Learn the Florida Foreclosure Process and Fight for Your Home
The Florida foreclosure moratorium ended a year ago, and now the federal foreclosure moratorium has not been extended further. This has left many wondering what exactly is the Florida foreclosure process?
You may have special circumstances that will help you if you are facing foreclosure, and your Florida debt collection defense attorney can help answer your questions.
This article, however, addresses the Florida foreclosure process, so those facing foreclosure have an idea what to expect and can get the help they need.
The Legal Basis for Foreclosure
If you can’t pay your mortgage, a lender can’t just come in and take over your home. Both federal and Florida laws give you rights and protections before a lender can foreclose on your hom.
In Florida, a lender needs to take you to court to foreclose your mortgage. They will file a complaint in the circuit court where your home is located in order to get a a judgment of foreclosure and writ of possession.
When you bought your home and obtained your mortgage, you no doubt signed both a mortgage and a promissory note.
- The promissory note is your promise to repay the loan and the terms for doing so.
- The mortgage gives the lender a security interest in your property that enables them to take your property if you don’t make payments on the promissory note.
How Past Due Must I Be Before I’m in Default?
Under federal law, with some exceptions, you must be over 120 past due on your payments before a lender can begin the foreclosure process.
Before the Foreclosure
If you miss a mortgage payment and don’t pay within the grace period indicated in your promissory note (usually 10 to 15 days) when your mortgage is due, your lender will charge a late fee. If you miss more than one payment, your lender will try to collect and send you collection letters.
Once you go into default there may be other fees, such as to pay for an inspection, broker’s price opinion fees (similar to an appraisal) and costs to preserve the property such as yard maintenance.
Loss Mitigation Options Notification
Foreclosure is not going to come as a surprise if it happens. Under federal mortgage servicing laws, the servicer must try to contact you by phone to discuss loss mitigation options, which are alternatives to foreclosure such as a repayment plan. They must do this within 36 days after you miss each payment.
Within 45 days, the servicer must send you a letter telling you about loss mitigation options and appoint a representative to work with you on it. Of course, if you file for bankruptcy or inform the servicer not to contact you, this will not apply.
Before the 120 days runs, you will want to submit a loss mitigation application to the lender.
Notice of Default
Usually, most mortgages require the servicer to send a Notice of Acceleration letter to inform you when you are in default. The letter will demand that you pay the amount in full by a certain date or expect a foreclosure action to be filed in court within 30 days.
Once your property is in default, expect the lender to order a property inspection to check if you are living in the home and maintaining it. Usually, this inspection is in the form of a drive-by.
Debt Validity Dispute
If you think you do not owe what the lender is demanding, under the Florida foreclosure process you can dispute the mortgage debt’s validity and send a letter to demand that the lender verify the debt. While this is going on, the lender must stop all collection actions.
Why Go to Court?
There are a lot of reasons it might be advisable to go to court even if you really do owe the debt. Even if the lender eventually wins, a good Florida debt collection defense attorney may be able to take actions to defer foreclosure for quite some time. The lender may have also committed violations of protective laws that will enable your attorney to lay serious hurdles in the lender’s path to foreclose your house.
The Summons, Complaint and Lis Pendens
If the homeowner and lender cannot arrive at a solution and the home owner remains in default, the lender can file a lawsuit asking permission to hold a foreclosure sale. After you receive a Notice of Default, the next thing you can expect is for a process server to deliver a summons and a copy of the complaint and Lis Pendens.
The Clerk of Court will file a Lis Pendens in the public records that a foreclosure has been filed against your property. The purpose is so the foreclosure appears in title reports.
Don’t bother trying to avoid the process server. If they can’t hand you the summons directly, the lender can serve you through publication.
Usually, under the Florida foreclosure process, you have 20 days to answer the lender’s complaint. As with any lawsuit, if you don’t answer the complaint, the court will grant the lender a default judgment and the foreclosure sale will proceed. In the answer you set forth any defenses you may have.
Of course, you have the right to appear at a hearing and make the lender prove its case. Your actions and defenses depend on your situation. Be aware you can remain in your home throughout the court process and need not move unless the property is foreclosed.
Even if the debt is valid, if your attorney can show the lender violated state or federal laws, that can make it difficult for them to foreclose. These may include (among others)
- HOEPA: Home Ownership and Equity Protection Act
- TILA: Truth-in-lending Act
- RESPA: Regulation Z of the Real Estate Settlement Practices Act
- FDCPA: Fair Debt Collection Practices Act
Even if you owe the money, the harder you can fight, the more likely you are to get an advantageous settlement. Banks don’t want to spend a lot of time and money on difficult cases.
Motion to Dismiss
Discuss with your Florida debt collection defense attorney whether there may be grounds to file a motion to dismiss the complaint. Perhaps the lender violated procedural requirements or does not have the paperwork they need to prove the debt.
You can request relevant documents, demand written answers to questions and depose witnesses through the process of discovery. Of course, the lender may do the same. A savvy attorney can sometimes turn up information that can stop a foreclosure.
Should you decide to go to court, the lender can still ask for a summary judgment on the grounds that there is no dispute about your case’s critical issues. If the judge grants summary judgment, the lender has won and will order your home sold at auction. A good debt collection defense attorney can advise you of the likelihood of this happening if you go to court.
After Final Judgment
If the lender is able to get a final judgment against you, the Clerk of Court will schedule a date when your house is to be sold at auction. This is 20 to 35 days after the judgment under Florida law unless otherwise ordered.
Notice of the Sale
Florida law requires the lender to put a notice of the sale in the newspaper every week for two consecutive weeks and again at least five days before the sale.
It’s common for lenders to sell foreclosed property at substantially under the market value. Should the lender sell your property for less than the amount you owe, they can then apply to the court for a deficiency judgment. This judgment remains valid for 20 years, and the lender can keep trying to collect until it is beyond the statute of limitations.
This, of course, is another very good reason you should try to fight a foreclosure.
After the sale, the clerk of court will promptly file a certificate of sale. You then have 10 days to file an objection to the sale. If you don’t object, the clerk of court will issue a title certificate to the buyer.
Learn Your Rights
As you can see, there are a lot of moving parts to the Florida foreclosure process. At different points in the process, you may have the ability to stop the foreclosure. Don’t just sit back and give up. If your lender is threatening to foreclose, contact us at Ziegler Diamond Law: Debt Fighters for a free consultation by submitting this form. Or just call us directly at (727) 538-4188 in Clearwater, (813) 225-3111 in Tampa or (352) 600-1326 in Mt. Dora.
Don’t put it off. Call today and protect your home.