Being served with a foreclosure lawsuit can be a frightening thing to face. Everyone has heard of or knows of people who have been removed from their homes by the Sheriff due to a bank foreclosure. When your lender sues your first thoughts are that you might be next. Don’t be scared. You have come to the right place! Contact a firm that will aggressively fight for your rights against the bank with the goal of dismissing the lawsuit.
With the right help facing foreclosure is a problem that has a solution. Benjamin Law Practice has helped countless homeowners all over Florida to beat their foreclosure and save their homes at a very affordable cost.
Foreclosure Process in Florida
Florida is a judicial foreclosure state which means that if a lender wants to foreclose on a mortgage it has to institute legal proceedings in the Circuit Court of the county where the property is located. However, before your lender can have the clerk of courts auction off your home they have to comply with several requirements.
- Missed payment: Once you miss your first mortgage payment your lender will probably start contacting you via telephone and mail to understand why you missed a payment and offer you loss mitigation options. At the same time, once you miss a payment your lender will start imposing late fees on the past due amount. This is usually one of the best times to reach out for help, whether directly to your bank or to an experienced attorney.
- Notice of Default & Acceleration: If you are unable to bring your loan current and fall over 90 days behind your lender will have the right to consider you in default of your finance agreement and will send you a letter stating their intention to accelerate the promissory note. This is an important step in the foreclosure process and is called a condition precedent. If the lender does not send you this letter or if they wrongfully send it to another location, we can help dismiss the foreclosure case.
- Filing a Foreclosure Lawsuit: In order to start the judicial foreclosure process, your lender has to file a foreclosure complaint against you in the circuit court of the county where your property is located. Along with the filing of the complaint, your lender will record a lis pendens in the public records of the same county, giving notice to all that there is litigation pending against the property. For the Court to obtain jurisdiction over you and for your lender to be able to move the case forward, your lender has to serve you with a copy of the complaint. Your lender will hire a process server who will go to your home, identify himself as a process server and give one or more copies of the summons and complaint. It is common for lenders to include tenants, spouses or anyone else they think might have an interest in the property as named defendants to the lawsuit, even if they have nothing to do with the mortgage.
Once you are served with the complaint you have 20 days to respond to it by filing an answer with the court. It is critical you do not miss this deadline as failure to timely respond can lead to a judicial default being entered against you which amounts to you forfeiting your right to defend the foreclosure. While many people may attempt to defend themselves, it is unlikely you will be familiar enough with Florida’s Rules of Civil Procedure and with foreclosure law in Florida to be able to mount a real defense against your lender and their team of attorneys. We have seen this first-hand many times in court. At this point it is critical you contact an experienced foreclosure litigation attorney. Your attorney will be able to review the complaint filed against you and determine what are the appropriate procedural steps to take and what affirmative defenses are available to you.
- Foreclosure Litigation: In their rush to repossess properties and get non-performing loans off their books, many lenders do not pay close attention to the detailed requirements Florida law imposes on them to be able to foreclosure. What this means for homeowners is that often times there will be several effective defenses you can raise against your bank’s efforts to take away your home. An effective lawyer will be able to identify these issues and raise them with the court, either in a Motion to Dismiss, getting rid of the case before it even really starts, or through an Answer and Affirmative Defenses. Through the discovery process, your lawyer can demand documents and other relevant information from your lender that can help in substantiating the defenses raised and can serve as evidence of your lender’s improper actions. If this is the case, we are not afraid to litigate the case all the way to trial with the hope of dismissing the case.
By aggressively litigating a foreclosure lawsuit, you not only prevent your bank from being able to quickly take your home, but you can substantially increase your leverage when it is time to negotiate a settlement. Another great advantage of having a lawyer who will litigate for you is that you will be able to continue living in your home while the litigation unfolds, or you will be able to continue collecting rent from your tenants if this is an investment property.
On of the most common ways to save your home while aggressively litigating the foreclosure case is by a loan modification. At Benjamin Law Practice, PLLC, we have helped countless homeowners in Florida work through the often frustrating process of getting a loan modification.
Most lenders want to avoid foreclosures and would rather have a performing loan. However, without an experienced attorney by your side, it can be difficult to obtain a loan modification along with a modification with proper rates. Getting the most out of your modification the first time around can not only save you time and money, but accepting a modification means you have less option in the future should you need to modify your loan again. It is critical to get it right the first time. Furthermore, often times when you accept a modification your lender will ask you to sign a series of documents where they might ask you to waive certain rights or claims you might have against your lender. It is important to have an experienced attorney review and explain any documents you sign that will alter the rights and obligations of your mortgage.
Short Sale/Deed-In Lieu
If your goal is not to keep your property, either because the property is no longer affordable or even desirable for the homeowner, Benjamin Law Practice can help you with non-retention options and get you out of your mortgage and note without personal liability on the loan and potentially up to $10,000 for relocation assistance. In addition, If the property is not worth more than you owe on the loan, then the lender could sue you for a deficiency claim after they obtain a foreclosure. The best outcomes generally arise out of aggressive litigation which creates leverage against the lender. Benjamin Law Practice has secured countless deficiency waivers and thousands of dollars in relocation assistance for homeowners in this situation.
Is Benjamin Law Practice, PLLC the Right Choice for You?
At Benjamin Law Practice, we offer an initial free consultation and go over your case with you and answer any questions you might have. We will make an assessment of where you stand and give you our best advice as to what your options and chances of success are. If after our initial meeting you are comfortable moving forward with us, and we think you have a case we can help, we will immediately begin working with you to develop a customized, individualized plan that best fits your needs and goals.
Through our comprehensive foreclosure defense and loss mitigation approach, we have assisted countless homeowners all over Florida in saving their home. We have stopped hundreds of foreclosures and dismissed many cases over the years. We have also negotiated settlements with all major banks and servicers, saving our clients hundreds of thousands of dollars and their homes. The proven results speak for themselves. Let us put our experience to work for you with aggressive and trustworthy representation at an affordable cost!