Jacksonville Foreclosure Defense Attorney Matthew C. Bothwell, Esq. Can Help Save Your Home
If you are facing foreclosure on your home or property Jacksonville’s debt relief lawyer, Matthew C. Bothwell, Esq., offers foreclosure defense that can help save your home, keep the banks honest and allow you time to refinance your mortgage. Banks and lenders hire high priced lawyers to protect their interests who will use the intricacies of the legal system against you to take your home or property. Matthew C. Bothwell, P.A. and our foreclosure defense team is here to protect you, help level the playing field against the banks and keep you in your home.
The Foreclosure Defense Process
As a general rule there are three steps to the foreclosure defense process (Pre-Suit, Legal Action, and Foreclosure Sale).
Step I: Pre-Suit. The period of time between your default on your mortgage or note and the bank filing a foreclosure action is the most important time in any foreclosure proceeding. Because it is generally not in the bank’s best interest to bring a foreclosure suit against you, lenders will typically send you notice of your default and try to resolve mortgage deficiency before filing a foreclosure case. Most banks now have programs in place to assist homeowners refinance or restructure mortgage loans and the Federal government has enacted various assistance programs that can also help people stay in their homes through mortgage modification. If you are actively involved in a mortgage modification the bank should not bring a foreclosure action against you. If it does you may have cause to stay or stop the foreclosure case until the modification process is complete, you reject the banks modification offer or the bank determines that you are not qualified for a loan modification.
Step II: The Foreclosure Lawsuit. The legal foreclosure process on homes or property begins with the lender/bank filing a Complaint with the court seeking to foreclose the mortgage and call the promissory note. Because the foreclosure Complaint seeks possession of real property, a Notice of Lis Pendens must also be filed and recorded in the public record, placing all interested parties on notice of the foreclosure action.
In Florida, actions involving foreclosures must be filed with the court and resolved through a judicial proceeding. There are no non-judicial foreclosures in Florida. Should a foreclosure action go to trial, the finder of fact will be the judge. There is no right to jury trial in Florida foreclosure actions. However, any counterclaims for damages against the bank brought by the homeowner can be bifurcated from the original foreclosure action and may be tried by jury.
Respond to the Foreclosure Complaint. Upon filing the Complaint, the Clerk of Court will issue a summons that is typically served on the homeowner in person along with the Complaint and other paperwork filed with the court instituting the foreclosure proceeding. The homeowner then has 20 days to respond the Complaint, either asking that the banks claims be clarified, dismissed, or filing an answer admitting or denying each paragraph of the Complaint. If no response is filed, the bank/lender may request that the court enter a default judgment against you, denying you many foreclosure defenses you may have to save your home.
When you answer the complaint you should also assert affirmative defenses to the bank’s foreclosure claim. Affirmative defenses are statements made by you challenging the bank’s case and asserting why it is not entitled to foreclosure as a matter of law. While every foreclosure case is different, common affirmative foreclosure defenses are:
- Standing – Asserting that the plaintiff named in the law suit does not have the legal right to assert the claim against you.
- Lack of Notice – The lack of notice defense is used when the mortgage or note relied upon by the bank in bringing the foreclosure required notice to you, the property owner, prior to filing suit and the bank did not provide this notice.
- Failure to Satisfy Conditions Precedent to Filing – The bank may be required to do certain things before it can bring the foreclosure case such as giving you notice of the default or advising you of your right to seek a modification. The bank’s failure to comply with conditions precedent stated in the note or mortgage should be asserted as an affirmative defense.
- Improper Charges – To keep the bank honest it is important to review the mortgage and note on which the bank relies in bringing its foreclosure case and ensure that they are not attempting to collect improper fees or interest in excess of what is allowed by contract. Any improper actions of the bank should be raised by affirmative defense.
Each foreclosure action is unique and all of the affirmative defense listed above may not be available to you or you may have additional defenses not discussed. If you have questions regarding foreclosure or foreclosure defenses Jacksonville’s debt relief lawyer, Matthew C. Bothwell, Esq., is here to help. Please give us a call to schedule your FREE CONSULTATION.
Serve Discovery – After filing a response to the foreclosure complaint it is important to serve discovery on the bank. This is done through a Request to Produce that requires the bank produce certain documents relevant to the case, Interrogatories requiring the bank to answer questions under oath regarding their claims and, in some cases, requesting that the bank admit or deny certain statements through Requests for Admissions. You also have the ability to depose the bank’s representatives under oath and ask them questions about their foreclosure claims.
Foreclosure Trial. After the discovery phase the court will schedule trial or the bank will file Motion for Summary Judgment and set it for hearing. If you responded to the Complaint and asserted proper affirmative defenses it is likely that your the case will go to trial and the bank will not seek to foreclose through summary judgment. At trial the bank will call a representative who will testify on its behalf regarding your liability on the note and mortgage, your default and the amount remaining due. The bank’s witness will be a professional who, in many cases, travels the state testifying for the bank in numerous foreclosure actions each week. You will have an opportunity to question the banks representative at trial and present your own witnesses in support of your affirmative defenses.
If the court finds that the bank has proven its case the judge will enter a Final Judgment of Foreclosure determining how much you owe on the note or mortgage and setting a foreclosure sale date typically 60 to 120 days after the trial date.
Redemption of Mortgage. Please note that at any time before the foreclosure sale of your home you have the option to redeem the mortgage by paying all amounts due. If you can redeem the mortgage, even after Final Judgment, you will save your home from foreclosure sale.
Step III – Foreclosure sale. If there are no viable defenses, no settlement could be reached to refinance the property and you are not able to redeem it, a Final Judgment will be entered by the court which will direct the sale of your home or property at foreclosure auction. This sale will auctions off your home to the highest bidder for a price that is usually less than the actual value of the home and far less than the remainder of the mortgage.
If the foreclosure sale or auction does not result in a sale price that will satisfy the remainder of the mortgage, the lender may bring a separate action against you seeking a deficiency judgment. The deficiency judgment will hold the anyone who executed the note personally liable for the remainder owned on the note/mortgage and will allow the judgment holder to garnish non-exempt wages, seize non-exempt property and claim income tax returns until the judgment is satisfied or discharged in bankruptcy. The bank or lender has one (1) year from the date of the foreclosure sale to bring an action against the homeowner seeking a deficiency judgment or its claim will be waived.
Bankruptcy and Foreclosure
Bankruptcy automatically stops foreclosure proceedings and can help save your home. When you filed bankruptcy all pending collection efforts, including foreclosure cases, are automatically stayed. This may buy you time to negotiation a refinance option with the bank, although most banks will not refinance while your bankruptcy is pending. If you file a chapter 13 bankruptcy you may be able to catch up on all past due arrears or money owed to the bank on your mortgage over a period of three (3) to five (5) years. Mortgage refinance mediation is offered through the chapter 13 bankruptcy court and can also assist in saving your home. If you have questions regarding bankruptcy and mortgage refinance Jacksonville’s debt relief lawyer, Matthew C. Bothwell, Esq., is here to help. Please call us to schedule your FREE CONSULTATION.
Refinance Your Mortgage
With millions of properties nationwide are engaged in the foreclosure process, banks are being forced to absorb huge losses and, as a result, are more and more willing to work with you. While not everyone will qualify to refinance their mortgage, the banks are loosening up lending restrictions and refinance is becoming a viable option for many. The refinance process can be burdensome and requires work on your part but in the end, it is worth it to save your home.
Jacksonville’s debt relief lawyer, Matthew C. Bothwell, Esq., is here to help you navigate the complex foreclosure process, offer you foreclosure defense against the banks, and negotiate and possibly save your credit and your home. We are here to help defend your interests in court and ensure that you are not manipulated or taken advantage of by the billion dollar banks and their high priced lawyers. Please contact us today to schedule your FREE CONSULTATION.
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