If you’re facing foreclosure, you are NOT alone. Foreclosure filings are at an all time high. If a foreclosure lawsuit has recently been filed against you, this does NOT mean that you have to lose your home. You have more rights than you think, rights your creditors do not want you to know. If you have steady, regular income and the desire to keep your home, call us now for more information. Don’t delay – call us now. For a FREE Consultation call (321) 255-332 or (877) 868-7239
When a borrower fails to make any payment that is due pursuant to a promissory note or mortgage, they are in default. Upon the occurrence of a default, a lender will send a Notice of Default to a borrower. Some mortgages have specific requirements for the contents of a Notice of Default, but all will inform the borrower of their default and demand that the default be cured, usually within a certain period of time. If the default is cured as set forth in the Notice of Default, there is usually no further action taken. If the default is not cured, foreclosure proceedings can be instituted. In some states, depending on the terms of the note and mortgage, foreclosure proceedings can begin immediately upon default. In those situations, the Notice of Default will inform the borrower of the default, but the borrower will not be able to cure the default just by paying the missed payments. In those situations, the only way to stop the foreclosure will be to either pay the total amount owed on the mortgage, or to enter into a forbearance, reinstatement, modification, mediated settlement, or other resolution.
A foreclosure begins when the lender/mortgagee files a lawsuit against the borrower/mortgagor. The document that is filed is called a Complaint. The Complaint will set forth the facts showing the pleader is entitled to relief. In a foreclosure action, the plaintiff must allege that the defendant has failed to pay a debt that is secured by the mortgage, and that pursuant to the terms of the mortgage, they are entitled to foreclose the mortgage, have the mortgaged property sold, and have the proceeds of the sale applied to the debt that is owed.
Once a Complaint is filed, it must be served on the defendant. After service of the Complaint, a defendant has 20 days to file a response. If a response is not filed, the plaintiff can seek a default judgment against the defendant. A defendant can file an Answer to the Complaint, or they can file a Motion to Dismiss. A Motion to Dismiss tests the sufficiency of the Complaint to state a cause of action. If a Motion to Dismiss is filed, it will be ruled on before an Answer must be filed. If a Motion to Dismiss is denied, or if no Motion to Dismiss is filed, the defendant will file an Answer to the Complaint. In the Answer the defendant admits or denies the allegations of the Complaint and sets forth any affirmative defenses.
Some affirmative defenses to a foreclosure action include (1) Failure to produce the note. This defense is asserted when the foreclosing entity does not have the original promissory note. Often notes and mortgages are sold, assigned, or otherwise transferred from one entity to another. The entity that owns and holds the note and mortgage is the entity entitled to bring an action on the note and seek the foreclosure of the mortgage. In an action on a note, the original note must be surrendered. Although there is a statutory mechanism for “re-establishing” a lost note, the entity that is foreclosing must either turn in the note, or re-establish the note pursuant to statute. Without submitting or re-establishing the note, and action may be subject to dismissal. (2) Real party in interest. All legal actions must be brought by the real party in interest. That is, the actual party with the claim that has standing to bring the action. Sometimes the foreclosure will be brought by an entity that purchased a bundle of mortgages from the original lenders. For instance, the lender/mortgagee may have been ABC Mortgage Company. Then, 10 years later, a foreclosure action is filed by Wells Fargo, after Wells Fargo bought the mortgage (along with 100 others) from ABC. This is not a problem, as long as there is a document known as an Assignment whereby ABC assigned your mortgage to Wells Fargo.
Ultimately the issue will go before a judge, usually on a Motion for Summary Judgment. There are very few trials of foreclosure actions, because they are usually pretty straight forward. Unless the debtor can show that the payments were being made, or has a valid excuse for non-payment, a judgment of foreclosure will be entered. The judgment of foreclosure will set forth the amount owed on the note, will order the sale of the mortgaged property with the proceeds thereof to be applied to the debt, and will set the date of the foreclosure sale, usually a month to a month and a half after the date of the judgment.
After a judgment of foreclosure is entered by the Court, a Notice of Sale is published. In Florida, the Notice of Sale must be published by the plaintiff or plaintiff’s attorney once a week for two consecutive weeks in a newspaper of general circulation in the county in which the property is located. The Notice of Sale contains a legal description of the property being sold, the time and place of the sale, and other information required by law. The sale usually takes place about one to two months after the judgment is entered. At the sale, the property is sold to the highest bidder, and the amount received is applied to the plaintiff’s judgment.