Florida Foreclosure
Procedure
Your time is very limited.
Use the following foreclosure process explanation to develop a
plan of action with well-timed, well-informed steps. By doing this
together we can stop the foreclosure process and save your home!
The Process
In Florida, mortgages must
be foreclosed by filing a lawsuit in court. As in any lawsuit, the
borrower must be served with notice of the lawsuit and must be given an
opportunity to appear and defend his or her rights. The lender will try
to show that the borrower is in default, and that foreclosure is
therefore necessary under Florida equity law. Florida is unusual in that
the legislature has passed very few statues regulating foreclosures.
Most of the law on the subject of foreclosures in Florida is found
scattered in dozens of cases. The basic statue, chapter 702.01 reads as
follows:
All mortgages shall be
foreclosed in equity. In a mortgage foreclosure action, the court shall
set for separate trial all counterclaims against the foreclosing
mortgage. The foreclosure claim shall, if tried, be tried to the court
without a jury.
Counterclaims by a
borrower may be tried by a jury, but they must be tried separately from
the main foreclosure lawsuit.
In Florida because the
lawsuit to foreclose on a borrower is a suit in equity, it is impossible
to obtain an injunction to stop what is, in essence, a court ordered
sale. In addition, the court can order the sale at a low price. A sale
can be set aside if there is an error in the procedure to foreclose;
however, it cannot be set aside due to the low sale price. The court
order commanding foreclosure will specify how the foreclosure must take
place, and the foreclosure must take place on those terms.
After the sale takes
place, the sale terms must be confirmed by the court that ordered the
sale. If the terms of the sale order are met, title in the buyer’s name
can become complete by filing a certificate of title. At the discretion
of the court, junior lien holders can redeem the property, up to the
time of the confirmation of the sale. The equity of redemption is cut
off when the sale is confirmed, but it exists prior to that time, which
means the borrower can save the property from foreclosure by coming up
with the money before confirmation.
Deficiency
A separate action for a
deficiency must be filed within four years after the foreclosure sale.
