South Florida Foreclosure Defense Lawyer
How the Foreclosure Process Works
Getting served with a foreclosure lawsuit or falling behind on your home payments is one of the most unsettling things we see clients going through. If you are in either situation, you probably have lots of questions about the foreclosure process and possibly how a lawyer might be able to help and if you can even afford one. To help you understand how foreclosures usually proceed in Florida, we have assembled some basic information about the process and a timeline that shows key dates for foreclosures.
If you or someone you know is facing foreclosure, the Florida foreclosure defense attorneys at the Law Offices of Evan M. Rosen, can help. Contact us for a FREE CONSULTATION to find out more details about the foreclosure process and the defenses that might be available at 754-400-5150 or by filling out our online form.
Florida’s Foreclosure Process
A borrower is in “default” when he or she stops making payments to the lender as required by the terms of the note and mortgage. Under the mortgage, the lender, the entity that “owns” the note and mortgage and/or an entity that is otherwise “entitled” to foreclose has the right to bring a lawsuit to foreclose on the subject property. The plaintiff in the foreclosure lawsuit is the bank, servicer, investor, trust and/or whoever owns the note and mortgage or is entitled to enforce either on behalf of the owner.
Plaintiffs in foreclosure actions are held to the same burden of proof as any plaintiff in a civil matter — they must prove each element of their case by a preponderance of the evidence. Preponderance means the greater weight of the evidence. A foreclosure plaintiff must establish that they are the correct party to bring the action, that they are entitled to receive payments under the note and/or that they are entitled to foreclose. This concept is known as “legal standing,” which requires the plaintiff to plead in the complaint — and prove — that the plaintiff is the “owner and holder” of the note or is in some other way entitled to foreclose on the owner and holder’s behalf.
Establishing standing can be difficult in situations where the mortgage was transferred on the secondary mortgage market and then securitized. In many instances these days the plaintiff is not the original mortgagee or lender who is listed on the closing documents. In those instances, the plaintiff faces a significant hurdle that requires it to show that it obtained the right to enforce the note and mortgage in a lawful indorsement(s) of the note and assignment or chain of multiple assignments of the mortgage. This is both required by both the law and the numerous agreements generated in the securitization process.
Because Florida is a “judicial foreclosure” state, a court must intervene in order for a plaintiff to foreclose on a property. Some other “non-judicial” states do not require a court’s involvement for a lender to take back a mortgaged property where the borrower has defaulted.
It is also extremely important to know that Florida is also considered a “right of recourse” state. This means that a lender has the right to go after the borrower for recourse or the amount of the loan that was not satisfied by the foreclosure auction. In other words, if you owe $100,000 on a property that you lose in foreclosure and the property is only worth $75,000 at the time of the foreclosure sale, the foreclosing party has a right to pursue you for the $25,000 deficiency. This can either be pursued as part of the foreclosure action, as it is typically done, or a plaintiff has up to five years after the foreclosure sale to file a separate lawsuit in order to attempt to recover that deficiency. Deficiency judgments can be successfully negotiated away, litigated, or discharged in bankruptcy.
The timelines below set out the relevant periods in a typical pre-foreclosure and foreclosure process in Florida.
Day 1: Payment is due but no payment is made.
Day 7-10: Lender/mortgage servicer calls borrower.
Day 16: Late charges begin to accrue.
Day 20-25: Lender/mortgage servicer calls and writes borrower.
Day 30: Default reported to credit bureaus and lender sends second letter.
Day 40: Lender/mortgage servicer sends letter with payment options.
Day 60: Lender/mortgage servicer sends demand letter or “acceleration notice”; credit bureaus update their reports.
Day 90: Lender/mortgage servicer sends file to attorney; credit bureaus update their reports.
Day 90+: Any time after 90 days, the entity claiming their entitlement to foreclose can file suit. In a situation where the entity seeking to foreclose is not the same entity as the original mortgagee or lender, with competent counsel, this process alone can take more than 12 months.
Day 1: Complaint and lis pendens are filed and served with a summons on the property owner.
Day 20: A responsive pleading is due; with no responsive pleading filed, plaintiff moves for default judgment. With competent legal counsel, there can be a number of legitimate issues raised through motions, hearings and discovery requests that would extend this time period greatly.
Day 45-60 (If not represented by competent counsel): Court schedules hearing for default judgment and enters final judgment of foreclosure at the hearing. The statute says that the court should order the sale of the property on a specified day within 20-35 days of the order. However, sales can still lawfully take place later than 35 days and are sometimes set many months after the order is entered.
Day 80-95 (If not represented by competent counsel): Notice of sale published once a week for two consecutive weeks in a local publication, with last posting at least five days prior to sale. Auction sale conducted. Winning bidder applies 5 percent deposit from funds advanced electronically prior to sale and then pays the rest by noon the following day. Dade, Broward and Palm Beach counties conduct their auctions online. Certificate of sale is filed “promptly” after sale and right of redemption ends when certificate of sale is filed.
Day 105 (If not represented by competent counsel): Ten days after filing certificate of sale, certificate of title is issued. Title vests, and no further action is necessary unless property is still occupied.
Day 106 -119 (If not represented by competent counsel): If property is still occupied 1-14 days after certificate of title issues, sheriff issues notice to vacate.
Day 119 – 140 (If not represented by competent counsel): Sheriff vacates the property 1-21 days after notice to vacate.
However, if the entity seeking to foreclose is not the original mortgagee or lender, with competent counsel, this process can take many years, if the bank is, in fact, ever able to foreclose.
Contact Our Florida Foreclosure Defense Attorneys Today
The information above is intended to be a brief overview to help you understand the basics of how the foreclosure process works.
To find out more about foreclosures or to inquire about how our Florida foreclosure defense attorneys can help, contact us today for a FREE CONSULTATION at 754-400-5150 or by filling out our online form. Our country’s history is filled with examples of people who have struggled financially but then have gone on to become famously wealthy. They all reclaimed their part of the American Dream and we want to help you reclaim yours! Let the lawyers and staff of the Law Offices of Evan M. Rosen, serve you!
More Information on Foreclosures in Florida
- Foreclosure Defense
- Understanding the Mortgage Process
- Arsenal of Defenses
- Understanding Your Options
- About Our Fees
- Foreclosure FAQs
- Foreclosure Definitions