In Florida the foreclosure process is known as a judicial foreclosure. This means that once the homeowner is in default and goes into “foreclosure,” the home can be sold through the courts. This typically involves an auction process.
In other states the process is known as a non-judicial foreclosure and the home can be sold without going through the courts and the legal process. California uses this type of foreclosure.
But before the actual date of the auction there are many options for the homeowner. But we’re getting a little ahead of ourselves.
A foreclosure begins when the bank files a lawsuit stipulating that the homeowner is in default of some aspect of the loan agreement. This stage is known as Lis Pendens or suit pending. The homeowner must be notified in writing that legal action is pending. If the homeowner does not respond to this notification the court can make a judgement immediately and the home can be sold at a court supervised auction.
But if the homeowner responds within the specified time period (usually 20 days) then other options can be worked out. Perhaps the lender would be open to a loan modification of some kind. Remember, the bank wants to get their money and they don’t want to go through the legal process either. They can lose a lot of money. This is where having an attorney to negotiate with the lender can be very helpful.
If the mortgagee does not respond, then the court will file a Notice of Foreclosure Sale. This public document will include:
- Name, address and phone number of contact person
- Address of the property
- Legal description of the property
- Description of any improvements to the property
- Time and place of sale
- Specifics of the court and case title as it relates to that judgement
Florida law states that this Notice of Sale must be published in a local newspaper at least three consecutive weeks and not less that 5 days before the day of the auction. It is the responsibility of the lender’s attorney to make sure this notice is published in the newspaper. The law reads as such…
Florida foreclosure law states that the advertisement, publication, or notice shall be placed directly by the attorney for the petitioner, by the petitioner if acting pro se, or by the clerk of the court.
The Foreclosure Auction
In Florida the auction is usually scheduled 30 days after the foreclosure judgement by the court. The actual auction takes place at the courthouse, typically at 11:00 AM. The winning bidder must pay 5% of the sale price immediately and the balance is due by the end of the day. Once payment is made in full the court issues a Certificate of Sale and provides that to the winning bidder.
The Redemption Period
Florida law states that the mortgagee has the right to settle the default anytime before the sale date. This is called redeeming the property or redemption of the property. After the Certificate of Sale has been issued the homeowner loses this right of redemption. So again, it’s possible up to the last minute to avoid losing your home. The council of a knowledgeable foreclosure attorney can help you sort through your options up to the actual sale.
During the time frame before the actual judgement of the court the mortgagee has several rights…
- The may request an order to “show cause” for the foreclosure
- May request a hearing to present affidavits or other papers to dispute or explain the default
- Has the right to be heard in court to address the lawsuit
These and other technical legal proceedings are all available to the homeowner to defend themselves against the foreclosure process. A foreclosure attorney is your ally in these proceedings and during the foreclosure defense. Contact Brown & Associates so we can defend you against your foreclosure. We want to help!