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Foreclosure Defense FAQs and Definitions

What does a homeowner have to prove in order to when there foreclosure case? Will depositions help a foreclosure defense? Does Florida law impose a duty on banks to send you a notice before they accelerate your loan? Lots of questions run through a homeowner’s mind after they have been served with a lawsuit. Throughout Larry Tolchinsky’s 26 years of experience, the following questions are frequently asked:


What does pre-foreclosure mean?

The meaning of pre-foreclosure in Florida is the period of time during which the homeowner misses a payment (or otherwise breaches the terms of the mortgage) and when the bank or loan servicer sends an acceleration notice to the homeowner.

Under paragraph 22 (sometimes paragraph 21) of the mortgage, in order for the acceleration notice to be effective it must specify “(a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration. . .”

Related: Conditions a Bank Must Satisfy Before Filing a Foreclosure in Florida

What are the affirmative defenses to a foreclosure lawsuit?

The common affirmative defenses are fraud, undue influence, lack of notice required under the mortgage, standing, payment, and duress. However, there are others including, incorrect legal description in the mortgage (there is case law here), estoppel, unclean hands, and rescission.

For example, a defendant will claim the Plaintiff failed to provide Notice of Default and Notice of Acceleration as required by and/or that complies with Paragraph 22 of the subject mortgage and Paragraph 7 of the subject note.

Related: 3 Types of Foreclosure Defenses In Florida  

Can a lender foreclose without the original note?

Yes. However, if there is a lost note count in the foreclosure lawsuit, then your lawyer should look to see if:

  • The bank’s affidavit is admissible under Florida law?
  • Is there a hearsay issue?
  • When was the note lost?
  • Who has personal knowledge of the note?
  • Who has personal knowledge of the circumstances surrounding the note going missing?

Usually, the bank will send one person to act as its duly authorized representative to take the witness stand. If that one person cannot truthfully and accurately tell the court that they have personal knowledge of the life of that lost note, then that witness shouldn’t be enough for the lender to meet its burden.

Related: Lost Notes in Florida Foreclosure Cases

Can you be foreclosed on during a loan modification?

Banks, servicers and mortgage companies are prohibited by federal law from conducting a foreclosure while a mortgage modification application, or other foreclosure alternative, is under consideration.

A loan modification can stop the foreclosure process as close to a few days before the sale date. In Broward County, for example, a homeowner can file for an emergency hearing to stop a sale from occurring on the online foreclosure auction website.

How can I delay a foreclosure?

Two of these procedures are called “stays” and “continuances.” Both are governed by the Florida Rules of Civil Procedure as well as local rules, state statutes, and court precedent.

Related: Court Procedures That Can Delay Foreclosure

How soon after the foreclosure is eviction?

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.

Depending on how busy the clerk’s and sheriff’s office are at the time, will determine how quickly a writ of possession will be issued. The writ of possession is given to the sheriff who then will come to your home and remove you. It can happen as quickly as a few days, but I’ve seen it take weeks.

Can a bank garnish your wages after foreclosure?

Yes, However, in Florida, there is an exemption that applies to the earnings of the “head of family.” The “head of family” is a person who provides more than one-half of the support for a dependent. He or she can exempt from garnishment “disposable earnings,” which include wages, salary, commission and/or bonuses, up to $750 per week. Florida Statute §222.11. Earnings in excess of $750 per week are exempt as well unless the debtor has agreed to make those funds available for garnishment in writing.

Related: Can the Bank Garnish my Wages after Foreclosure?

What should I do if my Homeowner Association or Condo Association files a foreclosure?

You should file an answer to the lawsuit within 20 days of being properly served the lawsuit or ask for an extension of time to file an answer. These lawsuits are just like any other civil lawsuit, so the rule of civil procedure apply.

However, under Florida Statute 720.3085, before a homeowners association foreclosure case can be filed the HOA must provide the homeowner with a statute-based notice of its intention of filing a lien against your home or condo. That document should be titled “Notice Of Intent To Record A Claim Of Lien” and Florida law requires the HOA to send that notice at least 45 days prior to the recording of a lien. The notice must include details of the amount owed and a statement to the homeowner to “make payment for all amounts due, including, but not limited to, any attorney’s fees and actual costs associated with the preparation and delivery of the written demand.”

Related: Homeowners’ Association Foreclosures

What is a wrongful foreclosure lawsuit?

A wrongful foreclosure action typically occurs when the bank files a foreclosure lawsuit when it has no legal basis for doing so. These days, this happens when the bank files a foreclosure action and the homeowner is subject to a forbearance agreement, mortgage modification, the bank files faulty or fraudulent documents, or the bank misapplies the homeowner’s payments.

Related: Wrongful Foreclosures

What is a deed in lieu of foreclosure in Florida?

A deed in lieu of foreclosure is when a homeowner voluntarily transfers title of the property to the bank or other entity who has the legal right to foreclose on the property. A deed in lieu is rarely, but sometimes, allowed to avoid the consequences of a foreclosure, including the time and expense of this type of litigation.

One of the main reasons why a bank will not accept a deed in lieu is because the homeowner has a second mortgage or equity line on the property. The deed in lieu does not extinguish these junior liens on the property. Meaning, the bank would have to take the property subject to these liens. A foreclosure wipes out of these liens.

Which is better for my credit a short sale or foreclosure?

Make no mistake: both the short sale and the foreclosure will appear on your credit report for the following seven (7) years.  Both will have a negative impact on your credit score.  However, between the two options, a  short sale will do slightly less damage to your credit future than a foreclosure.

Related: Short Sale vs Foreclosure

What is one of the most important steps to take in your foreclosure defense?

We believe that taking the deposition of the duly authorized representative of the financial institution that filed the foreclosure lawsuit (which could be a servicer or the “holder” of the note) is a key to most successful foreclosure defense cases.

During the deposition, we focus on whether or not the bank representative can truthfully and accurately tell the court that they have personal knowledge of, among other things, the payment history for the account, and, if there is a lost note count, the life of the lost note. If not, we take the position that the witness shouldn’t be enough for the lender to meet their burden to get, for example, a summary judgment entered in their favor.

Related: Getting Deposition Testimony of the Bank Is Critical to Your Defense


Do you have a question?

Ask Larry about the issues that concern you the most by sending him an email or by calling him now at (954) 458-8655.