Gainesville Foreclosure Defense Lawyer’s Overview
As early as possible after you have gone into default on your mortgage payments, contact us at The Law Offices of Justin McMurray, P.A. for a free initial consultation with a Gainesville foreclosure defense lawyer. We have more than a decade of experience and we a prepared to guide you throughout the entire process of foreclosure. What you must know is that it is nearly always in your best interests to fight a foreclosure, and it is often possible to win, provided that you take action early in the case. To better prepare you for what to expect, here is a brief overview of the process:
Default and Filing of Action
Once you have defaulted on your mortgage, the bank will normally send you a notice of default and warn you that they will move forward to foreclose on the property unless you “cure” the mortgage by catching up on the missed payments. If you cannot satisfy this demand before the deadline, normally within 30 days, the lender will go to court to file a foreclosure action against you. This includes filing a lis pendens, which is a public notice of their intent to foreclose. You will then be served with a complaint and summons to appear in court, and unless you file an answer it is likely that you will automatically lose the case to a default judgment under the 20-day rule.
Fighting the Case in Court
The answer to the complaint will outline your response and defense to the lawsuit, such as that you are not in default, that you have been the victim of predatory lending, or that the bank does not actually have a lien on your property. In most cases, the bank will then file a motion for summary judgment, which is a request to have the judge rule in their favor without any further action based on the merits of the case. The court will hold a hearing to determine whether to grant the judgment, but it may take as long as five months before this occurs. At the hearing, the defense attorney will generally attempt to defeat the case by placing the burden of proof on the plaintiff and making it difficult to establish that the bank has a right to foreclose.
Right of Redemption
In the event that the lender wins a foreclosure judgment, the case will move forward to a foreclosure sale, the date of which may be anywhere from 30 days to several months later. The homeowner has a right of redemption after the foreclosure judgment, so he or she may still cure the mortgage at any time before the date of sale. Even then there is a ten-day window in which to prove that the bank violated the terms of the court orders for foreclosure, but after this period the title will be transferred to the new owner and the case will be closed. It is important to note that Florida state law allows the lender to sue the borrower for the deficiency on the loan in the event that the sale proceeds are insufficient to satisfy the remaining mortgage balance.
Is this really how it ends?
This is how many foreclosures turn out, but yours does not have to follow the same course. In addition to fighting the case using proven foreclosure defense strategies in court, it may be possible to avoid foreclosure entirely by negotiating a loan modification, short sale or deed in lieu, or by declaring Chapter 7 or Chapter 13 bankruptcy. Learn about your options and take the first steps in stopping foreclosure by contacting us now for a free case evaluation.