RESIDENTIAL MORTGAGE LENDER FORECLOSURE
Nov. 9, 2021
We represent private lenders in residential mortgage foreclosure actions. Most lenders work with the borrower long before making the decision to start the foreclosure process.
Pursuant to Florida law the first step in determining if there is cause of action for foreclosure is to identify the elements of a foreclosure action.
A foreclosure complaint must state the following elements: (1) a mortgage agreement, (2) a default in the mortgage agreement, (3) an acceleration of the amount due, and (4) the amount due and owing.
How does the mortgage foreclosure process work?
Pre Foreclosure: Prior to filing the foreclosure complaint it must be determined that the borrower has been in default of a least one monthly payment
Notification: The Lender has notified the Borrower of the default, how to cure the default, the opportunity to cure the default prior to filing, and loss mitigation options.
Loss mitigation: The Borrower may be eligible for forbearance, reinstatement, repayment plan, loan modification, deed in lieu of foreclosure, or short sale.
Filing decision: The Borrower is not eligible for loss mitigation and has been in default of at least one mortgage payment.
File Notice of Lis Pendens:“A Lis Pendens must state the following: (a) the names of the parties, (b) the date of the institution of the action, the date of the clerk’s electronic receipt, or the case number of the action. (c) The name of the court in which it is pending. (d) A description of the property involved or to be affected. (e) A statement of the relief sought as to the property. (f) In the case of any notice of lis pendens filed on the same date as the pleading upon which the notice is based, the clerk’s notation of the date of receipt on the notice shall satisfy the requirement that the notice contain the date of the institution of the action.” Florida State Statute 48.23.
File Verified Complaint: The Plaintiff must be the holder of the promissory note or entitled to enforce the note. The complaint must attach a copy of the mortgage, a copy of the promissory note, certification of the note, and a copy of the default letter.
Service of Process: The Defendant must be personally served with a copy of the summons and complaint.
Answer:The Defendant will have twenty (20) days to respond to the foreclosure complaint before the Plaintiff can proceed further with the process.
No Answer: If the Defendant fails to file an answer then the Plaintiff may file a Motion for Summary Judgment.
Motion for Summary Judgment: A motion setting forth that there is no genuine dispute as to any material fact. The moving party is entitled to judgment as a matter of law.
Final Judgment of Foreclosure: An order signed by the Judge granting the Plaintiff the value of the claim and the amounts due. If the sums are not paid the Clerk of the Court shall sell the property to the highest bidder for cash at a public sale.
Judicial Sale: The sale is conducted by public auction. The successful high bidder shall post a deposit with the clerk of court equal to 5% of the final bid.
Certificate of Title: After 10 days if no objection to the sale is made the clerk shall file a certificate of sale.
Deficiency Judgment: In an owner occupied residential property the deficiency may not exceed the difference between the judgment amount. If a short sale the deficiency amount may not exceed the outstanding debt, and the fair market value on the sale date.
If you are a private lender and are considering starting a foreclosure action you can contact our office for a free consultation (727) 224-9869.