Being Well Informed
When you develop a definite plan of action with well-timed, well-informed steps, you can stop the foreclosure process
and save your home. We have outlined the foreclosure process for the state of Florida.
The Foreclosure 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 statutes regulating foreclosures.
Most of the law on the subject of foreclosures in Florida is found scattered in dozens of cases. The basic statute, chapter
702.01 reads as follows:
Chapter 702.01 Florida Statue
All mortgages shall be foreclosed in equity. In a mortgage foreclosure action, the court shall sever for separate
trial all counterclaims against the foreclosing mortgage. The foreclosure claim shall, if tried, be tried by 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.
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