FORECLOSURE DEFENSE
Foreclosure is an action by a bank to take back your property and collect on a note. In Florida, lenders may foreclose on a mortgage in default by using the judicial foreclosure process. Lenders must take specific steps to have the right to foreclose. The lender will try to show that the borrower is in default, and that foreclosure is therefore necessary under Florida equity law. If you do not respond appropriately as well as immediately, the bank can take Judgment in less than 30 days.
Foreclosure Litigation
The Filing of the Lis Pendens. The first legal action taken by the lender is to file a Lis Pendens at the county courthouse. Your lender has declared you in default and is demanding that the note be paid in full immediately. - The Summons and Service of Process. After the Lis Pendens and Complaint have been filed, a process server will deliver to you a copy of the Complaint filed against you.
- The Answer. In response to the Complaint, you have 20 days from receipt of your Summons to file a written and legally sufficient response. If you file an Answer a hearing date is set. It is important that you file an Answer. If you do not a Clerk’s Default and a Default Judgment will not be entered against you without an opportunity to be heard.
- The Summary Judgment Hearing. The Summary Judgment hearing gives the Lender's attorney the opportunity to present their case against you. It also provides an opportunity for the home owner home owner to present valid defenses to the foreclosure action.
- Foreclosure Sale Date. After Final Summary Judgment the property will be sold on the Courthouse steps. This is important to you because it determines when you must leave your home.
- Judicial Sale. 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.
- Deficiency Judgment. A deficiency is the difference between what is owed to the lender and the sale amount. In Florida the lender has the right to sue to obtain a deficiency judgment. A separate action for a deficiency must be filed within four years after the foreclosure sale. There are legal issues that must be determined that can directly impact the amount of deficiency. Large deficiency Judgments have placed many homeowners into Bankruptcy.
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