The Foreclosure Process in the State of Florida

In Florida, lenders may foreclose on a mortgage in default by using the judicial

foreclosure process. This is commenced by filing a lawsuit in the Circuit Court in
the county where the property being foreclosed is located. Again, this is
a judicial process – there is not a non-judicial foreclosure process in the State of
Florida (non-judicial would be similar to California; there they just take your
house).

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. The Florida legislature has passed very few
statues regulating foreclosures. The legislature’s mortgage foreclosure effort may
be viewed Florida Statutes, Chapter 702.01, which is the statutory scheme that
regulates mortgage foreclosures in Florida. Most of the law on the subject of
foreclosures in Florida is found within cases that have been decided before
Florida’s judges. Some of the highlights of both the Florida Statutes and judicial
decisions are set forth as follows:

• An Equitable Action. In Florida, all mortgages shall be foreclosed in

equity, not at law. This means that the foreclosure claim shall be tried to a
judge – Florida residents are not entitled to a jury trial in a mortgage
foreclosure action. As such, if any counter-claims are filed by the
borrower-homeowner, the court shall server for separate trial all
counterclaims against the foreclosing mortgage. The foreclosure claim
shall, be tried before the court without a jury. Counterclaims brought by a
borrower-homeowner may be tried to a jury, but they must be
triedseparately from the main foreclosure lawsuit.

• No Injunctive Relief for Borrower-Homeowner. In Florida,

because the lawsuit to foreclose on a borrower is a suit in equity, it is
impossible to obtain an injunction to stop a court ordered sale. A sale can
be set aside if there is an error in the procedure to foreclose. The sale,
however, cannot be set aside due to a 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.
Pre-Foreclosure Timeline.

• Mortgage and Note. When you purchased your home you signed many
documents at closing. Two of those documents were the Mortgage and the
Note. The Mortgage pledges the property as security for the debt which is
owed to the bank. The debt is determined pursuant to the terms of the
Note. In other words, the Note is basically your promise to pay. The
Mortgage is the tool the bank uses to take back the property in the event
you do not pay.

• The Notice of Default. As a borrower, you have promised to make your

mortgage payments, pay your taxes and insurance, and pay your
homeowner association fees. If you fail to do so, pursuant to the terms of
the Note and Mortgage, your lender may declare you in default of your
Mortgage. Declaring that you are in default is the beginning of the
foreclosure process.

• Disputing the Validity of the Debt.

• Opportunity to Cure.

Foreclosure Litigation Timeline

• The Filing of the Lis Pendens. The first legal action taken by the
lender is to file a Lis Pendens at the county courthouse. The term "Lis
Pendens" means “litigation pending” and puts the public on notice that a
law suit has been filed against you. Your lender has declared you in
default and is demanding that the note be paid in full immediately. The
Clerk of Court records the Lis Pendens in the Public Records and then you
are served with a Summons, commencing the lawsuit against you and
giving you time to Answer.

• The Summons and Service of Process (10 to 20 days). After the

Lis Pendens and Complaint have been filed, a process server (typically a
County Sheriff) will deliver to you a copy of the Complaint filed against
you, the Lis Pendens and the Summons. The Summons is the document
that details your rights and responsibilities associated with the lawsuit that
has just been filed against your for breach of contract (promissory note)
and the Mortgage Foreclosure. It is not advisable to “hide” from the
 Sheriff. There are alternative ways that the lender may obtain sufficient
service of process other than handing it to you (i.e., publication in local
paper after diligent search).

• The Answer (20 days). In response to the Lis Pendens and the
Complaint, you have 20 days from receipt of your Summons to file your
Answer with the Clerk of the Circuit Court. An Answer is a legally
sufficient response to the allegations that have been alleged against you in
the Complaint. An Answer is not "I've been laid off from work and cannot
make my payments." In the lender's (and Court’s) eyes, this is an
insufficient excuse and does not justify your lack of payment. Instead, an
Answer might be, "I never had a mortgage with this lender. They have
confused me with someone else." Alternatively, “I have made all my
payments and am not in Default” would also be an adequate answer and
potential defense. It is an opportunity to show why you shouldn't be
foreclosed upon.

And Answer may be filed by you or by your Attorney. If you file an Answer
(and it is usually a good idea to do so) a hearing date is set. At the hearing
the lender's attorney will be present and you may tell the judge the reason
for your Default. By filing an Answer, you have insured that a Clerk’s
Default and a Default Judgment will not be entered against you without an
opportunity to be heard.

• The Preliminary Hearing. You may present your case at the hearing
and the judge will decide what to do next. If you have a valid Answer, the
judge may require the lender to give you a reasonable amount of time to
work things out. If you simply haven't made your payments, however, the
judge will rule in favor of the lender and the foreclosure will go forward.

The good thing about the hearing is that it sometimes takes some extra
time to be scheduled. And, let's say you are trying to use a short sale to
save your credit, this extra time may be important.

If you do not file an Answer within the 20 day period or if the judge rules
against you at the hearing and doesn't allow you more time, the lender's
attorney will file a Motion for a Summary Judgment Hearing. This is
another hearing which will be scheduled before the judge. It could take
 place in a few days or weeks depending on how busy the judge is and how
aggressively the Lender's attorney acts.

• The Summary Judgment Hearing (45 days). At the Summary

Judgment hearing, the Lender's attorney will present the case against you.
You may give testimony if you are present to try and create dispute as to a
material fact in the case. Mort times than not, providing proof of payment
is the alleged defense that would provide you the greatest likelihood for
success at this hearing. Without such evidence, the judge will most likely
rule against you and find you in default of the mortgage and will grant the
lender the right to foreclose the Mortgage and sell your property. The Final
Summary Judgment will show the amount you owe the lender including
principal, interest, attorney fees, expense, and court costs.

• Foreclosure Sale Date (75 days). After Final Summary Judgment is

entered, next the Judge will set a foreclosure sale date which is usually 30-
45 days after the entry of the Judgment. This is when the property will be
sold on the Courthouse steps. This date is sometimes extended due to legal
holidays or by agreement of your lender.

• Redemption by Junior Lien Holders. 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.

• Judicial Sale, Advertisement and Certificate of Title. The court

order of foreclosure will specify how the foreclosure must take place, and
the foreclosure must take place consistent with those terms. Whenever a
legal advertisement, publication, or notice relating to a foreclosure
proceeding is required to be placed in a newspaper, it is the responsibility
of the lender or their representative to place such advertisement,
publication, or notice. 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.
• Deficiency Judgment. The lender may sue to obtain a deficiency
judgment in Florida. A separate action for a deficiency must be filed
within four years after the foreclosure sale.