Foreclosure Defense

Foreclosure Defense:
Being served with a foreclosure lawsuit can be a frightening thing to face. Everyone has heard of or knows of people who have been removed from their homes by the Sheriff due to a bank foreclosure. When your lender sues your first thoughts are that you might be next.

With the right help facing foreclosure is a problem that has a solution. At First legal we have helped hundreds of homeowners all over South Florida beat their foreclosure and save their homes.

Foreclosure Process in Florida:
Florida is a judicial foreclosure state which means that if a lender wants to foreclose on a mortgage it has to institute legal proceedings in the Circuit Court of the county where the property is located. However, before your lender can have the clerk of courts auction off your home they have to comply with several requirements.

• Missed payment: Once you miss your first mortgage payment your lender will probably start contacting you via telephone and mail to understand why you missed a payment and offer you loss mitigation options. At the same time, once you miss a payment your lender will start imposing late fees on the past due amount. This is usually one of the best times to reach out for help, whether directly to your bank or to an experience attorney. At this point it is likely your lender is willing to work with you to help you get through your hardship and bring your mortgage current. It is important not to ignore your lender’s notices that you have fallen behind as hiding from the problem will only make it worse.

• Notice of Default & Acceleration: If you are unable to bring your loan current and fall over 90 days behind your lender will have the right to consider you in default of your finance agreement and will send you a letter stating their intention to accelerate the promissory note so the full amount of money you borrowed and have not repaid becomes due and payable immediately unless you are able to cure the default within 30 days. After the 30-day cure period expires, it is very likely that even if you try to send money to your lender they will refuse to accept it. At this time you will also start receiving letters from your lender’s attorney detailing what steps your lender will take next should you fail to bring your loan current. These notices should immediately alert you that your lender is setting up the groundwork to file a foreclosure lawsuit. Once your lender has brought in an attorney to deal with your loan you should strongly consider hiring your own attorney to represent you. You should not just rely on the bank’s letters and what their customer representatives are telling you. Having an attorney working for you will help you better understand the situation you are in and what your options are. Taking action now might prevent this situation from escalating out of control and putting your home further at risk. Handled correctly, at this point you can still prevent your lender from ever filing a lawsuit against you. As always, the best course of action is not to hide from the situation but to deal with it head on instead. A proactive approach can help you mitigate any negative impact on your home and credit

• Filing a Foreclosure Lawsuit: In order to start the judicial foreclosure process your lender has to file a foreclosure complaint against you in the circuit court of the county where your property is located. Along with the filing of the complaint, your lender will record a lis pendens in the public records of the same county, giving notice to all that there is litigation pending against the property. For the Court to obtain jurisdiction over you and for your lender to be able to move the case forward, your lender has to serve you with a copy of the complaint. Your lender will hire a process server who will go to your home, identify himself as a process server and give one or more copies of the summons and complaint. It is common for lenders to include tenants, spouses or anyone else they think might have an interest in the property as named defendants to the lawsuit, even if they have nothing to do with the mortgage.

Once you are served with the complaint you have 20 days to respond to it by filing an answer with the court. It is critical you do not miss this deadline as failure to timely respond can lead to a judicial default being entered against you which amounts to you forfeiting your right to defend the foreclosure. While many people may attempt to defend themselves, it is unlikely you will be familiar enough with Florida’s Rules of Civil Procedure and with foreclosure law in Florida to be able to mount a real defense against your lender and their team of attorneys. At this point it is critical you contact an experienced foreclosure litigation attorney. Your attorney will be able to review the complaint filed against you and determine what are the appropriate procedural steps to take and what affirmative defenses are available to you.

• Foreclosure Litigation: In their rush to reposes properties and get non-performing loans off their books, many lenders do not pay close attention to the detailed requirements Florida law imposes on them to be able to foreclosure. What this means for homeowners is that often times there will be several effective defenses you can raise against your bank’s efforts to take away your home. An effective lawyer will be able to identify these issues and raise them with the court, either in a Motion to Dismiss, getting rid of the case before it even really starts, or through an Answer and Affirmative Defenses. Through the discovery process your lawyer can demand documents and other relevant information from your lender that can help in substantiating the defenses raised and can serve as evidence of your lender’s improper actions.

By aggressively litigating a foreclosure lawsuit, you not only prevent you bank from being able to quickly take your home, but you can substantially increase your leverage when it is time to negotiate a settlement. Another great advantages of having a lawyer who will litigate for you is that you will be able to continue living in your home while the litigation unfolds, or you will be able to continue collecting rent from your tenants if this is an investment property.

Is First Legal the Right Choice for You?