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Homeowners/Defendants Statement

“What happens if my loan is going to go into foreclosure?”

If you have received notification from your lender or loan servicer that your loan is being referred to an attorney for foreclosure, the following will provide you with some information as to what you can typically expect.

Upon the law firm’s receipt of a referral, they will order a title search of the property. This search and its corresponding examination will provide the law firm with information regarding your existing mortgage, as well as any other liens recorded against both the property and the property owners. This information is used by the law firm to prepare the foreclosure complaint.

The foreclosure complaint provides most of the information regarding the legal proceeding. This information includes:

  • the names of the current owners of the property
  • the date when the note and mortgage was signed and where it was recorded in the public records
  • the current holder of the note and mortgage
  • the reason the mortgage is being foreclosed, in most cases, this is because of failure to pay the monthly payment and includes the date the loan is currently due for
  • the amount alleged to be owed
  • the names of any junior lien holders and their possible interest

All parties named in the complaint are thereafter referred to as Defendants. After the complaint and its corresponding papers (ie. Lis Pendens, Summons, etc.) are prepared these documents will be filed with the Clerk of the County in which the property is located. All Defendants will thereafter be served with a copy of the complaint and a summons which will provide them with notice of the pending proceedings and afford them the opportunity to respond. If a Defendant is unable to be located, in some cases, this service may be effectuated through publication.

The majority of costs associated with a foreclosure action are incurred during the beginning stages of the foreclosure. These costs include, but are not limited to, a title search and examination, court filing fees and the cost of service of process. Additionally, legal fees will also begin to accrue from the date the file is received for foreclosure.

After service, each defendant has thirty (30) days (pursuant to the Fair Debt Collection Practices Act) to file an answer or other responsive pleading. If a defendant does not file an answer, our office will make a motion to have them defaulted.

After all defendants are served, a motion for summary judgment will be made. This is a request that the court set a date to hear the case to determine if a Judgment of Foreclosure be will be entered. This hearing will be set at least twenty five days from the date the motion is mailed.

After the court enters the Judgment, the clerk will schedule a sale date usually at least thirty (30) days from the date the Judgment is entered.

The sale will be advertised by publishing a Notice of Sale in a newspaper in the county where the property is located twice before the sale date. Each notice will be published at least a week apart.

On the day of the sale, the clerk of the court will conduct the sale in an auction like fashion. The Plaintiff will receive a “credit bid” for the amount due under its Judgment, however, the Plaintiff may still elect to bid less than the total amount due under the Judgment.

If the high bidder is a third party, the plaintiff will receive the sale proceeds up to the amount they are owed. Any surplus funds will remain in the court registry to be distributed to junior lien holders or the owner, upon motion to the court to disburse such funds.

There is a ten (10) day waiting period after a foreclosure sale, before the Clerk issues a Certificate of Title. There is NO longer a statutory redemption period in Florida. After the Sale has occurred the Defendant does NOT have the right to redeem the property by paying the amount due under the Judgment.

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