Florida Foreclosure: Why You Shouldn’t Procrastinate If Your Florida Home is Facing Foreclosure, or If You Have an Underwater Mortgage.
Posted By Larry Tolchinsky on September 4, 2012
This is a warning to all Florida home owners who have any kind of foreclosure concerns. Please consider this information carefully.
This post is important: people are getting hurt from lack of knowledge and it needs to stop. It’s not just our Florida real estate firm here in Broward County that has lawyers wanting to bang their heads against walls or pull their hair out: all too often, clients come to visit foreclosure defense attorneys all over Florida late in the game – so late in fact, that for some they’ve already lost part of their case. Waiting to deal with Florida foreclosure issues is not only unwise, it can cause real harm to you and your family.
1. Following the Florida Rules of Civil Procedure Can Make or Break a Florida Foreclosure Defense Case
First, every Florida foreclosure is considered a civil lawsuit under Florida law and Florida rules of court procedure. There are specific rules that everyone follows in any civil lawsuit: how the paperwork should be formatted (the “style” at the top of the first page, the signature block at the end, etc.); how everyone gets notified that something has been filed at the courthouse (mail, e-mail, phone, etc.); even things like deposits, fees, and calendars are covered by the Florida Rules of Civil Procedure. (New amendments to these rules – the “FRCP” – just became effective on September 1, 2012, per Order of the Florida Supreme Court.)
These are state-wide rules; there are also federal rules of procedure, as well as rules for the particular courtroom. Procedure is important: suits can be dismissed and permanently thrown out for failure to follow them. Lesser sanctions are also possibilities for those who fail to follow proper procedure: certain facts won’t be allowed into evidence, some arguments will be barred from being presented; even some defenses – no matter how valid – may be blocked because procedure has not been respected.
Lawyers are well-acquainted with these procedural rules — they are akin to the building code for a new construction project. They must be followed, and those in the industry are well-aware of their requirements. Unfortunately, lots of people out there are not aware of these rules of procedure – they may know the foreclosure statutes, they may have read their contracts or notes or deeds or liens, but that’s just part of what’s involved in even the simplest of lawsuits.
2. Not Knowing Impact of Court Cases (Precedent) Can Hurt a Florida Home Owner’s Foreclosure Defense
Throughout the state of Florida, judges make law every day. Trial court judges issue rulings and judgments which will be the law for that case that is being presented before their bench. If that case is appealed to a higher court, the Florida appeals court may issue an opinion that creates new law for not only those parties to that case but to everyone else within the state’s jurisdiction. That opinion may get its papers graded, in turn, by the highest state court (the Florida Supreme Court) or by the federal courts for things like federal constitutional violations or violations of civil rights laws, environmental laws, and the like.
There are lots of court opinions out there right now that impact Florida home owners facing foreclosure. And some of them are in the process of being reviewed by higher court, so right now Florida foreclosure defense attorneys and Florida short sale lawyers are monitoring those cases in the pipeline, waiting to learn what the final determination will be and what Florida law will require.
3. Other Keys to Successful Florida Foreclosure Defense: Knowing the Courts, Knowing the Banks, Knowing the Opposing Counsel
More examples. Individual courts have their own impact on foreclosure defense in Florida. Although there are those that want to take away the ability of a Florida home owner to have their day in court, right now Florida is still a judicial foreclosure state.
Which means that we have a huge bottleneck, or backlog, of foreclosure cases right now and it’s nearly brought the Florida judicial system to a halt. Different counties and different clerks’ offices and different judges are trying to solve the problems before them the best they can; however, it’s not all the same cookie-cutter approach to courtroom policies and procedures right now.
What applies to your foreclosure case in Miami may be very different from your cousin’s case in Naples, for example. Each of you will be required to follow whatever is in place for your area and your court and your judge. Know your deadlines, know your fees, know your filing requirements.
Additionally, there are the nuances of negotiation to be considered. Experienced foreclosure defense attorneys know how the other side operates – what the lawyers on the other side like to do, or not do, as well as the stance a particular bank has taken on various issues. For example, a bigger bank may be more likely to delay filing a foreclosure lawsuit if there is a negotiation in progress than a local credit union. Smaller banks may fight hard for a deficiency judgment, others may be willing to deal. Behind all these labels – mediation, settlement, negotiation, deficiency, lawsuit, court case – are real people making real decisions. Their approaches aren’t all the same, and their positions aren’t all alike. For instance, it’s important to know how much wiggle room you may have on tolling a statute of limitations through agreement or if the bank’s lawyer is notorious for hating to mediate things.
Larry Tolchinsky’s Tip:
It is the Wild West in Florida foreclosure proceedings and it has been for awhile now. It’s admirable that people want to fight their own fights. It’s understandable that Florida home owners need time to deal with other things, like getting kids settled in school or finding another job. We’re all human and there’s only so much anyone can have on their plate. Speaking for Florida foreclosure defense attorneys across the state, we get it. We do.
However, it’s frustrating to the point of anxiety sometimes to meet a nice couple or a growing family as they are being pushed into a home foreclosure by their bank or mortgage servicer, and see that by waiting to talk with a foreclosure lawyer, they have lost some of their legal rights and legal weapons.
Bottom line, Florida foreclosure defense lawyers are seeing too many cases where Florida home owners have waited too long — sometimes, they have waited even after getting notice that the lawsuit to take their home has been filed by the bank — and now, they may not be able to do such things as:
- demand procedural rule discovery to be able to do things like examining their original loan file;
- have time to determine if the bank followed its own underwriting guidelines when approving the loan or if the bank has violated standards set in court case precedent (e.g., did the bank verify income? was their enough income to repay the loan? where there irregularities related to their appraisal? etc.); or
- negotiate before any law suit has been filed of record in their name with their lender and the lender’s lawyer (which impacts their credit rating, and while they may have to report in future job applications, etc.).
This post is an effort to demonstrate, explain, and offer clear reasons for Florida home owners to act now. Too many Florida foreclosure defense lawyers are saddened by prospective clients who come for legal advice much too late in the game, waiting so long that their files are swiss cheesed with glaring legal holes and the Florida real estate attorney’s hands are gut-wrenchingly tied by Florida statutes, procedural rules, court case precedent, etc. from doing things that COULD HAVE BEEN DONE EARLIER.
Don’t wait. Don’t wait until the judgment has been entered. Don’t wait till the sale has taken place. The sooner anyone facing foreclosure starts taking care of themselves and fighting for all their legal rights to be protected and honored, the better. In today’s Florida battlefield, it’s good to have a Florida lawyer helping in the fight. Many Florida foreclosure defense law firms (like ours) will understand your financial position and offer flexible financing to you – as well as compassion for what you and your family are going through as you face losing your home to the bank as well as paying a deficiency out of future income.
Do you have questions or comments? Then please feel free to Chat with Larry in the comments below, at firstname.lastname@example.org, or (954) 458-8655.