Florida Foreclosure Process
In Florida, a lender must go to court to foreclose its mortgage. The lender files a lawsuit in the Circuit Court of the county where the property is located. The lender has no right to take your home until they obtain a judgment of foreclosure and writ of possession from the Court.
Before the Foreclosure Begins
- The huge stack of documents borrowers sign at closing form the basis for many of the rights and defenses in a foreclosure. The most important are the promissory note and mortgage.
- The note is the contract which sets the terms for repaying money borrowed. The mortgage lets the bank take back your property and sell it if you fail to make payments on the note.
Notice of Default
- If a borrower fails to pay, the Bank must declare you in default under the Note. This document is often called a Notice of Default and is usually delivered by mail.
- In most notices, the Bank demands the note be paid in full immediately. This is called an acceleration of the note.
Dispute the Validity of the Debt
- The borrower has rights under the Fair Debt Collection Practices Act (FDCPA), to dispute the validity of this mortgage debt.
- Once the borrower demands the Lender verify the debt, the lender must stop all collection actions until the debt is verified.
- Bruce Jacobs & Associates, can assist you in exercising your legal rights. Click here to get started.
The Summons, Complaint and Lis Pendens.
- Expect to be Served with a Foreclosure Lawsuit After Receiving the Notice of Default. A foreclosure starts by filing a summons, complaint, and lis pendens with the Clerk of Court.
- As in any lawsuit, the borrower has the right to appear and defend against the lawsuit. Every borrower has the right to make the Bank prove its case.
- The Summons informs you that a lawsuit has been filed and gives you 20 days to file a response with the Court
You Must Act Within 20 Days or You May Waive Powerful Defenses
- A “Lis Pendens” puts the public on notice that a foreclosure has been filed against your property. The Clerk of Court will record the Lis Pendens in the Public Records so it will appear in any title report.
- The Complaint sets forth that the Bank declares you in default and demands a foreclosure judgment unless the note is repaid in full.
- Service of Process
Once the foreclosure is filed, a process server (typically a County Sheriff) will hand-deliver you the Summons and a copy of the Complaint and Lis Pendens.
- It is NOT advisable to “hide” from the Sheriff. Service by publication is permitted where a foreclosure defendant cannot be located after a diligent search. There are much better defense strategies than playing hide and seek with the process server.
- Motion to Dismiss
An effective defense strategy is often to file a motion to dismiss the complaint. There are several legal and procedural grounds which may be raised. This is an excellent opportunity to question whether the bank can produce the Note and necessary paperwork to foreclose.
- The Answer
An Answer is the first opportunity to set forth your response to the complaint and any affirmative defenses you may raise. An affirmative defense effectively says to the court: “I haven’t paid my mortgage, but the Bank cannot foreclose because ….”
- Any party to a lawsuit has the right to conduct discovery. You may request documents, question witnesses, and require answers to questions under oath. Discovery is the process used to develop the facts that support defenses to foreclosure. It is also an excellent way to create leverage that can resolve a foreclosure.
- At the Summary Judgment hearing, the Lender’s attorney presents sworn affidavits which establish the Bank’s case against you. The borrower has the right to provide sworn statements of its own. If the Judge finds questions of fact exist from the affidavits, the Motion should be denied. If the Court grants the Motion, it will enter a Final Summary Judgment that states the exact amount you owe including principal, interest, attorney fees, expenses, and court costs.
- Once a final judgment is entered, the Clerk of Court schedules as sale date. This is usually between 35 and 120 days from the date the judgment is entered. Unless there is an agreement with the bank, a bankruptcy filing, or some other procedural issue, the property will be sold on the Courthouse steps.
- The final judgment of foreclosure will specify how the foreclosure must take place. The foreclosure must take place in the manner set forth in the Judgment. It is the lenders responsibility to place a legal advertisement, publication, or notice of the foreclosure sale in a local newspaper. After the sale takes place, the sale terms must be confirmed by the court that ordered the sale. If the terms of the sale order are met, title in the buyer’s name can become complete by filing a certificate of title. If there are irregularities, you may file objections to the sale which will prevent a certificate of title from being issued
- Lenders who retake a property by a foreclosure sale will then try to sell it, usually at “fire sale” prices. If the Bank resells the property for less than the amount due in the Foreclosure judgment, the Bank can apply for a deficiency judgment. The Bank only needs to prove the resale price was commercially reasonable. If the Foreclosure judgment was for $300,000 and the property resold for $100,000, the Court would issue a deficiency judgment against the borrower for $200,000. This deficiency judgment is the same as any other judgment and may be enforced for up to 20 years.
To foreclose a mortgage in Florida, a bank must do more than prove a borrower has not made payments. There are powerful defenses to be raised in a foreclosure. You have the right to conduct discovery, request documents, and hold the bank to its burden.
Most banks push for a quick foreclosure. A loan modification company cannot go into court and fight. Jacobs Legal has developed an extensive foreclosure strategy to negotiate from a position of strength
So What Are You to Do?
Don’t just roll over and let the bank take your home? Do not move out because you are behind on your payments. You are within your rights to stay in the home until the bank overcomes your defenses. If the property is rented, you can continue to collect rent while we fight your foreclosure.
If You’re Ready to Fight, Call Jacobs Legal.
Who are Jacobs Legal? Bruce Jacobs spent five years filing foreclosures for large lending institutions throughout Florida. He is a father, a husband and a homeowner like you. He understands the impact of a severely underwater mortgage and importance of finding a solution.
Jacobs Legal Offers the Chance to Fight Back Your Foreclosure.
- A properly defended foreclosure can take years before the Bank can prove its case.
- Other defenses can result in the foreclosure being dismissed entirely.
- Still other defenses catch violations of federal banking regulations that could cause the bank difficulty in foreclosing.
The Threat of a Good Fight
- The Government continues to struggle with solutions that will only strengthen your negotiations
- Our goal at Jacobs Legal, PLLC is to convince the Bank their best result will come from avoiding the fight
- Negotiate your loan modification or short sale from a position of strength
- Our firm looks for creative solutions to achieve each homeowners best case scenario
- The best foreclosure defense is a strong offense.
Help for Homeowners
Jacobs Legal takes great pride in defending homeowners in these difficult times. We believe our clients caught in the unprecedented wave of foreclosures need sound advice now more than ever.
We have developed an affordable, formidable defense strategy. We hold the Bank to its burden while we fight to get time back on your side. Jacobs Legal can guide you through the dangerous waters whether you want to stay in your home or get out from under it.
The Time has Come to Fight Foreclosure
In this difficult real estate market, many homeowners and investors are just walking away from the problem. Some make the mistake of moving out the day they fall behind on their mortgage. Others allow the bank to have a quick foreclosure without even responding in court. Still others seek out the advice of loan modification companies who will not go to court.
Once the foreclosure is finished, the problems really begin. Many banks seek out a “deficiency judgment” against the homeowner once they sell your home at a fire-sale price. If you owed $400,000.00 and the bank only sold your home for $150,000.00, the bank is entitled to a judgment against you for the $250,000.00 balance owed. Even if your bank won’t go after a deficiency judgment, there are bottom-feeders who buy those judgments for pennies on the dollar. You don’t want those sharks pursuing you.
A good offense is the best foreclosure defense
It is now becoming clear that your best strategy is to fight a foreclosure. Our goal is to identify and develop legal defenses in the origination and servicing of your loan. The Bank may have violated any number of predatory lending or Banking Regulations including:
- the Truth-in-lending Act (TILA),
- the Home Ownership and Equity Protection Act (HOEPA), and
- Regulation Z of the Real Estate Settlement Practices Act (RESPA).
When lenders fear an aggressive defense, they identify your file as a “problem” case. The problem cases are far more likely to get better results in settlements. The goal is determined by your goals. We can employ certain strategies to keep you in your home. Other to get you out from under it.
There are many defenses to be asserted and appropriate procedural strategies which can be used to fight off a foreclosure. There are many more exit strategies that can bring an end to the foreclosure without a deficiency judgment.
What is Securitization?
The Better Question Is How Does It Help to Stop Foreclosure?
Over the last decade, Banks and lenders handed out mortgages to thousands of homeowners. They created exotic loans and dropped off underwriting to next to nothing. Many banks knew the loan would never be repaid and didn’t care. AIG was betting against those bad loan. Wall Street made a killing. But rest assured, they’d prefer you believe they were just helping you achieve the American dream of owning your own home
What really happened was that Banks got into the “Securitization” business. Wall Street set up complicated contracts to let Banks slice and dice mortgages into huge profits. Their lawyers developed new and untested steps to take your mortgage, bundle it with 15,000 other mortgages, and fill a mortgage pool.
Every loan in that pool was first supposed to be put through a series of transactions. The loans came through “the wash” and became securities (like a stock or bond) that Wall Street could sell to our pension funds, police unions, and life insurance companies.
After the “Robo-signer” scandal of 2010, it is clear many Banks ignored their legal obligations in putting loans through the wash. Banks created phony assignments and affidavits and got caught red handed. This whirlwind of legal questions and problems can only help homeowners with aggressive counsel.
Jacobs Legal recently joined a nationwide network of leading foreclosure defense firms armed with cutting edge arguments, sharing information in real time. There is a fight going on and Jacobs Legal is on the front lines.
Jacobs Legal provides informed, practical advice for homeowners that want to negotiate from a position of strength. Mr. Jacobs is a former bank lawyer. He is a former Miami-Dade County prosecutor who is now fighting for property owners.
Negotiate from a position of strength.
Contact our Florida Foreclosure Defense Lawyers Today
Call the experienced Florida foreclosure defense lawyers at Jacobs Legal, PLLC for a consultation or send us an e-mail. We can evaluate your case today.