Foreclosure in Florida can be an overwhelming and complicated experience. Understanding how the process works will alleviate stress and help you move forward once the foreclosure proceedings are complete. Here we take a moment to go over how the foreclosure process works in Florida.
Step 1: Missed Payments
Delinquency and default are both loan-related terms for missed payments. A loan becomes delinquent when you make payments late (under your contract) or miss a regular installment payment(s).
Default is the eventual consequence of extended payment delinquency, or when a borrower fails to keep up with the ongoing loan obligations. Additionally, if you deed your property you may be in default. Your loan may also default by not repaying the loan according to the terms included in the promissory note agreement; this may include making insufficient payments. A default may also exist if you fail to insure your property or pay property taxes.
Some mortgage loans may contain language that your mortgage is in default even if your only miss one payment or are over 30 days late. This default language permits mortgage lenders to start the foreclosure procedure once your loan goes into default.
Step 2: Pre-Foreclosure Loss Mitigation Period (Dual Tracking)
Generally, for a foreclosure lawsuit to be filed in Florida, the debtor must be delinquent for at least 120 days. Until this happens, a lender can request payment by contacting the borrower or issue a breach letter.
During this period, the debtor and lender should discuss potential loss mitigation options such as a loan modification, short sale, on assumption of the mortgage.
Step 3: Consultation with a Foreclosure Defense Attorney
If a foreclosure lawsuit seems to be inevitable, it is highly suggested to meet with an experienced foreclosure defense attorney to avoid having a foreclosure on record. An attorney, like the team at Owen & Dunivan, will also seek viable options to foreclosure as well as represent the borrower’s best interests throughout the foreclosure process.
Step 4: Issue of Notice of Default
The first step in foreclosure proceedings is for the lender to notify the debtor that a civil complaint has been made against them. This officially declares that a borrower is in default due to missed mortgage payments.
Step 5: Filing of the Lawsuit
The next step is to file the lawsuit (typically a Summons and Complaint) which indicates that litigation is pending. The action will be publicly recorded and is the formal start to the judicial foreclosure process. The complaint is typically hand-delivered by the sheriff of the county where the borrower resides.
Step 6: Borrower Response
The borrower will typically have 20 days to file with the clerk of court with a response to the Summons and Complaint.
At this stage in the process, a top-rated foreclosure attorney will raise a proper defense(s) on the borrower’s behalf. If an answer to the complaint is not provided by the borrower, the process may proceed to the summary judgment without the borrower having the opportunity to plead his or her case.
Step 7: Motion for Summary Judgment
During this step of foreclosure, the lender will likely file a motion for a summary judgment with hopes to avoid formal court proceedings. Should the judge rule in favor of the motion, both parties can present their cases in the summary judgment hearing and a decision will be made by the judge.
Step 8: The Foreclosure Trial
If the motion for summary judgment is not granted, a foreclosure trial will ensue. At the trial, both parties will have the opportunity to present their arguments and the foreclosure judge will issue a ruling.
Step 9: Auction & Eviction
If the judgment is in favor of the lender, the property will be sold at an auction, typically occurring a few weeks after the trial. Once sold, the title of the property will be issued to the new owner and the debtor will be evicted.
If a tenant is in the property, certain protections may exist.
Step 10: Deficiency Judgment
In the state of Florida, lenders have the option to seek a deficiency judgment for the dollar amount not covered by the property’s sale price. A qualified foreclosure attorney knows how to keep this from happening.
Don’t Face Foreclosure Alone
Are you struggling to pay your mortgage and worried that foreclosure is a possibility? The Tampa law offices of Owen & Dunivan can help. Our foreclosure defense attorneys have the experience and tenacity to handle your case and will ensure your legal rights are protected. Call us today at (813) 506-6768 to schedule a free consultation.
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