The foreclosure process as applied to residential mortgage loans is a bank or other secured creditor selling or repossessing a parcel of real property (immovable property) after the owner has failed to comply with an agreement between the lender and borrower called a “mortgage” or “deed of trust”. Commonly, the violation of the mortgage is a default in payment of a promissory note, secured by a lien on the property.
When the process is complete, the lender can sell the property and keep the proceeds to pay off its mortgage and any legal costs, and it is typically said that “the lender has foreclosed its mortgage or lien”. Florida law requires Foreclosure by judicial sale, more commonly known as Judicial Foreclosure. This type of Foreclosure involves the sale of the mortgaged property under the supervision of a court, with the proceeds going first to satisfy the mortgage; then other lien holders; and, finally, the mortgagor/borrower if any proceeds are left.
In Florida, the foreclosure process begins when the bank’s attorney files a “foreclosure complaint” against you, the borrower in default. “Foreclosure Papers,” usually refers to the foreclosure complaint. The foreclosure complaint sets forth the bank’s claim for relief of foreclosure and must include the borrower and/or owner of the property as well as all other parties having junior liens on the real property (2nd Mortgage or “Home Equity” lien holders, HOAs, construction liens, etc.). After the Complaint is filed, a Lis Pendens is recorded against the property. The Lis Pendens serves as constructive notice to the world that a foreclosure has been filed and that any interest acquired after the date of recording is expressly subject to the foreclosure action.
Florida law requires that you be notified of the legal action pending against you. Service of Process may be perfected in person by the sheriff or special process server. If service is not perfected on any party defendant after due diligence, service may be obtained by publication of the foreclosure action in a newspaper. Notice of the foreclosure action must be published twice over a period of not less than 20 days in the county where the property is located.However, service by publication is acceptable only after all other efforts are exhausted.
Florida and Federal laws provide procedural and equitable defenses to prevent or postpone foreclosure. It is important to understand that none of these strategies alone is likely to save a home. While it is natural for attorneys to resort to litigation in response to a threatened foreclosure, rarely will litigation fully resolve the borrower’s problem. Some defenses may reduce the amount owed or may cause a delay in the foreclosure process long enough to allow the borrower and his/her family to find appropriate housing.
Defenses that apply in many Florida foreclosure cases include the “produce the note” defense and the “robo signers” defense. The “Produce the Note” defense requires that the plaintiff prove it has the right to bring the action and that it has the Promissory Note that was signed by you at your closing. Florida law also requires that the plaintiff provide an accurate chain of assignments of the promissory note.
The “Robo Signer” defense has received much media attention in recent months. This defense is named for the mechanical, and frequently improper, rubber stamping of affidavits from the banks relating to the amounts owed and nature of the loan for which the “signer” has no personal knowledge.
Before a legally valid foreclosure sale can take place, there must be a valid mortgage between the parties, a default by the borrower, proper foreclosure procedure, and no cure or redemption by the borrower. In Florida, the borrower will have the opportunity to raise defenses and counterclaims to the foreclosure in the answer to the foreclosure complaint. A trial will then be held to resolve the claims and counterclaims.
“Walking Away” and “Stategic Default” are terms used to describe the situation in which a borrower decides that continuing payment on the mortgage loan simply does not make economic sense because of the depreciation in the value of the collateral (the price of the house). This is a complicated question to which the answer is different from case to case.
Most of us have a great emotional and psychological attachment to our homes that makes losing them in foreclosure especially difficult. The truth is that it depends on a number of factors such as your economic condition, when you purchased your home, for how much you purchased it, how much equity you have in it, etc. If you are considering walking away from your mortgage, please call my office at 888-886-0020 or send an e-mail to email@example.com to schedule an appointment in which we can discuss your situation and figure out an appropriate solution.
A borrower facing the loss of his or her home through foreclosure or execution on a judgment may be able to secure temporary or permanent relief in the bankruptcy court. One of the most important weapons in the consumer bankruptcy arsenal is the automatic stay provision of the Bankruptcy Code. Few other legal steps that may be taken by a consumer can effectuate relief so simply, so effectively, and so dramatically. The instant that a bankruptcy case is filed, the automatic stay takes effect, freezing almost all actions against the debtor and the debtor’s property, including a foreclosure or sale of secured property.
Foreclosure Rescue Scams come in many variations, but they have one thing in common; instead of being “rescued,” as promised, the homeowners lose not only their home, but also their equity, additional money, and end up worse off than they were before the transaction. The most important thing to remember is that as of October 2008, any non-attorney Florida business involved in foreclosure defense may not charge you a fee up front; they may only collect their fee after the services have been provided.
Foreclosures can be overwhelming, stressful, and confusing – and the vast majority of people experiencing a foreclosure are largely unfamiliar with the process and the timeline. A specialized and experienced foreclosure lawyer can help you navigate your situation, draw up a plan of action, and find the best solution for you and your family. Also, a licensed Florida foreclosure attorney can help you save time and money.
Please contact us for a free consultation to determine if Foreclosure Defense is right for you and for your Fee Structure. Since each case is unique it’s difficult to quote a fee without knowing your specific case details and circumstances.