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Florida Law: Florida is a judicial state; therefore the court is the only entity with the power to take the Borrower's property away from him/her and only he/she is provided the opportunity to defend his/her case in court.
Florida law does not require the Lender to notify the Borrower before beginning the foreclosure process, however, the language of the mortgage may stipulate this. Florida law, however, gives the Borrower the right to stop the foreclosure procedure at any time right up to the moment of the sale of the property by allowing him/her to pay the total amount to the Lender.
Need To Retain A Lawyer: Without the help of a lawyer, the foreclosure process can take around 5 months, depending on how busy the judicial docket is and how aggressive the Lender's attorney acts. Having a lawyer on this process is extremely important since a lawyer can delay the entering of the final judgment, giving the Borrower more time to find an alternate solution (loan modification, short sale, deed in lieu, bankruptcy). In addition, a lawyer protects the homeowner from groundless rulings and judgments entered by the court, and requested by the Plaintiff, made in the haste of wanting to move forward with their judicial foreclosure docket.
Foreclosure Process Starts: The foreclosure process typically starts after the Borrower is at least 90 days past due. The Lender will hire an attorney to start the Foreclosure with the Courts. The foreclosure process begins when the Lender records the lis pendens (document putting the public on notice that a lawsuit has been filed against the Borrower) with the county and files the complaint with the court.
Borrower Is Put On Notice: The Borrower will be served with the lawsuit documents (summons, lis pendens, and complaint) and from that point on, he will be given a limited number of days to respond (20 days or 30 days). Hiding from the server to avoid being personally served will not protect the Borrower from being sued since Florida law allows for alternative ways to serve the Defendant.
Need to Answer: The Borrower, now the Defendant, should contact a lawyer to prepare a solid response that attacks the complaint and includes legal defenses. A mere letter explaining to the court why the Borrower fell behind with the payments (called otherwise a "hardship letter") does not contain legal grounds to defend the case and facilitates the procedure for the Lender, now the Plaintiff.
If the Defendant, fails to answer within the given time, he is exposing himself to a Default Judgment, which once entered removes the Defendant's right to defend his case (unless the Default is set aside, a process that requires certain grounds that a lawyer can explain).
Motion for Summary Judgment: Once the Plaintiff believes it has followed through the required the mandatory steps to build its case, it will try to close the case and have a judgment entered on its favor by filing and setting for hearing the Motion for Summary Judgment.
At the hearing for the Plaintiff's Motion for Summary Judgment, the total amount owed by the Borrower to the Lender (which includes the amount of the principal owed, interest, added fees, court costs, and Plaintiff's attorneys fees) and the sale date can be established and entered in the record.
Foreclosure Sale: In Florida, the judges usually set the date for at least 30 days after entering the final judgment. At that point, the Plaintiff will publish the notice for the public auction with the time, date, and location of the sale. For two weeks before, the notice of sale is published once a week.
The public auction is usually overseen by the clerk, and normally takes place at the court house. Any individual or entity can purchase the home at this public sale, including the Mortgage Company. If the winning bidder is not able to pay the fully bid amount by the end of that day, a new sale date will be set. A certificate of sale is given to the winning bidder and ten days after the sale, if the sale has not been challenged, a certificate of title will be given to the winning bidder. This certificate of title is the official document transferring ownership to the new buyer.
After the certificate of sale is issued to the new owner, the new owner has the right to evict the current occupants of the property.
Deficiency Judgment: This is the difference from the amount owed to the Lender and the amount collected from the foreclosure sale for which the Borrower is now responsible. In Florida, the Lender must file a separate action for a deficiency judgment within the following 5 years after the foreclosure sale.
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