Knowing the basics of Florida foreclosing law is the first step homeowners should take when they are considering foreclosure or being served with foreclosure papers. The following pertains only to residential properties, and it may help you to make the best decisions.
General Rules
By law, the homeowner (or borrower) has 20 days to respond to a foreclosure complaint. Also, the party that is foreclosing has to publish a notice in a newspaper for 2 consecutive weeks, and this must happen at least 5 days before the proposed sale date. A judge may refer the proceeding to a mediation authority if permitted by state law.
Any reinstatement of the loan before the sale of the property is not allowed unless it is permitted within the mortgage contract.
There are no extra or special protections for homeowners who are involved in high-cost loans (mortgages). However, redemption after the sale is allowed in all cases up till the date the court clerk actually files the certificate of sale.
Military service members have a few special protections. For instance, lenders cannot foreclose while the service member is on active service status or within 30 days of being discharged. This only applies if the service member took out the loan before he or she went on active duty. See Fla. Stat. Ann. §§ 250.5201 to 250.5205 for more details.
If the homeowner (or borrower) is served in person, the court may allow for deficiency judgments. If the property is an owner-occupied property the amount may not be more than the difference the fair market value of the home and the judgment amount (at the time of sale). Deficiency judgments must be filed within one year.
If there is a bankruptcy, a person may exempt up to $5,000 (for individual; $10,000 for married couple) in cash.
It is not always understood by borrowers that the eviction process is included in the foreclosing process. Also, the party bringing the foreclosure generally does not have to file a separate action for taking possession of the property once the sale takes place. All that is needed is for the foreclosing party to file a writ of possession. If the motion is allowed, the clerk issues the writ and the local sheriff will post it on the property. The borrower then has only 24 hours to vacate the property, taking whatever personal property legally belonging to them with them. If the borrower does not leave, the local sheriff will execute the order, which can mean forcible vacation measures.
The idea that borrowers can simply refuse to leave the property after the foreclosure sale is not true. The current laws make it mandatory for person’s to vacate the property once the writ of possession is implemented.
The above are only some of the important statues that affect foreclosures in Florida. It is very important to understand that foreclosing laws and statues vary from state to state so make sure you look into the rules that are applicable for your state. For those living in Florida, more details can be found in the state’s foreclosure statutes: Fla. Stat. Ann. §§ 702.01 through 702.11, 45.031 and 45.0315.
