Florida
When
you develop a definite plan of action with
well-timed, well-informed steps, you can stop
the foreclosure process and save your home. We
have outlined the foreclosure process for the
state of Florida.
The Process
In Florida, mortgages must be foreclosed by
filing a lawsuit in court. As in any lawsuit,
the borrower must be served with notice of the
lawsuit and must be given an opportunity to
appear and defend his or her rights. The lender
will try to show that the borrower is in
default, and that foreclosure is therefore
necessary under Florida equity law. Florida is
unusual in that the legislature has passed very
few statutes regulating foreclosures. Most of
the law on the subject of foreclosures in
Florida is found scattered in dozens of cases.
The basic statute, chapter 702.01 reads as
follows:
All mortgages shall be foreclosed in equity. In
a mortgage foreclosure action, the court shall
sever for separate trial all counterclaims
against the foreclosing mortgage. The
foreclosure claim shall, if tried, be tried by
the court without a jury.
Counterclaims by a borrower may be tried by a
jury, but they must be tried separately from the
main foreclosure lawsuit.
In Florida because the lawsuit to foreclose on a
borrower is a suit in equity, it is impossible
to obtain an injunction to stop what is, in
essence, a court ordered sale. In addition, the
court can order the sale at a low price. A sale
can be set aside if there is an error in the
procedure to foreclose; however, it cannot be
set aside due to the low sale price. The court
order commanding foreclosure will specify how
the foreclosure must take place, and the
foreclosure must take place on those terms.
After the sale takes place, the sale terms must
be confirmed by the court that ordered the sale.
If the terms of the sale order are met, title in
the buyer’s name can become complete by filing
a certificate of title. At the discretion of the
court, junior lien holders can redeem the
property, up to the time of the confirmation of
the sale. The equity of redemption is cut off
when the sale is confirmed, but it exists prior
to that time, which means the borrower can save
the property from foreclosure by coming up with
the money before confirmation.
Deficiency
A separate action for a deficiency must be filed
within four years after the foreclosure sale.
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