Florida Foreclosure, Part Two: Florida’s Foreclosure Process

In this installment of our three-part foreclosure series, we will have a high-level discussion of what to expect once you have reached the stage of foreclosure in Florida. Each state has its own unique processes and timelines, and knowing what to expect from the Florida court system as you move forward in your foreclosure action will empower you to strategize your next steps.

When Does a Florida Foreclosure Start?

As you are likely well aware, every state has different laws. However, the states are bound to be compliant to any existing federal law. Federal law applies to each of the states. What this dynamic means at the end of the day, for our purposes, is that Florida has molded their foreclosure laws and processes to be in compliance with Federal Law and requirements.

The federal law generally requires a foreclosure servicer to wait until a mortgage loan is over 120 days overdue before they are able to officially begin the foreclosure process. However, you should be aware that there are exceptions to this rule. For example, a foreclosure action may begin sooner if you have violated a due-on-sale clause in your contract, or if the foreclosure servicer is joining in on a foreclosure action of a superior or subordinate lienholder.  See 12 C.F.R. § 1024.41 (link in the sources section) for specific language.

State Foreclosure Laws in Florida 

Approximately half of all states, including Florida, require a mortgage lender to file an official lawsuit in order to pursue a foreclosure.

Judicial Foreclosure in Florida 

To begin the foreclosure process the mortgage lender files the official suit with the court. The lender is then required to give the mortgage holder notice of the suit and serve you with a court summons and complaint. Once you have received these notices you generally have twenty days to prepare and file an answer to the suit with the court. If you fail to provide this answer, the lender can ask the court to grant a default judgment. Essentially, this means that they will likely request authority to hold a foreclosure sale, and the court will likely agree.

If the mortgage holder does successfully respond to the lawsuit, then the case will be slated to go through litigation. Mortgage holders should be prepared for the possibility that if a case proceeds to this stage, the lender may file a request for summary judgment by the court. A summary judgment request petitions to the court that they grant judgment in favor of the party submitting the request. In order for the request to be granted, the petitioner must successfully argue to the court that there is no dispute about any critical aspects of the case at hand. If the court determines that it will grant summary judgment, or if the mortgage holder otherwise loses at trial, the judge will generally order that the property or home in question be sold in a foreclosure sale.

Faster Foreclosure Process in Florida

 Readers should also be aware that Florida has an expedited process for dealing with uncontested foreclosure actions, or other such cases in which a homeowner has no real defense to the allegations.

Public Notice of Foreclosure Sale 

The mortgage lender is required to publish notice of the foreclosure in a local newspaper once a week for at least two consecutive weeks, with the final notice being posted at least five days prior to the sale of the property. See Fla. Stat. § 45.031 for specific language.

The Foreclosure Sale

The foreclosure process concludes with the completion of the foreclosure sale. The sale must take place between 20 to 35 days after the judgment date, unless another timeline is specified by the court. You should expect that the sale will be conducted as an auction where both the general public and the lender are free to bid on the property. The home will be sold to the highest bidder at the sale.

Contact Suncoast Civil Law 

For a consultation on your own foreclosure or eviction case, contact the experienced Sarasota foreclosure defense lawyers at Suncoast Civil Law.

Sources:

ecfr.gov/current/title-12/chapter-X/part-1024

wmnf.org/florida-second-in-nation-for-eviction-and-foreclosure-moves/