Although it is a process no one wants to go through, unfortunately, foreclosures happen all too often in Florida. The process is a stressful one for homeowners. Not only are they experiencing a lot of emotions at the thought of losing their home, but the process is also complex. While there are certain steps your lender must take before they can foreclose on your home, you should also take certain steps that can help you keep your home, or that will simply make the foreclosure process easier for you. Below are the main steps involved in any foreclosure in Florida, and the action you should take when the lender proceeds with them.
Default: Notice of Missed Payment
Before a lender can foreclose on a property in Florida, they must send you a notice of default. Lenders that fail to do this may provide you with a viable foreclosure defense because they have not met the proper conditions to proceed with the foreclosure. In many cases, a lender will send a notice after you are 30, 60, and 90 days overdue with your mortgage payments. Once you receive this notice, it is imperative that you speak with a foreclosure defense lawyer.
A concept that is unknown to many homeowners is acceleration. Acceleration allows a lender to treat your entire mortgage balance as due and payable after you have missed several payments. Therefore, if you have received a notice, you may have to pay the entire balance of your mortgage, or risk losing your home.
The most common mistake homeowners make is ignoring these notices. It is crucial that you respond to any notice, which is one way a lawyer can help you during the foreclosure process. The lender may have in-house procedures that can help you keep your home. From this point forward, you must also keep a record of everything, including when you speak to your lender about the notice and what was said during that conversation.
Served with a Lawsuit
Depending on your response to the default notice, and the willingness of your lender to work with you, the next step in the foreclosure process involves the lender serving you with a lawsuit. Like all lawsuits, this will begin with a Complaint and a Summons. The Complaint outlines the reason for the lawsuit, while the Summons informs you of your obligation to respond to the lawsuit. Again, many homeowners choose to ignore the Complaint and Summons, which will result in a default judgment being issued against you.
You may have as little as 20 days to respond to the lawsuit and it is imperative that you do. If you do not, a judge will assume that the allegations in the Complaint are true, which results in a default judgment. If a default judgment is issued against you, it will fast track the foreclosure process and you will have much fewer options. If you are not working with a foreclosure defense lawyer yet, it is extremely important that you speak with one now. Defendants who are represented by an attorney are treated much differently than those who are not, and a lawyer will provide you with the best chance possible to save your home.
Foreclosure Case Pending
Due to the fact that Florida is a judicial foreclosure state, your lender must follow Florida’s Rules of Civil Procedure to proceed with the foreclosure at this point. Under this set of laws, you are also entitled to examine the evidence the lender has against you, which can help with your foreclosure defense. If the lender did not follow the proper procedure when filing the lawsuit, your attorney may even file a Motion to Dismiss. A Motion to Dismiss can buy you more time, but it can also have a lawsuit against you completely dismissed by the court.
One of the first phases of any lawsuit is the discovery phase. During this phase, your attorney and your lender will exchange information pertaining to the case. This allows each side to see what information the other has and that they will use during the trial. If the lender does not believe that you have enough evidence to stop the foreclosure from proceeding, they may seek a summary judgment from the court. Again, if you are not working with a lawyer at this point, it is imperative that you speak to one now.
Foreclosure Case Set for Trial
If your lender does not obtain summary judgment and you have responded appropriately throughout the foreclosure process, your case will proceed to trial. There are many steps in a foreclosure trial, but your lender must prove that they are entitled to foreclose on the property by a preponderance of the evidence. To do this, they will present evidence and testimony to establish that they are the holder of the mortgage note, or that they have another right to foreclose on the home. Often, just one witness, usually a representative of the bank, is used to provide this testimony.
If the lender cannot present this evidence or does not file the lawsuit properly, you will win the lawsuit and can keep your home, at least for a little while longer. If the lender can appropriately prove their case, sadly the case will move to a foreclosure sale.
Pending Foreclosure Sale
Many borrowers at this stage do not think they have any options, but that is not true. Prior to a foreclosure sale, you can apply for bankruptcy, which may stall the sale, or stop it completely. In some instances, a foreclosure sale can also be canceled or rescheduled through other means, although this is rare and you should always speak to a lawyer about your options. If the sale proceeds and someone purchases your home, you will typically have a limited amount of time after the sale in which you must vacate the property.
Call Our Florida Foreclosure Defense Lawyers Today
The process of foreclosure always begins with a default notice, and it is important not to panic if you have already received one. At Loan Lawyers, our Fort Lauderdale foreclosure defense attorneys are here to help. We can guide you through the foreclosure process and provide the defense you need that can help you remain in your home. Call us today at (954) 523-HELP (4357) to arrange a free consultation with one of our lawyers and to learn more about how we can help.
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.