Foreclosures in Florida

What is Foreclosute?

Foreclosure is the equitable proceeding in which a bank or other secured creditor sells or repossesses a parcel of real property (immovable property) due to the owner's failure to comply with an agreement between the lender and borrower called a "mortgage" or "deed of trust". Commonly, the violation of the mortgage is a default in payment of a promissory note, secured by a lien on the property. When the process is complete, it is typically said that "the lender has foreclosed its mortgage or lien."

Foreclosure involves a lawsuit in which a bank, mortgage company, or other creditor seeks to take an owner's property to satisfy a debt. The bank or lender may actually take the property, or have the property sold to pay off the debt. As a result of the foreclosure, the owner loses whatever rights he or she had in the property.

Examples: If a homeowner fails to pay his or her mortgage loan on time, the lender that holds the mortgage on the house can bring a foreclosure action against the homeowner. Similarly, if a homeowner borrows money from a bank using a house as collateral (security) and fails to pay, the homeowner can lose the house to the bank in a foreclosure action.

Foreclosure is a court process, and you must follow the process carefully to protect your rights.

The rights talked about in this pamphlet are very complex. Please do not use this pamphlet without checking with a lawyer.

NOTE: If you have a VA, HUD, FmHA or FHA insured mortgage, you may have additional rights in a foreclosure. These rights are not discussed in this pamphlet. You should consult a real estate lawyer as soon as possible.

Strict Foreclosure or Foreclosure by Sale?

If you do not have any defenses to the foreclosure, you must decide whether you would be better off in a strict foreclosure or in a foreclosure by sale. Generally, if you do not tell the court which type of foreclosure you would like, the court will order a strict foreclosure.

If you want a foreclosure by sale, you should now file a Motion for Foreclosure by Sale with the clerk and send a copy of the motion to the lawyers in the lawsuit.

A hearing will be scheduled where you will need to explain to the judge why you want a foreclosure by sale. The judge will probably want to know if the property is worth more than the total debt. Total debt includes more than just the balance of the mortgage. It also includes such items as the court and marshal’s fees for filing the foreclosure action; attorney’s fees paid by the bank; the cost of a title search by the bank; the cost of an appraisal by the bank; all the accumulated interest on the mortgage, plus the unpaid principal; and the costs associated with auctioning off the property, including several appraisals, advertising, and hiring people to conduct the auction.

This information tells the judge whether or not there is any Equity in the property.

Do I Have Options to Avoid Foreclosure?

Defending against foreclosure is complex and can be expensive. You must evaluate your options carefully, keeping in mind that you may end up responsible for additional legal and appraisal fees. This section will outline some of your options.

The rights talked about here are very complex. Please do not use this information without checking with a lawyer.

If You Have a VA, HUD, FmHA or FHA Insured Mortgage...
You may have additional rights in a foreclosure. These rights are not discussed in this pamphlet. You should consult a lawyer as soon as possible.

1. Selling the Mortgaged Property

2. Seeking Financial Advice

3. Emergency Mortgage Assistance Program

4. Eviction/Foreclosure Intervention Program

5. Deed in Lieu of Foreclosure

6. Court Protection in Unemployment and Underemployment Cases