One must go to court to foreclose its mortgage. The Lender institutes proceedings by filing a lawsuit with the aid of foreclosure defense lawyers. The Lender has no right to acquire your home until a judgment of foreclosure is obtained from the court.
Before the foreclosure:
Documents borrowers sign at closing form the grounds for many of the rights and defenses in a foreclosure. The most important is the mortgage and the promissory Note,which stipulates the terms for repaying money borrowed. The lease allows the Bank to take back your property and sell failure to make payments on the Note.
The following documents must be available:
Notice of Default: when a borrower fails to pay, the Bank must declare you default under the Note. This document is known as a Notice of Default and is usually delivered by mail.
Dispute son the Validity of Debt: a borrower has an obligation under the Fair Debt Collection Practices Act (FDCPA) to contest the validity of this mortgage debt.Immediately borrower demands the Lender verify the debt, and the Lender must stop all collection actions until the debt is verified.
The Summons, Complaint, and Lis Penden: Accompanied by a Foreclosure Lawsuit After receipt of the Notice of Default. A foreclosure begins by filing a summons,Complaint, and lis pendens with the Clerk of Court. Every borrower must make the Bank prove its case. One Must Act Within 20 Days or You May Waive Powerful Defenses
A“Lis Pendens” notifies the masses on notice that a foreclosure has been set against one’s property. The Clerk of Court will write down the Lis Pendens in the Public Records, which will appear in any title report. The Complaint states that the Bank declares you in default and demands a foreclosure judgment unless the Note is repaid in full.
Service of Process
Immediately foreclosure is filed, a process server will hand-deliver you the Summons and acopy of the Complaint and Lis Pendens.
Motion to dismiss
A helpful defense strategy to adapt is to present the court with a motion to dismiss the lender's Complaint. There are different legal and procedural grounds which may be raised. Helps question whether the Bank can produce the Note and necessary paperwork to foreclose.
An Answer is the first opportunity to bring up your response to the Complaint and any defenses you may raise.
Parties to the lawsuit have the right to conduct discovery. You may ask for documents,question witnesses, and require answers to questions under oath. Used to develop facts
The Lender’s attorney brings forth affidavits which establish the Bank’s case against you. The borrower must provide sworn statements of its own. Should the Judge find questions of fact existing from the affidavits, the Motion should be denied. If the court grants the Motion, it will enter a Final Summary Judgment that states the exact amount you owe, including principal, interest, Florida foreclosure defense attorney fees,expenses, and court costs. When a final judgment is entered, the Clerk of Court sets a sale date. This is usually takes 35 to 120 days from the date the report is opened.
The final judgment of foreclosure specifies ways in which the foreclosure should take place, in the manner outlined in the report. It is the lender's responsibility to place a legal advertisement, publication, or notice of the foreclosure sale in a local newspaper. After the sale takes place, the court's sale terms must be confirmed that ordered the sale.
In undertaking this process, one should consider having a foreclosure defense attorney/lawyer.