Frequently Asked Questions
Basics
I have just been served with a Summons and Foreclosure Complaint. What do I do?
Respond within 20 days of service. Unless you are familiar with legal proceedings and applicable law, it’s best to get an experienced and knowledgable lawyer, without delay.
If I do nothing, what will happen?
A Default and Default Judgement will be entered, and the Court will then auction your property.
After the property is auctioned by the Court Clerk, do I have to get out?
Yes.
How much time do I have?
As little as 12 days after the sale.
If I don’t move out, what will happen?
The Sheriff’s office will physically evict you and remove your personal effects.
Details
If my property is sold by the Court Clerk, what price will it fetch?
Usually much lower than Fair Market Value. Most of the time it is sold for the total amount of the mortgage, or less.
Will I get any of the sales proceeds?
It is rare. Only if there is a surplus (if the property is sold for more than what is owed).
If the property is sold for less than the total owed, can the lender collect the difference from me?
Yes, the Lender has the right to sue you for the shortfall, which is called a Deficiency Judgement and this is commonplace.
Legal Questions
What are Affirmative Defenses?
They are special defenses which must be specially alleged, such as truth-in-lending violations, usury, fraud and other specific types of improper conduct by the lender which may defeat or partially defeat the lenders claims
Why are Affirmative Defenses different that just an Answer with Denials?
The lender has a sufficiently more difficult burden to obtain a “fast” or Summary Judgement of Foreclosure. Plaintiff (lender) must do more than merely establish the case made by it’s complaint, it must also show that the Affirmative Defenses are not sufficient or applicable.
If I get a lawyer does he automatically get more time to file an answer?
No, the 20 days continues to run and, if a Default is taken against you, it will pose, at a minimum, difficulties in getting the Default set aside and allowing your attorney to use the defensive arsenal otherwise available on your behalf.
Legal Support
What can an experienced and knowledgable lawyer do?
Serve and file appropriate motions and demands and/or answer containing Affirmative Defenses appropriate to your case and utilize various methods of discovery.
Can I sell the property and get my money out?
Yes, you can sell or refinance so long as the Plaintiff is paid in full or accepts a short sale prior to the foreclosure sale.
Do I have the right to reinstate or bring the mortgage current?
No. Not unless your mortgage or note specifically gives you this right, however, many mortgage lenders often voluntarily consent to reinstatement.
Can I get the lender to modify the payment, the principal and / or the interest?
Lenders may have government programs, and their own programs, to modify the payment, the principal, the term and / or the interest. Because you are already in foreclosure, it is advisable to hire an experienced foreclosure defense attorney who is familiar with the legal process to obtain the most favorable terms for you.If you call our Firm you will speak with a Florida licensed attorney. Feel free to call us at 352-835-7977.