Facing foreclosure is a very scary thing. One of the elements that make it especially frightening is the fear of the unknown. Upon getting a notice from the bank or lender, homeowners often wonder how long it will be until they are forced from their home. What will happen in the meantime? Do they have any chance of saving their home? How exactly does the foreclosure process in Florida work?
The Notice of Default
Every homebuyer signs two very important documents when they purchase a house. The first is the mortgage, which states that you owe a debt and the property is being used to secure that debt. The note is your promise that you will pay back the money borrowed to purchase the home. If you default on payments, the mortgage contract is the legal document the lender will use to reclaim your home.
If you fail to make a certain number of payments, the lender will then file a complaint against you. This is a civil action in which they will send you a Notice of Default. Receiving this notice means you have defaulted on your signed mortgage contract and the foreclosure process has begun. If you don’t hire an attorney at this point, the foreclosure process will likely end in six months, and will result in you losing your home.
The Summons and Complaint
When the lender files a lawsuit against you for default on your mortgage payments, they will file a summons and complaint with a lis pendens, which translated from Latin means, “litigation pending.” The summons and complaint state that the lender has filed the lawsuit due to the defaulted mortgage and plans to reclaim your home. Once they file the summons and complaint with the county courthouse, they are then public record.
Once the summons and complaint are filed, a county sheriff will likely hand-deliver the summons and complaint to you. Many people try to avoid this, but it’s best not to. If the lender feels as though you are trying to avoid being served, they’ll take other action to serve the summons. This could include publishing the complaint in the local newspaper. Upon receiving the summons and complaint, it’s important you read these documents over thoroughly, as they outline your rights and responsibilities.
The process of filing the summons and complaint typically takes between 10 and 20 days.
After receiving the summons and complaint, you have 20 days to prepare an answer. This is a crucial step in any foreclosure process. If you don’t file an official answer, you may not have the opportunity to present your case, and your defenses, to a judge. This could result in the judge entering a final judgment against you, which means you will lose your home.
You can file an answer with the Clerk of the Circuit Court on your own, but it’s recommended you have an attorney do it for you. The answer is your first chance to explain your defenses, such as that the lender violated your rights as a homeowner throughout the mortgage or foreclosure process. Too many homeowners think once a summons and complaint are filed, there is nothing they can do. That is not true. Your answer can help you get a preliminary hearing, which will give you an even greater chance of keeping your home.
After you have filed your answer, the courts will set a date for a preliminary hearing. At this hearing, you will present your defenses and explain your side of the story. If the judge sympathizes with your answer and believes it is a solid defense, they can ask the lender to give you more time to sort things out.
When the judge does not think your answer was enough to stop or stall the foreclosure proceedings, they will rule in favor of the lender. At that point, the lender can proceed with foreclosure proceedings. Having legal representation is helpful in this instance, as well. An attorney will almost immediately request a Motion for Summary Judgment Hearing. The courts may set the date for this hearing within a few days of the preliminary hearing or within a few weeks.
A Motion for Summary Judgment Hearing isn’t that much different than any other civil proceeding. The attorneys for the plaintiff, or the lender, will argue why the courts should allow the lender to take the home. Your attorney will refute those arguments and dispute material facts of the case. Unfortunately, the best defense at this point is to provide proof of payment for the portion of the mortgage you’ve defaulted on.
If the judge finds in favor of the lender, they will enter a Final Summary Judgment. In this judgment, the money you owe is added up including the amount of the mortgage with principal and interest, penalties, and court costs.
Foreclosure Sale and Deficiency Judgments
If a judge allows a lender to reclaim your home, the lender will hold a foreclosure sale. This typically occurs within 30 to 45 days after the final judgment. The home is sold at a foreclosure auction and you must vacate the home. The judge may also allow junior lien holders to purchase the property up until the date of the foreclosure sale. In this instance, you could still keep your home if you provide proof of payment before the foreclosure sale, typically about 10 days prior to it.
In the event that the foreclosure sale does not make enough in proceeds to cover the amount owed on your mortgage, the lender may file another lawsuit against you. This one will seek a deficiency judgment, which will order you to pay the remaining balance of the proceeds and the remaining balance on the mortgage.
Don’t Let it Get This Far – Speak to a Florida Foreclosure Defense Attorney
Of course, a foreclosure sale and deficiency judgment are the worst-case scenarios in any foreclosure proceeding. They don’t have to get that far, though. A foreclosure attorney in Fort Lauderdale can prepare a strategy that will help you keep your home.
If you’re facing foreclosure, know that you have a much better chance of staying in your home if you call us at Loan Lawyers today. We will fight back against the lender, hold them responsible for any violations they may have committed, and work hard to ensure you don’t lose your home. Call us today at (954) 523-HELP (4357) or fill out our online form for your free consultation to learn more about what we can do for you.
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.