Given that Florida is a judicial state for foreclosures, the lender must file a lawsuit before they foreclose. A judge will also have to make a ruling in favor of the lender before the foreclosure process can begin. To begin the lawsuit, the lender will file a complaint or petition for foreclosure. If one is filed against you, you will then receive a copy of the complaint and a summons. The summons and complaint, along with a notice of lis pendens, are then filed with the court.
It’s important for anyone in fear of foreclosure to understand what all three documents are, and how they pertain to their case. There are also certain procedures that must be taken, such as responding to the summons. A foreclosure defense lawyer in Florida can fully outline those procedures, and possibly even help you keep your home.
A complaint in foreclosure proceedings is simply the document that outlines the claims the lender is making in the lawsuit. It will typically describe the mortgage or deed of trust, the property they wish to foreclose, the amount still owed on the mortgage, and the number of payments you have defaulted on.
The complaint will also include evidence to back up the lender’s claims. For example, your mortgage contract will state what was expected of you. A copy of the contract will be included within the complaint so the lender can use it to prove you did not meet those obligations.
Lastly, the lender will also state within their compliant what they are asking from the court. This is usually called relief and involves foreclosing on your home so they can apply the proceeds from the sale to your mortgage debt. If the lender doesn’t believe a sale will fully cover the total debt, they can also include a request for a deficiency judgment for additional relief.
Notice of Lis Pendens
Notice of lis pendens is a Latin term and translates to ‘suit pending.’ This notice alerts anyone that has an interest in the property that a foreclosure lawsuit is pending on the property. The public, subsequent lien holders, and future buyers of the property can all obtain this notice once it’s filed with the county clerk.
The summons tells you that the lender has filed a foreclosure lawsuit against you. Each borrower receives their own summons, and there are instructions contained within for responding to the summons. In Florida, you have 20 days from the date you were served the summons to respond.
How to Respond to the Complaint and Summons
Typically, homeowners only respond to the complaint and summons if they wish to fight the lawsuit. When this is the case, the lender must argue their case to the court and convince them a foreclosure is necessary and appropriate.
Your response to the summons should include a response to every claim made by the lender. Within the complaint, these claims appear as numbered responses. This is also the way your response to each claim should appear.
In each response, indicate whether you admit or deny the allegations or state you do not have the necessary knowledge to admit or deny the claims. If you admit to any of the allegations, the court will accept that claim as fact. If you deny a claim, the burden of proof is on the lender to prove the claim is valid.
Within your response, you can also provide defenses to the claims of the lender. For example, if you haven’t missed a payment or even been late on a mortgage payment, that provides a valid defense. Affirmative defenses can also challenge the legal aspect of the foreclosure, whether the lender failed to adhere to state or federal law, or if there were violations involving homeowners.
Once you have answered all the claims within the lawsuit, you must sign your response and send a copy to the lender or their attorney. You must also file your response with the courthouse listed on the complaint.
What Happens if You Don’t Respond?
There is no law in Florida requiring homeowners to respond to a summons or complaint. However, it is very important you do. If you do not file a response, the courts will assume you do not wish to fight the foreclosure lawsuit. As such, they will likely issue a default judgment against you. This means you automatically lose your case and the lender can proceed with the foreclosure.
Many homeowners also don’t realize that by not responding to the summons and complaint, they are also choosing not to fight a deficiency judgment. If this type of judgment is issued against you, it could cripple you financially at a time when you no longer even have your home.
Just like there are defenses against foreclosure, there are also defenses against deficiency judgments. Too many homeowners aren’t aware of this and so, after receiving their summons, they simply give up, thinking the situation is hopeless. It’s not. If the lender was involved in any type of predatory lending practices, violated state or federal statutes, or otherwise acted unethically, this can provide a defense to foreclosure. Many individuals don’t understand what these laws are though, which is why a defense seems impossible after first receiving the complaint.
Did You Receive a Summons? Don’t Wait to Talk to a Florida Foreclosure Defense Attorney
If you’ve received a complaint or summons indicating your lender has filed a lawsuit against you, do not wait to speak to one of our Fort Lauderdale foreclosure defense attorneys. At Loan Lawyers, we are passionate about helping people stay in their homes but to do so, you must act quickly.
After meeting with you, we will review your mortgage contract looking for violations that could help in your defense. We will then move on to preparing and filing a convincing response that will give you the best chance of success in court. Call us today at (954) 523-HELP (4357) or contact us online to schedule your free consultation with one of our 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.