Foreclosure Defense Attorney in Brooksville, FL
As a foreclosure defense attorney in Brooksville, FL, we have seen how frightening, stressful, and difficult the foreclosure process can be, and unfortunately, things are about to get much worse in both Florida and the United States generally. On April 15, 2021, Attom Data, licensor of the nation’s most comprehensive foreclosure data, released its foreclosure report for the first quarter of 2021. The report showed a total of 33,699 foreclosure filings nationwide for the first quarter of 2021, and approximately one in every 4,078 housing units in the United States had a foreclosure filing during the first quarter of 2021. Moreover, Florida specifically was among the states with the highest foreclosure rate with one in every 2,237 housing units being up for foreclosure. As these statistics demonstrate, foreclosures are not only a problem generally in our country but also, a problem in Florida specifically, which is why retaining an experienced foreclosure defense attorney is so important.
Florida Foreclosure Laws in Florida
The foreclosure process can be confusing, so it’s important for you to understand when and how a foreclosure can occur. Ultimately, the process, in general, must begin with a missed payment because a foreclosure cannot occur if your payments are up to date.
What is the 120 Day Rule in a Florida Foreclosure?
Pursuant to 12 C.F.R. § 1024.41, most mortgage lenders are prohibited from initiating a foreclosure proceeding before a borrower is more than 120 days delinquent on their mortgage. However, if a mortgage lender is initiating a foreclosure because you violated a “due-on-sale” clause, i.e. a clause in your mortgage contract requiring you to pay off the mortgage at the time you sell your home, or is joining a foreclosure action that has been initiated by a superior lienholder, than the lender will not have to wait for you to be delinquent for 120 days.
How does a Foreclosure get Started in Florida?
Florida, like many states, requires an entity or individual seeking to foreclose on a piece of property to obtain a court order. This is known as a judicial foreclosure. As such, a foreclosure is legally initiated by the filing of a complaint. Fla. Stat. § 702.015 indicates what specifically must be contained within the complaint and what, in terms of documentation, must be filed with the complaint. The complaint would then be served on you by a process server or sheriff. Like other defendant’s, Florida Rule of Civil Procedure 1.140 provides that you have 20 days to respond to the complaint with what is called an Answer, and in it, you must allege any affirmative defenses, i.e. a defense that would allow you to prevail even if the mortgage holder proved their case entirely, you can pursuant to Florida Rule of Civil Procedure 1.110. This step, of course, is important because if you fail to raise an affirmative defense, the defense is considered waived pursuant to Florida Rule of Civil Procedure 1.110(d)-(e). As you can see, handling a foreclosure defense takes both skill and legal knowledge, and it is rules like these that demonstrate how easily a mistake can really damage your ability to defend against a foreclosure, which is why hiring an experienced foreclosure defense attorney in Brooksville, FL is always advisable.
Will There be a Jury Trial in a Florida Foreclosure Case?
Fla. Stat. § 702.01 provides that “[a]ll mortgages shall be foreclosed in equity. . . . The foreclosure claim shall, if tried, be tried to the court without a jury.” Thus, foreclosure actions in Florida are tried by a judge, not a jury, and moreover, the statute further indicates that “[i]n a mortgage foreclosure action, the court shall sever for separate trial all counterclaims against the foreclosing mortgagee.” Consequently, if you have an independent claim against the holder of the mortgage, your claim will be severed and tried separately from the foreclosure claim.
Can I Pay Off the Mortgage Prior to the Foreclosure?
Paying off a mortgage prior to a sale due to foreclosure is referred to as the “right of redemption.” Fla. Stat. § 45.0315 provides that “[a]t any time before the later of the filing of a certificate of sale by the clerk of the court or the time specified in the judgment, order, or decree of foreclosure, the mortgagor or the holder of any subordinate interest may cure the mortgagor’s indebtedness and prevent a foreclosure sale by paying the amount of moneys specified in the judgment, order, or decree of foreclosure . . . .” Moreover, a circuit judge has the power to “rescind, vacate, and set aside a decree of foreclosure of a mortgage of property at any time before the sale thereof has been actually made pursuant to the terms of such decree,” so just because a foreclosure has been initiated or a decree of foreclosure has been issued does not mean that all of your legal options have been exhausted.
Can a Mortgage Holder Foreclose on Two Pieces of Property in Different Counties?
The short answer to this question is yes they can. Fla. Stat. § 702.04 establishes that “[w]hen a mortgage includes lands . . . lying in two or more counties, it may be foreclosed in any one of said counties, and all proceedings shall be had in that county as if all the mortgaged land . . . lay therein . . . .” So, what this means is that a mortgage holder of a mortgage involving two pieces of land located in separate counties only needs to file in one of the counties where one of the pieces of land is located in order to foreclose on both pieces of land simultaneously.
Foreclosure Defense Attorney in Brooksville, FL
As all of the rules regarding a foreclosure proceeding demonstrate, the foreclosure process is quick, confusing, and very rule specific, so it’s important for you to have the assistance of an experienced foreclosure defense attorney who can advise you concerning both your legal rights and the appropriate legal strategy you should employ in your unique scenario. At the Peck Law Firm, P.A., our foreclosure defense attorney has been helping clients just like you for years and is ready to begin working on your defense today, so call the Peck Law Firm, P.A. now to find out how a Brooksville foreclosure defense attorney can help you.
