Foreclosure is the process in Florida by which a lender enforces a promise to repay a loan secured by a lien through a mortgage on your home. The lender asks the court to allow the sale of the property at a public auction in what is known as a foreclosure sale. A foreclosure complaint is typically filed after four to six payments are missed.
In Florida, mortgages must be foreclosed by filing a lawsuit (called a “complaint”) in court. As in any lawsuit, the borrower and any other owners of the home must be served with notice of the lawsuit and given an opportunity to appear and defend his or her rights. In its complaint, the lender will state that the borrower is in default, usually for failure to make the required payments under your loan documents, and that the lender can therefore force its sale.
There are several options available to you as long as you have not already lost your home in the foreclosure process. Before you get to that point, knowing your options will put you in a much stronger position to deal effectively with the foreclosure process. Armed with the right information, you may be able to save your home from foreclosure and, in some instances, avoid the foreclosure process altogether. You should consult with a lawyer to discuss your options, which vary depending on many factors.
When foreclosure documents are filed, they become a matter of public record. Many people review these records for various purposes such as compiling lists to sell to bankruptcy attorneys, investors, real estate professionals and others interested in purchasing your home or possibly helping you save it. Some of these offers are probably legitimate, others are not. Typically, the best recourse for saving your home is through expert legal defense.
One good place to start is to familiarize yourself with the state foreclosure process and discuss your options with a qualified attorney. The lending institution doesn’t necessarily have your best interests in mind, and, therefore, may not suggest your best options or properly advise you about your rights in the foreclosure process. Do not agree to anything without first discussing your situation with a foreclosure defense attorney.
Walking away from your home can have serious legal consequences. You should first seek the advice of an attorney knowledgeable in this area of the law.
The court enters a final judgment which provides a sale date for the property. The sale is published in the local newspapers and includes the names of the lending institution and the borrower(s), the total indebtedness, the assessed property value, the case number, the property address, the plaintiff’s attorney name, and the location, date, and time of the sale. Bidding occurs, but normally the lending institution is the only bidder and purchases the property for a nominal amount. After the sale, the high bidder has the right to request the sheriff issue a Writ of Possession for removal of the occupants and their property from the house.
Yes! A knowledgeable foreclosure defense attorney can review your case and discuss your options. Many recently filed foreclosure complaints are defective, so success depends on the timely implementation of an appropriate strategy. As a general rule, it is important to seek advice from a qualified lawyer prior to receipt of the foreclosure complaint. Although bankruptcy, forbearance, and mortgage modification are possible options, the proper defense of the foreclosure by an attorney experienced in these matters may be the best one.
Contact a foreclosure defense attorney immediately to explore your options. Do not ignore the letter! Do not move out of your home! Moving from your home may be considered abandonment and result in disqualification for available assistance programs.
The most popular options are:
You can sometimes spot a scam because it sounds too simple or too good to be true. As a practical matter, you must determine the identity of the company or person you are dealing with and their qualifications. You should be leery of paying a fee to anyone until you are thoroughly satisfied with their qualifications.
It’s a two-step process: pre-foreclosure and formal foreclosure. The process is similar in most states.
Note: Once you reach this stage, the lender will not accept your regular monthly payments but will instead, demand much higher payments to bring your loan current.
Florida’s Formal Foreclosure Process
The Soldiers’ and Sailors’ Civil Relief Act is a law passed during World War II that protects active duty military members from financial difficulty. One portion of the law may be able to stop foreclosure for anyone on active duty, if they meet certain requirements outlined in the Act.
A servicing agent is the firm that receives the mortgage payment, keeps the payment records, provides borrowers with account statements, imposes late charges when the payment is late, pursues delinquent borrowers and authorizes foreclosure proceedings when they default. In many instances, servicing agents also pay property taxes and insurance with money placed in escrow by the borrower. Traditionally, the lender serviced its own mortgage loans. Today, however, most lenders sell their loans in creative ways, and it is unusual for the original lender or even the current owner of the loan to act as the servicing agent. As a result, servicing agents generally have very limited authority or incentive to make significant loan modifications.
One of the most often overlooked details in loan modifications, deeds in lieu of foreclosure and short sales, is a borrower’s potential liability for the payment of federal income taxes on the amount of any indebtedness forgiven by the lender. Although a recent change to the Internal Revenue code provides an exemption from the income taxation of forgiveness of indebtedness related to a personal residence, the amount of any other debt reduction for which the lender agrees not to pursue liability against the borrower is subject to federal income taxation. Therefore, a borrower should seek competent tax advice from an accountant or attorney in such instances.
Contact South Florida foreclosure defense attorney John M. Howe
South Florida Law Office of John M. Howe provides cost-effective legal services for business and asset purchases, as well as a variety of other commercial issues. Attorney John M. Howe has helped many homeowners solve their foreclosure problems and avoid losing their homes. From his office in West Palm Beach, Florida, Mr. Howe serves Florida’s southeast region from Vero Beach to the Keys.
To discuss your foreclosure with an experienced foreclosure law attorney, contact us by filling out our online form or by calling us 561-296-7772 or toll-free 866-930-2938.