edge on what direction to approach your appeal.

Do not rule out the fact that miracles do sometimes happen, and in that event be prepared to provide the court with an order in your favor.

For example,

ORDER

On the _____ day of              , 20      came on to be considered, the Defendant’s Plea to the Jurisdiction filed on the _____ day of                 , 20      .

This court, having seen the facts and heard the arguments of both parties, takes notice of genuine issues of material fact in the defense, and finds the Defendant’s plea meritorious, therefore this Court dismisses the Plaintiff’s original petition with prejudice to the filing of the same.

The Plaintiff’s original petition is dismisses for                                                                           .

IT IS THEREFORE ORDERED that the Judgment rendered by this Court in favor of the Defendant.

           Signed on this the        day of            , 20      .

                                                                  

The Honorable (judge)                           

Precinct                                                    

County, State                                          

The next step would be to perfect an appeal. In many states, an appeal from the trial court is a new trial or “Trial De Novo”. A new trial is held as if the hearing in the trial court never took place because most small claims courts are not courts of record. In this situation in most states an appellant is afforded an opportunity to file new or recently discovered evidence that was not filed in the trial court again because there is no record from the trial court outside what was filed. However the appellate court has no more jurisdiction than did the trial court. The appellate court cannot hear your arguments in regard to title any more than did the trial court.

This is your opportunity to file an adverse pleading in a court that does have proper jurisdiction and the authority to hear your title issues. Filing an adverse motion in a higher court will not stop the Plaintiff from moving forward with the action for possession, however in the higher court you can petition for temporary injunctive relief in the form of a stay of execution on the writ of possession.

There are a lot of things you can do in the higher courts that you cannot do in a lower court with limited jurisdiction.

Steve Skidmore

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