(written by Jonathan Paul, Associate Attorney)
This is the first in a series of blog posts addressing the progression of the Florida foreclosure process. These entries are broad and general in nature, and will not apply to each and every case.
I have undertaken the defense of several hundred mortgage foreclosure actions, and they all invariably start in the same fashion: payments are missed on the promissory note and mortgage, throwing the homeowner behind on the loan.
Many times a borrower will even be advised by a bank representative to fall behind if they want to be evaluated for a loan modification, deed in lieu, or short sale. It is important to take that representative’s name, number, extension, and employee identification number (if one exists) down for later use. Also be sure to note the time and date of the call, and phone number. It is entirely likely that the person to whom you, the borrower, spoke has absolutely no authority to bind the lender to anything – so you should keep that in mind when deciding whether or not to default on the mortgage based on the representative’s advice.
If you do decide to default, or already have defaulted, the trip down the road to a possible mortgage foreclosure action has begun. It almost goes without saying, no one wants to put their home, their family, and themselves into a situation like this, but in many cases it is a decision to either pay the mortgage or keep the lights on and mouths fed. Obviously the latter is more important for day to day life, so a default on the mortgage may be necessity for some. If you have already cut the cable bill, reduced the electric bill, stopped spending on unnecessary goods, then the only thing left is the mortgage bill which continues to remain out of your financial reach.
Let me say that the reason you go behind on the mortgage payments is largely irrelevant from a legal perspective. An obligation to pay the bill exists by contract, and as a result, if that obligation is not met, you face the reality of a law suit if the matter is not otherwise resolved.
It is possible that a foreclosure lawsuit would be filed quickly after a period of default, or it could take many months, possibly years. Seeking loss mitigation following the default on a mortgage payment may have the effect of delaying the filing, but each lender behaves differently, and sometimes each lender does not behave the same for all of their loans.
Many lenders will tell borrowers that they are “in foreclosure” before the lawsuit is filed. This typically means that the lender has sent it to a foreclosure law firm, and it is being handled in house by a loss mitigation group – it does not necessarily mean you have been foreclosed upon.
In Florida, foreclosure can only occur by way of a judicial proceeding. Like any other lawsuit, you must be adequately served with the summons and lawsuit. It is the filing of this suit, in my opinion, that gives rise to the foreclosure.
Come back for details as to what to do once a foreclosure lawsuit is filed against you.
If you need help with your foreclosure, please call (407) 749-0080 or contact us.