Timelines - Florida Foreclosure
- The Notice of Default. Under your original Note and Mortgage, you, as the borrower, promised to make your mortgage payments and to pay your taxes, insurance and homeowner association fees. If you fail to do so, your lender may "declare" you in default. This is the beginning of the foreclosure process.
- Disputing the Validity of the Debt. As the Borrower, you have the opportunity to dispute the validity of the debt and/or the default, both of which should be done in writing to the lender at the earliest possible time.
- Opportunity to Cure. Pursuant to Florida law, you have the right to reinstate your Mortgage by tendering all of the arrearages due on the Mortgage prior to the Lender exercising its option to accelerate.
- Option to Accelerate. The terms of the mortgage usually include the lender's option to "accelerate" the mortgage upon a claimed default. This means that upon written notice to you, the lender can require you to pay the entire balance of the mortgage, not just the arrearages, in order to avoid the foreclosure. In most cases, your right to pay the arrearages and reinstate your mortgage terminates upon acceleration of the Mortgage. If the lender does not officially "accelerate" the mortgage by formal notice to you, the filing of the "Lis Pendens" may be interpreted by the Courts as a de facto notice of acceleration.
Foreclosure Litigation Timeline.
- The Filing of the Lis Pendens. The first legal action taken by the lender is to file a Lis Pendens at the county courthouse. The term "Lis Pendens" means “litigation pending” and puts the public on notice that a law suit has been filed against you. Your lender has declared you in default and is demanding that the note be paid in full immediately. The Clerk of Court records the Lis Pendens in the Public Records and then you are served with a Summons, commencing the lawsuit against you and giving you time to Answer.
- The Summons and Service of Process (10 to 20 days). After the Lis Pendens and Complaint have been filed, a process server (typically a County Sheriff) will deliver to you a copy of the Complaint filed against you, the Lis Pendens and the Summons.
- The Answer (20 days). Should you desire to contest the foreclosure, you generally have 20 days from receipt of your Summons to file your Answer with the Court. It is not advisable to attempt to file an answer without the assistance of an attorney.
- Default Judgment. If you do not file an answer within the 20 day deadline, a default judgment may be entered against you, thereby forfeiting your right to contest the foreclosure. Strategically, even if you are not sure you can or should contest the foreclosure, it is a good idea to seek legal assistance and file an answer. This will at least give you some time to consult with your attorney and consider your options.
- The Preliminary Hearing. If you do file an Answer, a hearing date is set. At the hearing the lender's attorney will be present and you may tell the judge the reason for your Default. You may present your case at the hearing and the judge will decide what to do next. If you have a valid Answer, the judge may require the lender to give you a reasonable amount of time to work things out. If you simply haven't made your payments, however, the judge will rule in favor of the lender and the foreclosure will go forward.
- The Summary Judgment Hearing (45 days). If you do not file an Answer within the 20 day period or if the judge rules against you at the hearing and doesn't allow you more time, the lender's attorney will file a Motion for a Summary Judgment Hearing. This is another hearing which will be scheduled before the judge. It could take place in a few days or weeks depending on how busy the judge is and how aggressively the Lender's attorney acts.
At the Summary Judgment hearing, the Lender's attorney will present the case against you. You may give testimony if you are present to try and create dispute as to a material fact in the case. More often than not, providing proof of payment is the alleged defense that would provide you the greatest likelihood for success at this hearing. Without such evidence, the judge will most likely rule against you and find you in default of the mortgage and will grant the lender the right to foreclose the Mortgage and sell your property. The Final Summary Judgment will show the amount you owe the lender including principal, interest, attorney fees, expense, and court costs.
- Foreclosure Sale Date (75 days). After Final Summary Judgment is entered, the Judge will set a foreclosure sale date which is usually 30-45 days after the entry of the Judgment. This is when the property will be sold on the Courthouse steps. This date is sometimes extended due to legal holidays or by agreement of your lender.
- Redemption by Junior Lien Holders. 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.
- Confirmation of Terms of Sale. The court order of foreclosure will specify how the foreclosure must take place, and the foreclosure must take place consistent with those terms. Whenever a legal advertisement, publication, or notice relating to a foreclosure proceeding is required to be placed in a newspaper, it is the responsibility of the lender or their representative to place such advertisement, publication, or notice. 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.
- Deficiency Judgment. The lender may sue to obtain a deficiency judgment in Florida. What this means if the foreclosure sale did not generate enough to cover the amount of the loan, the lender can still go after the borrower for the difference. A separate action for a deficiency must be filed within four years after the foreclosure sale.