Florida Chapter 13 Bankruptcy Attorney
When facing foreclosure nothing is the worst thing you can do. The longer you wait to challenge foreclosure, the fewer options you will have to explore. If you have received a foreclosure notice or you are behind on mortgage payments, it is critical to act fast and consult with an experienced attorney to protect your investments. At the Law Offices of Craig Feldman, we have 20 years of experience in advising clients and helping them achieve debt relief and resolve foreclosure through bankruptcy.
Hope is not a strategy. You need a plan to achieve security and financial independence. Let us help. Call 954-703-4109 or contact us by e-mail to schedule a free consultation with our Fort Lauderdale foreclosure defense attorney.
The Foreclosure Process
If you don't make your payments, the bank cannot just kick you out of your house. They have to file a foreclosure action. A foreclosure action is a civil lawsuit.
The Complaint
The foreclosure action is begun by the lender filing a Complaint. A Complaint is a paper which essentially states that you broke your promise to pay the Note and Mortgage, and requests that the property be sold at a foreclosure sale.
Being Served
You must be served with the Complaint. In Florida, service is accomplished by a sheriff or process server handing you a copy of the Complaint and a Summons. A Summons is a paper which requires you to file a written response to the Complaint within 20 days. The Summons cautions that if you do not respond, a foreclosure judgment may be entered against you without further notice.
Filing A Response
Filing a response, called an "Answer" within the 20 day time limit keeps you from having a judgment automatically entered against you. By filing a response, you will receive notices of all hearings and court proceedings in the foreclosure action, including copies of all papers filed by the lender's attorney. The purpose of this is not necessarily to defend the lawsuit, but to make sure the court and attorney know that you are participating in the lawsuit. If you wish to actively fight the foreclosure you should see an attorney. A copy must be mailed to the lawyer, and the original mailed to the Clerk of Court.
The mere filing of an Answer adds time to the foreclosure process. This could be advantageous to the homeowner. Perhaps you need to stay in the property a bit longer for financial or other reasons. Perhaps you are trying to sell the property. You may need the time to negotiate a short sale or modification.
Raising Defenses
Another reason to file a response is that you may have defenses to the foreclosure action. A "defense" means that you have valid legal grounds to fight or object to the foreclosure. These defenses must be stated in the Answer. If they are not raised at this time, you may find later that you have waived them, or at least that it is much more difficult to raise them.
Motion To Dismiss
A motion to dismiss points out technical errors in the Complaint. A common technical error lenders make is failure to attach a copy of the Note and Mortgage to the Complaint. Another common error is that the lender named in the Complaint is not the original lender with whom the mortgage was signed. Most technical deficiencies can be corrected eventually, but this will purchase additional time.
Counterclaims: Suing Back
You may have grounds not only to defend the foreclosure, but actually "sue them back" in a counterclaim. If you can show the lender engaged in predatory lending, fraud, Truth in Lending violations or other illegal conduct, you may be in a position to file a counterclaim. If lender wrongdoing can be shown, the lender could wind up losing its right to collect on the mortgage.
If you believe that you have grounds to file a counterclaim because the lender engaged in some type of serious misconduct, then you should bring it to an attorney. The attorney will evaluate your case and weigh the costs and benefits of undertaking this type of litigation. Be aware that the Summons only gives you 20 days to respond, and you therefore need to go to an attorney quickly.
The Final Judgment of Foreclosure
The judgment which the judge signs carries two important pieces of information. The first one is the judgment amount. The judgment amount is the total of all money owed by you to the lender, including the principal balance of the mortgage, interest, penalties, late fees, attorneys fees, title search fees, etc. The deficiency judgment amount is the amount that the property will have to sell for to fully pay off the lender.
The other important information is the foreclosure sale date. In Florida the foreclosure sale must be held within 35 days. Judges however may, under certain circumstances, allow some extra time beyond the 35 days. If you need extra time, you should request it at the MSJ hearing.
The Foreclosure Sale
The foreclosure sale is an auction where the public is invited to place bids on your property. Prior to the foreclosure crisis, bidders would show up at these auctions. Now that most properties are upside down, there is little or no bidding at the foreclosure sales. As high bidder, the lender ends up owning the property. If you have not vacated the property by ten days after the sale date, the lender can evict you from the premises in fairly short order.
To explore your options in debt relief and bankruptcy, please call 954-703-4109 or contact us by e-mail to arrange a free consultation with our Fort Lauderdale, Florida bankruptcy lawyer. Se habla español.
