Florida Home Owners Who Do Nothing or Procrastinate Put Themselves at Risk of Bank’s Default Judgment. Florida Foreclosure Defense Means Filing an Answer at a Minimum to Protect Rights.
Posted By Larry Tolchinsky on September 6, 2012
Losing their home to foreclosure in Florida these days is something that many, many families are facing and it’s never easy. However, things are very complicated these days because of the chaos that has been created by the unprecedented Foreclosure Fraud housing crisis. People need to know what this process means to them, step by step. The key thing that every Florida home owner needs to know here: the need to file an Answer if you have been sued.
Record Number of Florida Foreclosure Lawsuits Will Continue For Awhile – We’re Not Done.
Hundreds of foreclosure lawsuits have been filed in Florida courthouses across the state. The courts are overwhelmed by the amount of cases that have been filed by banks trying to foreclose on homes. It’s another huge number but no one is sure just how many Florida mortgages are behind in payments but no lawsuit has been filed so far by the Florida bank or mortgage lender. Finally, there’s another big wave of foreclosure filings predicted for Florida courts: some Florida families are trying to juggle underwater mortgages and if that burden gets too big, then they will be facing a foreclosure lawsuit from their bank in their future.
The Florida Foreclosure Process – The Minimum Florida Home Owners Need to Know
Here are the basics that every Florida home owner should know if he or she is behind on their mortgage, dealing with an underwater mortgage, or facing a lawsuit that has been filed against them by a bank or mortgage lender. In Florida, pursuant to Florida law, here’s what banks do:
1. The Florida Home Owner Gets a Notice of Default from the Lender.
When the home owner makes the deal on his home with a Note and Mortgage, then part of that deal from the bank’s perspective is that the taxes, property insurance, and any association fees will be paid on time. These payments are part of the deal right along with making the monthly mortgage payment. Get behind on any of these things, and the borrower may get a Notice of Default. The Notice of Default is the first stepping stone on the bank’s path to taking your property.
2. The Bank Serves the Borrower With a Summons and Complaint
The Bank’s lawyers prepare the paperwork that initiates the legal proceeding against the borrower in accordance with Florida law (well, this is what is supposed to happen). The lawsuit begins with a Complaint that outlines for the record the bank’s right to file the suit, and its claims for damages are outlined here. Along with the Complaint is another official document: the Summons. The Summons accompanies the Complaint and details to the defendant (the borrower and home owner) that the lawsuit has been filed in a certain court on a certain date, and gives information on the time frame for filing a response (“the Answer”).
A County Sheriff (or other official process server) will serve the official paperwork upon the defendant: the borrower should expect to receive copies of the Summons, the Complaint, and a Notice of Lis Pendens. (An example of a Broward County Sheriff’s Service of Summons can be seen online.)
3. The Bank Files a Notice of Lis Pendens in the Real Property Records
The bank’s lawyers don’t stop at drafting documents, filing them with the court, and getting the County Sheriff to serve them upon the Florida home owner. No, they also take the step of protecting the bank’s interest in the real estate itself by filing a document in the real property records entitled a “Lis Pendens,’ which clouds the legal title to the land and gives official warning to anyone who reads the record that a foreclosure action has begun.
4. The Bank Gets A Default Judgment If It Can.
The Bank’s lawyers then wait and watch for the defendant to do something. These attorneys are watching for something specific, too. Not a phone call. Not a letter. Not a partial payment. No: the law of the lawsuit now applies and the procedure requires that a formal document be filed down in the record. It is the “Answer” and it must mean certain legal requirements to be effective.
If no Answer is filed, or if it fails to follow proper procedure, then the Bank will ask the judge to sign a Default Judgment. This is a formal resolution of the claims that were described in the Complaint. The bank wins. The Default Judgment bars the defendant from contesting the foreclosure and the bank can proceed to take the property as its own.
Larry Tolchinsky’s Tip:
Florida foreclosure defense attorneys are seeing far too many people coming through their doors or calling them on the phone who have delayed taking action on the bank’s communications to them — and they’ve lost legal rights because of it. The bank’s lawyers are going to move forward, and Florida home owners need to do something too. Here’s why:
1. Even if you are behind on your mortgage payments, association fees, insurance, or taxes, there is always negotiation to be had with the lender. Depending upon which Florida lender you have, these negotiations can be very productive. They may prefer to avoid filing more lawsuits right now, if they already have a lot in the pipeline, for example. Part of these negotiations often include the borrower disputing what the bank shows as the amount of the debt overall or the amount in default. The numbers may be wrong. Flat out wrong.
2. Borrowers in Florida have a legal right to fix things by paying up: it’s called your “Opportunity to Cure.” Do this right, and your mortgage is reinstated.
3. Banks have a legal right to ask for the entire balance of the mortgage under an “Option to Accelerate” clause found in your mortgage terms. If the bank can show and prove a default has happened under the contract language, then they can exercise their right to “accelerate” the mortgage – which means that the bank can then demand you pay the entire amount left due and owing on your home. Lump sum. You may get a written notice that the bank has done this; alternatively, the bank’s filing of a Lis Pendens may be viewed as its notice of acceleration.
4. Borrowers lose the rights to review the bank’s files, to ask questions, to take deposition testimony, and do many other things to protect themselves and to fight the bank’s actions if they do not take action.
5. When a lawsuit is filed, a time ticker starts counting down. The borrower has TWENTY DAYS — that’s right, 20 days — do file something in the record in response to the bank’s complaint. This is termed the “Answer” and while it needs to follow a certain format and procedure it isn’t complicated. It can be amended later. The document as originally filed isn’t set in stone — but if the defendant doesn’t bother to file it, then the defendant essentially throws up his hands and loses the game.
Doing nothing is doing something. Don’t help the bank take your home from you!
Do you have questions or comments? Then please feel free to Chat with Larry in the comments below, at email@example.com, or (954) 458-8655.