- The bank files a Complaint. This normally happens after the homeowner has not made payments for at least three months.
- You must file a response and serve a copy on the attorney for the bank within 20 days from which you are served. If you fail to respond, the Clerk of the Court may enter a default against you. When a default is entered, you are deemed to have admitted the allegations in the Complaint. That means that you are admitting all the facts that will entitle the bank to foreclosure on the property.
- A phone call to the bank will not take the place of a written response to the Court and the bank’s lawyer explaining why a foreclosure should not be granted against you.
- Until the foreclosure is completed, you are the owner of the property. So even after a foreclosure is filed, you can still short sell the property, refinance your loan (if you have equity) or explore the possibility of a deed in lieu of foreclosure. A short-sale is when you sell the property to a new buyer “short” of what you owe the bank. A bank may or may not waive its right to collect the difference. A deed-in-lieu means the bank will accept a deed to the property as satisfaction for the debt. There will be no foreclosure on your credit and the bank will not have the right to go after you for a deficiency judgment – the difference between the amount that you owe and the auction price of the home.
- In December of 2009 the Florida Supreme Court ordered mandatory mediations of all homestead properties. Mediation was designed to solve the common complaint that borrowers cannot get someone from the bank with decision-making authority to review their loss mitigation documents to determine if they are eligible for a mortgage modification. Mediation is a process where an independent third party meets with you and your attorney and the bank and its attorney. The mediator helps all parties to reach an agreement on the terms of a workout. Mediations are not always successful, but they represent the last best chance to save the property or exit it on your terms.
- Most foreclosures are disposed of in the courts through motions for summary judgment. If the Court finds that there is no genuine issue of material fact and that the bank deserves to win as a matter of law, the judge will order the property to be sold in a judicial auction. If you prevail at a summary judgment in Palm Beach County, the judge will then automatically refer the case to trial.
- If you intend to defend your foreclosure case, you must be present at the motion for summary judgment and you must present your evidence that the bank does not deserve to foreclose on your home. Motions for summary judgment are highly technical, involving evidentiary rules, case law, and the Florida Rules of Civil Procedure. Most judges adopt a “waive it or raise it” rule: if you don’t point out a reason why you should keep your home, the judge won’t do it for you. You need experienced legal counsel to represent you at a motion for summary judgment. If you intend to beg for time, you can go alone. But if you really want to fight the bank, you need a lawyer who knows how to do just that!
- If a judgment is issued, the property will be set for judicial sale. In the past, these sales took place in the courthouse. Now, however, the sales in Palm Beach, Broward and many other counties in the State of Florida take place online.
- The sum of all evils. Unless an objection to sale is filed, ten days after the foreclosure sale, the clerk will issue a “Certificate of Title” to the buyer. After the buyer has the Certificate of Title, it can request a Writ of Possession. The Writ of Possession is the document that the Sheriff tacks on the door of a foreclosed property. When the Sheriff posts a Writ of Possession on the property, you have 24 hours to leave before the sheriff will put you and your belongings onto the street. It has been our experience that it always rains that day.
Summing up: Foreclosure is a very complicated, very serious process that could have long-term consequences for you and your family. You should contact a foreclosure defense attorney as soon as you are served with the summons and complaint so that you can know your legal rights. The first consultation with our firm is free. You have nothing to lose by coming to see us.
Remember: If you don’t move on your foreclosure, your foreclosure could end up moving you!