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foreclosure defense

Owning a home is part of the American Dream. You've worked hard to make your dream a reality. Unfortunately, a foreclosure can destroy everything you've worked for. Often times, our clients face foreclosure through no fault of their own. Loss of employment, medical conditions, and divorce, can all affect your ability to pay your mortgage. We understand, and we're here for you. 

If you've been sued for foreclosure, it is essential that you contact an experienced attorney as soon as possible. If you fail to respond to the foreclosure complaint within twenty days, the lender will seek a default against you. Once a default is entered, the bank can obtain judgment and sell your property at a public auction.


Don't wait. Call us today at (239) 214-6230 for a free in-person consultation.  


Foreclosure Defense


In 2008, Lee County was at the heart of the foreclosure crisis. Residents of Fort Myers, Cape Coral, Lehigh, and Bonita Springs, suffered from some of the highest rates of foreclosure in the country. Many folks here in Southwest Florida fell victim to the worst economy our country has seen since the Great Depression. 


Fortunately, the housing market has recovered, and the rate of foreclosure is down significantly. However, many people are still struggling to make ends meet. Often times, homeowners can’t make mortgage payments through no fault of their own. Loss of employment, medical conditions, and divorce are among the leading factors that lead homeowners to default on their mortgage payment.  If you’ve fallen behind on your mortgage payment, there are certain things you should know. 


First, there are several ways to avoid a foreclosure judgment. Servicers (the entity that collects your mortgage payment), are required by Federal law to provide you with information regarding potential loan modification options. If your loan is modified, your loan will be current, and any foreclosure action will be dismissed. In certain circumstances, your monthly payment will be lower, which will allow you to make payments and keep your home. 


Even if you don’t qualify for a loan modification, you may be able to qualify for other non-retention options, such as a short sale or deed in lieu of foreclosure. In the short sale scenario, the servicer agrees to accept less than is owed on the mortgage when you sell the property. The difference between what you owe, and what the bank accepts, is then waived (there may be tax implications involved in a short sale). This allows you to avoid a foreclosure judgment, and potentially receive cash incentives from the servicer for agreeing to a short sale. 

Of course, you always have the option of fighting the bank in the foreclosure action. Usually, this involves making sure the bank has the appropriate documentation to foreclose on your property, and challenging the amounts that are due on your loan. If you prevail in the foreclosure action, you may be entitled to recover all of your attorney’s fees and costs from your lender. And, while the foreclosure is pending, you are entitled to stay in your home – regardless of whether the mortgage is being paid. 


If you’ve fallen behind on your mortgage payments, or are being sued for foreclosure, you can’t afford to wait. If you’ve been served with a summons, and you fail to respond to the complaint within 20 days, the bank will seek a default against you. Once a default is entered, the bank can obtain judgment, and sell your property at a public auction.  

  • What is a foreclosure complaint?
    A foreclosure complaint is the legal document that a lender is required to file in order to initiate foreclosure proceedings against you. Unlike many states, Florida is a judicial foreclosure state, which means a lender is required to obtain a foreclosure judgment from the court in order to sell your property at a public auction. The complaint describes the nature of the allegations, and the relief that the bank is seeking against you. Generally, in addition to foreclosing on the property, the bank will also seek a deficiency judgment in the event that the property is worth less than you owe.
  • What is a lis pendens?
    If you’ve been served with a foreclosure complaint, chances are you also received what is known as a lis pendens (literally translated means “a pending suit”). The purpose of the lis pendens is to give notice to potential buyers, or other lenders, that your property is involved in a lawsuit. Once the lis pendens is recorded, it will be virtually impossible for you to sell or refinance your property until the lawsuit is resolved.
  • What is a certification of promissory note?
    In Florida, when a lender initiates a foreclosure action, the lender is required to certify possession of the original Note that you executed when you closed on the loan. At closing, you sign a promissory note (the promise to repay the bank), and a residential real estate mortgage (the mortgage conveys a security interest in your property in order to guaranty repayment of the note). The original Note is a negotiable instrument, which generally means that possession is required to enforce the Note. Under most circumstances, Florida law requires the bank to have possession of the original Note in order to obtain a judgment against you.
  • How long does the foreclosure process take?
    Since Florida is a judicial foreclosure state, there are automatic safeguards that allow a homeowner to defend a foreclosure action. For example, a lender will be required to serve you with a copy of the complaint before it can proceed with its case and obtain final judgment (failure to properly serve the complaint makes any judgment void, which means you can challenge it later). Once you are actually served with the complaint, you will then have twenty days to file your response (unlike an eviction where the deadline is five days to respond). Generally, lenders are hoping that you will ignore the complaint, and not file a response. If you ignore the lawsuit a default will be entered against you, which will accelerate the entire process. On the other hand, if you actively defend the lawsuit the lender will not be able to obtain judgment (in many cases for several years).
  • Do I have to pay rent while the foreclosure is pending?
    In Florida, a lender generally cannot force you to pay rent while the foreclosure action is pending. This means that you continue to live in the property while the case is pending without paying your mortgage, taxes or insurance.
  • Does a bankruptcy stop a foreclosure?
    When you file a bankruptcy case, any and all other legal actions pending against you are automatically stayed, including a foreclosure. However, once you file bankruptcy the lender may get then permission from the bankruptcy court to proceed with the foreclosure case. So, while the foreclosure may be temporarily halted, it will not stop the foreclosure permanently.
  • What is a deficiency judgment?
    If the bank forecloses on your property, and the value of the property is less than you owe the lender, the difference is called the “deficiency.” Unfortunately, the lender is also entitled to seek a deficiency judgment against you after the foreclosure sale. If a deficiency judgment is obtained, the bank can enforce it just like any other judgment, which means potential garnishment of your wages and bank accounts.
  • What is a loan modification?
    A loan modification is an agreement between you and the bank that modifies the terms of your loan. Generally, the bank does this by extending the term of your loan (from thirty years to forty years), and by adding past due amounts back into the loan. While this allows you to keep your home in the short term, often times it also results in a worse deal for you in the long run because you will owe significantly more than your house is worth.
  • What is a short sale?
    As the owner of the property, you are free to sell your property at any time. This is true even if a foreclosure case is pending. However, if the value of the property is less than you owe the bank, you would need to pay the balance at closing in order to sell the property to the new buyer. Alternatively, rather than paying the difference, a lender may be willing to accept less than what is owed on your mortgage, which is known as a “short sale.” In order to close a short sale, you must receive the lender’s approval in advance.
  • What is a deed in lieu of foreclosure?
    A deed in lieu of foreclosure is a process whereby you agree to deed (transfer) ownership of the property back to the bank in order to avoid a foreclosure judgment. The end result is the same as a foreclosure, but you will not have a foreclosure judgment entered against you.
  • What is a cash for keys settlement?
    Lenders are not in the business of owning homes. They are in the business of collecting interest payments. As such, the bank doesn’t want a lengthy legal battle, or to foreclosure on a house that has been destroyed by the prior owner. Instead, the bank wants to sell your property as quickly as possible, for the highest possible price. In order to accomplish that goal, often times the bank is willing to pay you in exchange for not fighting the foreclosure, and for maintaining the property while the foreclosure case is pending. This process is known as “cash for keys” and is very common for homeowners that are willing to walk away from the property.
  • What are my defenses in a foreclosure?
    Every case must be examined on an individual basis to see what if any defenses are available. However, in every case, there are certain elements that the bank must prove in order to obtain a foreclosure judgment. If the lender fails to prove these elements, you will win the case regardless of any other defenses.
  • Can I appeal a foreclosure judgment?
    If a judgment is entered, you always have the right to appeal. However, there are strict timeframes for doing so, and the issue you would like to appeal must be preserved. Failure to raise the specific issue with the trial court will generally be considered a waiver of your right to appeal. If you file an appeal of a foreclosure judgment, you may be able to obtain a stay of any eviction proceedings while the appeal is pending, but that does not happen automatically.
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