In the state of Florida, lenders must resort to pursuing foreclosure litigation in Coral Gables through the court system. Lenders can file a lawsuit with the circuit court in Miami-Dade County. Lenders wield no right to take repossession of a home until they obtain what we call a judgment of foreclosure, in addition to a writ of possession from the court.
Before a foreclosure begins, the papers that loan borrower’s sign at a real estate closing establishes the basis for the rights and defenses they possess during foreclosure litigation in Coral Gables.
The most important document in these closing papers is a promissory note. A promissory note is a contract which will outline and impose the terms for the borrower repaying the money they own to a bank or mortgage lender. This will typically contain a clause that enables the lender to reclaim the property and sell it if the borrower fails to make their payments.
When borrowers fail to pay, the lender must declare them in default in regard to this contract. The lender’s legal representation can issue a document by mail called a Notice of Default. A lender will demand immediate payment through this method.
Under the Fair Debt Collection Practices Act or FDCPA enables borrowers to dispute the validity of the mortgage debt. When a borrower demands a lender to verify a debt, the lender then must cease any and all collection activities until they can provide this evidence.
In any issue related to foreclosure litigation in Coral Gables, an attorney that possesses the necessary training, education, and experience is crucial to a positive outcome from either side of the litigation room. Read on to learn more about how a legal professional can help.
Information on Florida Foreclosures
In Florida, the foreclosure process remains regulated by the judicial division of the court. This means that a mortgage lender or bank must file their lawsuit in state court.
A lender’s attorney can initiate foreclosure litigation in Coral Gables by filing a complaint with the Clerk of Court and serving papers on the borrower. These papers will also contain a court summons that provides the borrower with 20 days to file an answer.
If the borrower does not respond to the complaint by the deadline, the lender can then ask the court for a default judgment. This enables the lender to seek a judgment in their favor, and in most cases, the legal system proceeds as if the borrower had no defense at all.
Alternatively, the borrower may issue a response. In this instance, the lender cannot attain a default judgment. However, they may file a motion for summary judgment. Unless the lender can offer evidence or a counterclaim that justifies their nonpayment, the lender will likely win this motion. Then, the court will make their final judgment of foreclosure.
However, a judge could still deny the summary judgment motion if the borrower can provide a legitimate defense to foreclosure litigation in Coral Gables. If this occurs, the case will proceed to the discovery phase and likely a trial. Should a borrower lose at trial, this will result in a final judgment of foreclosure as well.
Foreclosure Sales and Deficiency Judgments
At a foreclosure sale, the lender will sell off the property to the highest bidder at auction. In the state of Florida, lenders may then seek a deficiency judgment as a part of the foreclosure action. They must initiate this process within one year, starting on the day after the court clerk issues a certificate of title at the foreclosure sale.
A deficiency judgment is an unsecured money judgment against a borrower when a mortgage foreclosure sale did not produce sufficient enough funds to repay the total of their promissory note. This leaves the borrower on the hook for the remaining difference between the fair market value for the home versus what the home actually sold for.
Information on Foreclosure Litigation in Coral Gables form the Law Offices of Paul A. Humbert, P.L.
For anyone pursuing or threatened by foreclosure litigation in Coral Gables, you need legal assistance. However, not any attorney will do as proper representation in a foreclosure situation. Lenders and borrowers alike must seek an experienced, knowledgeable legal firm with the tact and creativity to ensure everything goes as well as possible.
To learn more about what our firm at the Law Offices of Paul A. Humbert, P.L. can provide in a foreclosure situation, contact us today!
- “Eleventh Judicial Circuit of Florida.” https://www.jud11.flcourts.org/. Accessed 17 Feb. 2020.
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- “Defaulting on a loan – The Balance.” https://www.thebalance.com/what-happens-when-you-default-on-a-loan-315393. Accessed 17 Feb. 2020.
- “Notice of default Definition | Bankrate.com.” https://www.bankrate.com/glossary/n/notice-of-default/. Accessed 17 Feb. 2020.
- “Fair Debt Collection Practices Act (FDCPA) – Investopedia.” 17 Sep. 2019, https://www.investopedia.com/terms/f/fair-debt-collection-practices-act-fdcpa.asp. Accessed 17 Feb. 2020.
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- “After the Foreclosure: Deficiency Judgments and Taxes | Nolo.” https://www.nolo.com/legal-encyclopedia/after-the-foreclosure-deficiency-judgments-taxes. Accessed 17 Feb. 2020.