When someone receives a foreclosure notice, the first thought that often comes to that person’s mind is the fear of losing their home. A foreclosure notice does not mean that someone is automatically out of his or her home. As a homeowner in Florida, you have rights. It is important that any person in this situation understands clearly what those rights are.
Understanding the Timing
A notice of foreclosure does not mean that it will happen immediately. The homeowner has the legal right to remain in the home until the lender successfully completes all foreclosure procedures and sells the home, which can take several months, depending on the circumstances involved.
File a Response
A foreclosure is a legal action taken by a lender, normally a bank, to take back the property connected to the mortgage or loan. It is important that certain procedures are followed for the foreclosure to be valid, and this first step would be for the lender to file a lawsuit and serve the homeowner with a complaint.
Florida law allows 20 days from the date the person is served with the notice of foreclosure to legally respond to the complaint. If the borrower does not respond to the complaint within that time period, the lender can ask for a default judgment, which is essentially the court granting the foreclosure without any legal fight. A default judgment will cause the process to move much quicker. It is for this reason we always advise individuals facing foreclosure to contact an attorney immediately upon receiving the legal complaint.
By filing a response, the lender will then need to go through the legal processes necessary to obtain the judgment. Depending on whether the borrower has a good defense to the foreclosure action, this could involve discovery, trial and judgment. If not, the lender may file a motion for summary judgment, to which the borrower has the right to respond, which will also take additional time.
Remaining in the Home During the Legal Proceedings
Even if the borrower does not have much of a defense to the foreclosure action, he or she can remain in the home until the lender finishes the legal proceeding and then later sells the home. Foreclosures in the State of Florida traditionally take longer since a judicial process is required.
Other states allow for nonjudicial foreclosure, which allows lenders to sell a home as soon as 30 days on the courthouse steps without ever going before a judge. Fortunately, this is not the case for Florida homeowners. According to a study from ATTOM Data Solutions, Florida was one of the top five states with the longest average timelines for foreclosure completion. In 2019, the average foreclosure took 1,196 days to complete from filing the lawsuit to the selling of the home.
Right of Reinstatement
Essentially all mortgages in Florida allow for the right of reinstatement during a foreclosure action, which means that if the borrower is able to come up with the money for the late payments or is able to settle with the bank to cure any arrearages, the lender or bank must then dismiss the foreclosure case. If the homeowner can somehow obtain financing to help him or her pay off these late payments, he or she may never have to move out of the home at all. This reinstatement can happen even after the foreclosure case has been filed.
If the lender is successful in the foreclosure case and a judgment is granted, the next step is for the court to set the foreclosure sale. This sale will happen anywhere between 20 to 35 days after judgment is issued. Additional time may be requested, if needed, but this request will need to be made and approved through the court. However, keep in mind that this sale must happen after the entire legal action has successfully completed. The court will not normally set a sale of the home for the next day or even next week after judgment is issued.
Eviction after Foreclosure
The court will normally include the eviction proceeding as part of the foreclosure action and will issue a certificate of title to the home as part of the judgment. The lender will then be able to file a motion for writ of possession. If the motion is granted, the former homeowner has 24 hours at this point to move out of the home.
Choosing the right attorney can make the difference between whether or not you can keep your home. A well-qualified Miami foreclosure defense attorney will not only help you keep your home, but they will be able to negotiate a loan that has payments you can afford. Miami foreclosure defense attorney Timothy Kingcade has helped many facing foreclosure alleviate their stress by letting them stay in their homes for at least another year, allowing them to re-organize their lives. If you have any questions on the topic of foreclosure, please feel free to contact me at (305) 285-9100. You can also find useful consumer information on the Kingcade Garcia McMaken website at www.miamibankruptcy.com.