Set for Sale

So you defaulted on your mortgage. A foreclosure lawsuit was filed against you, and a final judgment was rendered by the court in favor of the bank. The property has been set for sale.

You’re out of options, right?

Wrong.

Our Miami foreclosure defense attorneys know there are still a few options for foreclosure borrowers to either save their home or delay the sale and ultimately preserve financial stability. Swift, decisive action by an experienced legal professional is key.

Setting the Foreclosure Sale

If a lender successfully secures foreclosure judgment in its favor, the court has between 20 and 35 days to set a date of sale. Exceptions to this strict timeline are made when defense lawyers can convince plaintiffs to consent to providing additional time.

There are requirements for notice of sale posting. The notice has to be published in the local newspaper of record for at least two weeks prior to the sale, and additionally in one other publication for at least five days prior to the sale.

Once the property is up for sale, it will either go to the highest third-party bidder or it will revert back to the foreclosing lender. Borrowers have just 10 days after the sale to file an objection to the amount of the bid, at which point the sale is confirmed by the local clerk of courts, and a certificate of title is issued to the purchaser.

Redemption by Lien Holder

In some cases – solely at the discretion of the court – borrowers can redeem their home up to the date of sale confirmation. This means you can potentially save your house from a foreclosure sale if you can come up with the money you owe prior to the sale. Once the home is sold, your options become extremely limited.

Your attorney can advise you whether one of the following is an option:

  • Loan modification. This can still occur after a final judgment, but you have to show you are willing and able to pay back the money owed. Often, your case is bolstered if you can show the difficulty in paying was due to a specific and valid hardship (i.e., illness, job loss, death in family, etc.) that is no longer a major factor in your financial strength.
  • Short sale. If you can initiate a short sale as opposed to have the home sold at auction, you have a better shot at getting a fair price for the property to help you pay off the remaining mortgage and reduce your chances of having to pay a deficiency judgment.
  • Bankruptcy. Those who file either a Chapter 7 or a Chapter 13 bankruptcy can effectively delay a foreclosure sale, and may buy enough time for an attorney to seek a workable loan modification plan. Although it’s never a first option, it can be effective as a last resort.
Vacating a Foreclosure Sale

It is extremely difficult to have a foreclosure sale set aside or vacated once it’s been completed. Doing so requires a homeowner to show:

  • Some irregularity in the foreclosure process rendering the sale void per state law (failure to send notice to borrower, failure to properly advertise sale, failure of lender to obtain an assignment of the mortgage).
  • Non-compliance with the terms of the mortgage (failure of lender to allow borrower 30 days to cure default), or
  • Inadequate sale price (usually in conjunction with some other factor, such as unfairness or irregularity).

Recent reforms in Florida law (specifically, the Florida Fair Foreclosure Act) hold that if a foreclosure is illegal and the sale complete, the only remedy available to homeowners is monetary compensation. They won’t be able to reclaim their home if it’s been resold, but they may be able to assert damages.

Of course, it’s better for these issues to come to light prior to the completion of a sale, which is why having a skilled attorney working for you is so important.

Negotiate From Strength by calling the Miami Foreclosure Defense Lawyers at Jacobs Keeley today at (305) 358-7991.

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