Foreclosure defense allows you to defend the repossession of one of your most important assets.
Your home is one of your most valuable assets, and when you have defaulted on mortgage or homeowner association payments, there is a chance of losing it. Foreclosure is a word that no homeowner wants to hear, but it doesn’t have to be the end.
Parker & DuFresne has defended more than 700 foreclosure defense cases, and we have a wealth of experience working to stop foreclosure.
With some of the best foreclosure attorneys in Jacksonville and Northern Florida, our team can help solve your most complex foreclosure problems and work toward the best solution.
No matter if you are facing wrongful foreclosure, or need to make a loan modification, we can help.
Foreclosure Explained
What is a foreclosure? When a borrower has defaulted on their mortgage payments, a lender will seek to take possession of the property (“collateral”) to offset any loss.
A foreclosure can also occur if a homeowner falls behind in payments to his homeowner association or condominium association. Florida has a unique situation where every foreclosure is a judicial foreclosure, meaning they are controlled entirely by the courts and governed by a set of guidelines.
Our experienced foreclosure defense attorneys can help you assess where you are in the process.
The Foreclosure Defense Process
By falling behind on payments, the lender will begin the process of foreclosure. This is a lengthy process that varies from case to case:
The lender or HOA (called “the plaintiff”) advises you must bring your loan “current” by a given date. If you don’t, the plaintiff can decide to take legal action.
The plaintiff’s attorney will file the Complaint with the court, announcing that you are officially being sued. The Lis Pendens is recorded in the official county records to put the world on notice that the property is the subject of a foreclosure case.
The plaintiff serves a copy of the Summons and Complaint on you or a member of your household. If the plaintiff cannot find you, the plaintiff can place an ad in the local paper, thereby serving you by “publication.”
The Complaint must allege all of the requirements necessary to be proven by the plaintiff to foreclose your interest in the property. You have 20 calendar (not business) days to respond.
The plaintiff files this motion after you respond to the Complaint. It argues that the facts necessary to prove the plaintiff’s right to foreclose are not in dispute, and as a matter of law, the judge should allow the foreclosure.
If the judge agrees, he enters a judgment in the plaintiff’s favor and sets a sale date. If the judge disagrees with the plaintiff’s motion, he sets a trial date on the calendar.
If the judge denies the plaintiff’s Motion for Summary Final Judgment, the case will proceed to trial. At trial, the plaintiff must present evidence through witness testimony that foreclosure is proper.
You have the right to cross-examine the plaintiff’s witnesses and present witnesses of your own, which is why it is best to work with a foreclosure attorney for this process.
Based on the facts and the law, the judge will make a decision.
According to either the plaintiff’s Motion for Summary Final Judgment or a trial in which the judge finds in the plaintiff’s favor, the judge will enter a Final Judgment of Foreclosure.
That judgment will contain a “sale date.” That is the day the house is auctioned to the highest bidder.
If you dispute the legal sufficiency of the judgment, you have 30 days to file, or have your foreclosure attorney file, an appeal to the District Court of Appeals. The filing of an appeal will not itself stop the foreclosure sale.
If you file bankruptcy (either Chapter 7 or Chapter 13) before the foreclosure sale of your property, the automatic stay will stop the sale. For more information, please refer to our section on bankruptcy.
On the foreclosure sale date, the Clerk of Court auctions the property. The auction occurs online or at the courthouse, depending upon the Clerk’s procedures. Third-parties may bid on the property.
The plaintiff can “credit bid” up to the amount listed in the Final Judgement of Foreclosure, without actually spending a dime.
Ten days after the foreclosure sale, The Clerk of Court issues a Certificate of Title to the auction winner. At this time, the actual ownership of the property transfers from you to the new owner.
If the plaintiff is the highest bidder, the plaintiff will get a certificate of Title and take possession of the property. Plan to be out of your home when the Certificate of Title is Issued.
The plaintiff can sue you for the difference between the amount in the Final Judgment of Foreclosure and the value of the property on the date of the foreclosure sale (known as the “deficiency amount”).
Take note that the auction sales price is irrelevant.
The plaintiff must file this lawsuit (or motion) within one year of the date of the foreclosure sale. Like any money judgment, the plaintiff can garnish your wages or bank accounts to collect the deficiency amount.
Options to Stop Foreclosure
There are only so many options available when trying to stop foreclosure. By allowing our lawyers to negotiate with the mortgage company, it may be possible to reinstate the mortgage to allow you more time.
Filing a Chapter 7 would buy you extra time to sell your house or move out. Filing Chapter 13 would most likely give you a chance to catch up with your payments.
In both Chapter 7 and Chapter 13, you can file a motion to compel your lender to modify the terms of your mortgage. Please call us to discuss mortgage modification in bankruptcy.
Experienced Foreclosure Defense Lawyers Defending Your Home
We want to give you the ability to fight your foreclosure. Our lawyers will dedicate their time and effort to you. While we are litigating for you, you don’t pay the monthly mortgage payments.
We will work to modify your loan and keep your home. Give our team a call.
Questions or Concerns?
Before your consultation, contact us to learn more about foreclosure defense.
