Florida has one of the longest timelines in the country when it comes to foreclosure lawsuits. After a lender has filed a foreclosure action, it can take months before the property owner is forced out of their home, which can cause a great deal of stress for the lender, as they typically want these actions over with as soon as possible.
However, there are instances in which the lender can greatly shorten the amount of time it takes to complete the foreclosure action. Florida law allows lenders or subsequent loan owners to expedite the foreclosure process when the defendant, or the borrower, does not contest the case, or when the homeowner does challenge the foreclosure action but they do not have a valid defense.
When a lender or other loan holder decides to expedite the process, it is known as a fast-track foreclosure. If you are a homeowner facing foreclosure, it is important that you understand the fast-track process, and how to fight it. Doing so could provide you with much more time to live in your home without making a payment or work out a repayment plan or other solution with the lender.
Starting the Fast-Track Foreclosure Process
The fast-track foreclosure process begins with the plaintiff, either the original lender or a subsequent loan holder, filing a complaint for foreclosure with the court. This is standard procedure in any foreclosure case, but when the loan owner wants to fast track the process, they will also file a motion, or request, with the court to prove why the foreclosure case should not proceed.
Once the court receives the motion, they will review it to ensure it is verified. To verify the complaint, the plaintiff must show, under the penalty of perjury, that they have the right to foreclose under the promissory note on the property. In the event that the court finds the foreclosure complaint valid and that it satisfies all legal requirements, a judge will then issue an order stating that you must prove why they should not issue a final judgment in the loan owner’s favor.
You will receive this order to show cause after being served with the order and possibly the initial complaint. After receiving the order and complaint, you will only have a limited amount of time to respond. The court will also set a hearing date for your case.
Who Can Fast-Track a Foreclosure in Florida?
Florida law allows any lienholder to start the fast-track foreclosure process. While most homeowners think this only applies to the original lender, or a subsequent loan holder, it also applies to second lien holders and homeowners’ associations.
After a lienholder has started the fast-track foreclosure process, you then have the burden of proof to show why the foreclosure should not proceed. If you believe the foreclosure is improper, you must then file a response, generally known as an “answer,” or a “motion to dismiss.” Within your response, you should include any valid issues that represent a material fact or a legal defense proving why the foreclosure should not proceed. After you have filed your response, you will then also have to present these defenses at a hearing.
The hearing in which you will raise your defense must be scheduled within a certain period of time. The time frame must be 20 days after you were served with the order to show cause, 45 days within the service of the original complaint, or within 30 days of the original publication if the complaint was served through a publication such as the newspaper. The date in which your hearing is set must be whichever date is the latest of these options. At the hearing, you will need to present your defenses to why the foreclosure should not proceed.
Too many homeowners waive their right to a hearing and, often, they are not even aware that they are doing it. You may waive your right to be heard if you fail to file a response, if you file a response that does not challenge the foreclosure, or if you do not appear at the hearing. You may also lose at the hearing if your defenses are found to be invalid. In this case, the judge will enter a final judgment of foreclosure and tell the court clerk to begin a foreclosure sale.
If you do raise a valid defense to the foreclosure process, the judge will not enter a final judgment. Instead, the case is considered to be in dispute. The discovery process will begin and the case will have a trial date set. At the trial, you will have a chance to raise your defenses again, as will the loan owner. After both arguments have been heard, a judge will then make a final decision on the case.
Deficiency Judgments in Fast-Track Foreclosures
When foreclosure cases are not fast-tracked, the loan owner can pursue a deficiency judgment against you. If they are successful, they can then take additional measures, such as garnishing your wages, to recover the amount of debt you still owe. However, when a loan owner is successful in a fast-tracked foreclosure case, they cannot also receive a deficiency judgment. Still, the loan owner can file a separate lawsuit against you to obtain a deficiency judgment when the price a purchaser paid at a foreclosure sale is not enough to cover your entire mortgage debt.
Our Florida Foreclosure Defense Lawyers can Fight Your Case
Foreclosures are one of the most stressful things a homeowner could ever face. When the process is fast-tracked, it is even more nerve-racking and you could be forced out of your home even sooner. At Loan Lawyers, our Fort Lauderdale foreclosure defense lawyers know the defenses that are available in these cases and we will use them to give you the best chance of a positive outcome. Call us today at (954) 807-1361 or contact us online to schedule a free consultation with one of our skilled attorneys.
Loan Lawyers has helped over 5,000 South Florida homeowners and consumers with their debt problems, we have saved over 2,000 homes from foreclosure, eliminated more than $100,000,000 in mortgage principal and consumer debt, and have recovered over $10,000,000 on behalf of our clients due to bank, loan servicer, and debt collector violations. Contact us for a free consultation to see how we may be able to help you.