Last Update: 10/10/20
Pay Special Attention to Step #4 otherwise you lose and you lose quickly!
It’s a sad reality in today’s economy that many people either face the possibility of foreclosure, are in the process of defending against foreclosure, or know a family that is dealing with foreclosure issues. Florida’s foreclosure rates are beginning to rise again and for the next few months, if not longer, look to fill our court dockets – with the State of Florida likely to be a hard hit part of the country.
Notwithstanding the foreclosure crisis that occurred over 10 years ago, a lot of homeowners are probably wondering about the nuts and bolts of a Florida foreclosure: what exactly happens when the foreclosure process begins? Does someone just show up and forcibly remove you from your home? Does the Sheriff come to arrest you? Does the bank take your TV and all of your personal belongings?
Here’s a brief overview of the Florida Foreclosure Process in 10 Steps:
The Florida Foreclosure Process in 10 Steps
Here’s how the process begins:
1. The homeowner (Borrower) fails to do something that he or she agreed to do when they gave the mortgage (“defaults”), like:
- not paying the mortgage payment;
- not paying the increased escrow;
- not paying the insurance on the property; or
- not paying the property taxes.
2. There are communications between the homeowner and the mortgage servicer and/or the bank (which can go on for a while, especially when there is a dispute about missed payments, misapplied payments, incorrect escrow balances, the ending of a forebearance period, etc. ) which can lead to:
- debt collection issues;
- credit-reporting issues;
- short sale discussions; and
- loan modification negotiations.
3. When no resolution is reached between the parties, the bank files a foreclosure lawsuit at the courthouse in the county where the property is located and then serves the homeowner with the lawsuit (the homeowner receives a copy of the Complaint for Foreclosure and Summons from a process server, which can be a sheriff’s officer or a private process server);
4. The homeowner (Borrower) has 20 days to respond in writing to the Complaint. This has to be done in accordance with Florida law and procedure. Failure to do so, or failure to do so within the deadline (as explained in the Complaint and Summons) means that the Borrower risks a “default judgment” being entered in the bank’s favor by the court. Do nothing, you lose (Oftentimes, homeowners will hire a lawyer at this point. The lawyer has to try and get the default judgment set-aside, which is not guaranteed to happen (but, it can)).
5. Discussions continue with the foreclosing party. Formal discovery can be filed by either side (legal request for documents, depositions, etc.) as part of the lawsuit. The judge may order mediation to try and force a settlement, but that’s not a guaranteed outcome. (Lots of times deposing a corporate officer of the foreclosing party reveals nuggets of information that can help create leverage and a competent foreclosure defense strategy.)
6. The borrower and his/her lawyer evaluate his/her defenses to the foreclosure suit and file pleadings in the lawsuit that formally challenge the right to foreclose. Here’s where standing, lost notes, other procedural and due process claims, etc., come into play. – See: 3 Types of Foreclosure Defenses In Florida.
7. The Bank may move for a summary judgment based upon no disputed facts – they will say it’s undisputed that the homeowner has failed to make their payments etc… It is only when the burden of having established that there are no disputed facts that the court will grant a summary judgment (the entry of a summary judgment ends the lawsuit and prevents the case from going to trial).
8. If the case survives the summary judgment motion, there is no loan modification or no short sale, then the case goes to trial. However, the homeowner doesn’t get to plead his/her case to a jury of his/her peers. That’s because the homeowner waives their right to a jury trial in the mortgage.
9. If the judgment is entered against the Borrower/Homeowner, then the home is sold at an auction. Defense attorneys can sometimes delay the sale, especially if the homeowner has a contract to sell the property or the homeowner has applied for and the bank is considering a foreclosure alternative (i.e. loan modification).
10. If the sale occurs, the Borrower/Homeowner must move out of their home asap otherwise the sheriff will show up and forcibly make the homeowner leave the property, which includes the sheriff removing the homeowner’s belongings and putting them on the front lawn or on the street.
Larry Tolchinsky’s Tip:
When is it too soon to start considering your options in a possible default on your home? Never. It’s never too soon to start thinking about what might happen once a foreclosure lawsuit is filed – it’s never too early to be planning strategies to fight against losing your home. Foreclosure defense is complicated and each case is different. Florida law is changing all the time in this area.
Foreclosure defense attorneys, who know the law and deal with various banks and mortgage servicers, can be invaluable in helping Florida homeowners facing the possibility of foreclosure. And many foreclosure defense lawyers are able to work with clients on fees and expenses – it’s surprising to many clients how reasonable and cost-effective lawyers can be.
What Should You Do?
A good piece of advice is to speak with an experienced Florida defense attorney to learn about your rights. Most foreclosure lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.
- Short Sale vs Foreclosure: What Difference Does It Make On Your FICO® Score?
- Conditions a Bank Must Satisfy Before Filing a Foreclosure in Florida
Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.
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