It can happen to anyone. One day, you’re living the American Dream: you’re married, you have kids, and after years of scrimping, saving and sacrificing, you finally bought the dream home you always wanted in Fort Lauderdale, Florida. But then things change. You lose your job, your spouse is diagnosed with a life-threatening illness, or you are simply living beyond your means. The bills start piling up and you miss a mortgage payment… or two. And before you know it, the thing you’ve been dreading most becomes a reality – you’re beloved Fort Lauderdale home is being foreclosed.
The process begins when your lender demands full and immediate payment by sending legal paperwork called a Notice of Default. While this may be a scary experience, there is no need to panic. Instead, you should contact a qualified real estate or business attorney for advice as soon as possible.
This is because Florida law prevents a lender from taking your home without going to court. Specifically, the lender must seek a judgment of foreclosure and writ of possession by filing a lawsuit in Circuit Court in the county where the property is located.
Depending on the specific circumstances of your case, one of the first things your lawyer may advise is to exercise your right to challenge the legitimacy of the mortgage debt under the state and/or federal Fair Debt Collection Practices Act. Doing so will put a temporary stop to the collections until the debt is verified and give your attorney time to devise a strategy to save your home or minimize the financial repercussions stemming from a foreclosure.
If you’ve already been served with the foreclosure lawsuit, challenging the legitimacy of the debt may briefly put the case on hold. Once a case is filed, however, you will likely get personally served with the foreclosure lawsuit. This means you’ll get a summons, complaint and related documents, which will also be filed with the Clerk of Court. As stipulated in the summons, you will have 20 days in which to respond.
The worst thing you can do at this point is to ignore the summons. If you haven’t done so already, this would be a good time to seek legal advice. If you have retained a lawyer, he or she will examine the case and formulate a defense. The lawyer will also appear on your behalf in court so that you do not need to appear or file anything yourself.
Early in the foreclosure defense process, many Florida attorneys will file a motion to dismiss the foreclosure complaint for one or more legal reasons. This is a common tactic used by foreclosure defense lawyers because it gives homeowners a chance to win their case before the lender ever gets a chance to get a judgment in their favor. Other tactics include the use of various pre-trial motions, discovery requests, and/or depositions. These requests may require the lender to prove it has the actual mortgage note and other documents needed to foreclose on the property.
This is important because confirmation of lost or defective paperwork may make it harder for the lender to prove its case. It may also facilitate your appeal if the lender has somehow managed to secure a judgment without possessing certain documents or proving certain required evidentiary elements.
If applicable, your attorney will also state any affirmative defenses in the “answer,” or legal response to the complaint. In this document, your attorney must respond to each and every allegation in the foreclosure complaint, as well as make any applicable legal arguments constituting a defense to foreclosure. There are many procedural and statutory requirements that a lender must follow – the failure to follow these rules can constitute a valid defense to foreclosure and may even bar your lender from foreclosing.
During the discovery process, your lawyer can gather even more information to support your case. Much of it will come from the lender, which is legally required to provide relevant material at this time. The rest is often obtained through depositions – a process in which people who know about the circumstances of your case are questioned under oath outside of court – or through the responses to written questions, called interrogatories.
This series of events is collectively known as the pre-trial process. Many cases are resolved if the attorneys can reach an agreement or a complaint is dismissed during this time. If not, your case will go to trial, where each side will make legal arguments based on relevant arguments. Common arguments made by foreclosure defense lawyers in Florida are that the lender violated state or federal law; or that it failed to abide by court rules, called rules of civil procedure, associated with foreclosure cases.