Notice of Default: When a borrower is significantly late on payments (usually 60- 90 days), the lender will provide the borrower with a Notice of Default. This notice will declare that you are in default and demand payment for the amounts owed.
Lis Pendens: A Lis Pendens is a legal document which is filed with the Clerk of the Court and recorded in the Public Records of the county where the property is located. A Lis Pendens acts to put the world on notice that a lawsuit has been filed.
Service of Process: Following the recordation of a Complaint and the Lis Pendens, you will be served by a process server. The process server will give you a copy of the Complaint, the Lis Pendens, and a Summons. Please note that there is no benefit to trying to dodge a process server. Service can be effectuated by publication as well as by other means, you cannot hide from a lawsuit.
Response: Once you have been served with the above mentioned paperwork, you have twenty (20) days to file a responsive pleading with the court.
IMPORTANT: If you do not respond to the Complaint, the lender can move for a Default to be entered against you. Two examples of responsive pleadings include a Motion to Dismiss and an Answer. At this point an attorney may want to conduct discovery or file other motions as needed.
Summary Judgment: A Summary Judgment Hearing occurs at the end of a foreclosure suit. At this hearing the lender is requesting that the judge order a Final Summary Judgment and set a date for the sale of the Defendant’s real estate. In the 12th Circuit of Florida, foreclosure sales are conducted online in lieu of the courthouse steps.
Deficiency: In the very likely event that a Defendant’s property does not sell for enough money to cover the outstanding note and mortgage, the lender may file suit for remainder owed, this is what is known as a deficiency.
HOW WILL HIRING AN ATTORNEY HELP?
A foreclosure attorney will review all documents filed by the lender. Moreover, a foreclosure attorney will often file discovery motions which request additional documentation from the lender. A foreclosure attorney will respond to the Complaint (responsive pleadings). These Responsive Pleadings will slow down the foreclosure process and put the lender on notice that you are not willing to give up easily; thereby making it easier negotiate with the lender. Every foreclosure is different. After reviewing your documents a foreclosure attorney can help decide the best course of action for you.
Option 2: Loan Modification: Despite the media hype, a favorable loan modification is difficult to obtain. The offers presented by most lenders are unsatisfactory resolution for borrowers facing a foreclosure. A borrower will often need to defend the foreclosure lawsuit in order to have the time necessary to negotiate a loan modification.
Option 3: Deed in Lieu of Foreclosure: A deed in lieu of foreclosure is a fancy way of expressing that a borrower will voluntarily give the property back to the lender in exchange for the lender cancelling the mortgage and ending the foreclosure suit. As painless as a deed in lieu sounds, that is not always the case. Many times the lender will refuse to give up its right to seek a deficiency judgment against the borrower. It is advisable to have an attorney review a Deed in Lieu of Foreclosure Agreement in order to advise you of any rights retained/not given up by the lender. The general requirements to qualify for a deed in lieu are that the borrower has suffered a hardship, other options have been exhausted, the subject property has been on the real estate market for some substantial amount of time, and that the property is free of other liens. A borrower will often need to defend the foreclosure lawsuit in order to have the time necessary to negotiate a deed in lieu.
NOTICE: The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements.
