The 3 Types of Foreclosure

The Types of Foreclosure

Types of Foreclosure

When people hear the word “foreclosure” they may not realize that there are multiple types. Each type of foreclosure has its own set of procedures and tends to favor one side (lender or borrower) over the other. The three types of foreclosure are judicial, non-judicial and strict foreclosure. In this article, we will describe each one.

Judicial: The form of foreclosure that most people are familiar with, judicial foreclosure is the process in which a court orders the sale of a property in order to satisfy a mortgage. The lender files a lawsuit against the homeowner and a formal notification is made. The homeowner is given a set amount of time to pay their debt. If they do not pay it, the property is sold at an auction and the proceeds from the sale are used to pay off the mortgage and any lien holders. This process is long and doesn’t provide a particular advantage for either party. Judicial foreclosures costs the lender and prevents them from gaining revenue while the process takes place. For homeowners, being sued and having an official notice appear on your property can be demoralizing. Foreclosures, in general, also damages your credit tremendously. A great alternative to a judicial foreclose is a deed in lieu. With a deed in lieu, the homeowner formally returns the property to the lender. If the lender accepts the property, no legal action takes place and your credit record is not damaged.

Non-Judicial: If your mortgage has a power of sale clause or if you are in a state in which a deed of trust is used instead of a mortgage, the lender has to right to foreclose on property without the approval of a court. As with judicial foreclosure, a formal notification is made, but the window of time before a property is sold may be shorter. This process presents an advantage to lender because it takes less time and money to foreclose on a property. The borrower has less time to resolve their debt and potentially keep their home.

Strict Foreclosure: Strict foreclosures are less common than judicial and non-judicial foreclosures. In a strict foreclosure, the lender seeks a court order to seize property from a homeowner. Once approved, the homeowner is given a set period of time to resolve the debt. If they are unable to do so, the property returns to the lender who is free to do with it as they choose. While it’s not much of an advantage for the homeowner, at least they have a designated time to pay their debt before losing their home.

Foreclosure is an emotional and financially difficult process to endure. The smartest choice you can make is finding a foreclosure lawyer that understands the process and can help you make sound choices for your future. The foreclosure attorneys at McIntyre Thanasides Bringgold Elliott Grimaldi & Guito, P.A. provide a wealth of experience and an ability to look at your individual situation, provide sound analysis and determine a proper solution. Contact them today at 844-511-4800.

Rules for Foreclosure Amended by Florida Supreme Court

The Florida Supreme Court recently amended several of the Florida Rules of Civil Procedure relating to mortgage foreclosures. The amended and new rules with forms are in response to recent legislation regarding mortgage foreclosure actions. Chapter 2013-173, Laws of Florida, created a new section 702.015. This statutory provision sets forth new pleading requirements for mortgage foreclosure complaints and is intended to “expedite the foreclosure process by ensuring initial disclosure of plaintiff’s status and the facts supporting that status, thereby ensuring the availability of documents necessary to prosecution of the case.” Following this statutory change, Rule 1.110(b) has been modified to remove certain language specific to mortgage foreclosures, and Rule 1.115 has been created to address specific pleading requirements for mortgage foreclosures. The changes became effective December 11, 2014.

The new Rule 1.115 calls for more specific details to the complaint regarding the factual basis of which the plaintiff, or claimant, is entitled to with respect to enforcing the note. The claimant also must file a certification with the filing of the claim for relief for foreclosure to show the claimant is in possession of the original promissory note. If the claimant is seeking to enforce a lost, destroyed, or stolen instrument, the claimant is required to execute under penalty of perjury an affidavit setting forth a detailed chain of endorsements, transfers, or assignments of the note and providing the appropriate facts to show that the claimant is entitled to enforce such document.

In addition to speaking to your attorneys from Mergl and Wenger, Attorneys at Law , it is advised you read the amended and new rules and forms in their entirety.

Below are several highlights of the amendments:

  • Rule 1.110(b) – the verification language was removed from this rule and incorporated in new Rule 1.115
  • Rule 1.115 –a new rule created that provides initial pleading requirements in mortgage foreclosure cases (covers claims for relief, delegated claim for relief, possession of original promissory note, and lost, destroyed or stolen instrument)
  • Forms 1.944(a) and (b) – complaint forms that were revised in order to detail the plaintiffs’ standing. One new addition includes an “Affidavit of Compliance.”
  • Form 1.944(c) and (d) – the “Motion for Order to Show Cause” and “Order to Show Cause” forms were incorporated for compliance with section 702.10(1), Fla. Stat. (2013)
  • Form 1.996(a) – the “Final Judgment of Foreclosure” form was revised to add titles, update the statutory reference regarding time for right of redemption, and includes a new paragraph on attorneys’ fees
  • Form 1.996(b) – a new form entitled “Final Judgment of Foreclosure for Reestablishment of Lost Note” which is intended for use when a lost promissory note is re-established by a foreclosure judgment

These additions and revisions make significant changes to the rules and forms affecting foreclosures, and you will most certainly want to review them carefully if you are involved with foreclosure lawsuits. It is essential to work with a qualified foreclosure attorney throughout the process. Contact us today for a consultation and to review how the amendments can impact your current foreclosure situation.

Zombie Foreclosures Continue to Haunt Florida

One in five homes in the foreclosure process are zombies, according to RealtyTrac which says that Florida leads the list with roughly 55,000 homes that are abandoned by their owners and in a state of legal limbo.  Despite economic recovery in much of the nation, the foreclosure issue is not going away any time soon.  What do zombies mean if you are looking to list your property?  Most likely if there is one on your street, you will not be able to sell your home.  If you do, you’ll get much less than you were hoping for due to the proximity of the zombie foreclosure.  Zombie foreclosures not only lower property values of surrounding homes, but they also lead to lost property tax revenue – a double whammy for anyone considering listing a real estate property. You can also get more information from attorneys for family law claims.

RealtyTrac’s most recent data on zombie foreclosures also reported that about 21 percent of the 141,406 total foreclosures reported in Q2 were of the zombie variety.  What makes a foreclosure a zombie?  This type of foreclosure occurs when a lender goes through all the steps of a foreclosure, but fails to complete the last step of registering the deed to move title from the borrower to the lender.  The owner then deserts the property leaving it abandoned which leads to an unkempt eyesore, making the surrounding properties less appealing. If you want to know how to stage your house for a fast sell, with the help of a real estate agent, click here.

One of the reasons that Florida is on the top of this list is because it is a judicial foreclosure state.  That means that in order to foreclose on a property a bank must go through the court process which takes a long time.   While new laws set out to protect borrowers and prevent servicers from reacting to foreclosures at the same rate they typically would, there are other ways service providers can provide assistance to borrowers while working directly with their business partners to prevent such a high vacancy rate.

Working with a qualified lawyer is the first step you should take if you are facing a foreclosure or currently involved in one.  A well informed homeowner can be counseled by a foreclosure attorney who can provide guidance in terms of what options are available to you and communicate with involved parties to find the best resolution and reduce the time period of the foreclosure sale right of redemption.  In some cases, this time period can be shortened from six months to as little as 30 days.

Servicers may also work directly with a lawyer who will contact the borrower.  For example, when a company has made an attempt to serve the borrower papers and finds the property to be vacant, they are often times legally required to search for the borrower.   This process will not eliminate zombie foreclosures, but does help expedite the foreclosure or proceed to workout.  By enlisting the help of an attorney from the start, you can be proactive and address the issue before vacancies increase and prevent zombie foreclosures from spreading.

If you find you are the victim of a zombie foreclosure, there may be a number of remedies available to you. Contact the Tampa foreclosure attorneys at McIntyre Thanasides Bringgold Elliott Grimaldi & Guito, P.A. today.

Foreclosure Overview

In Florida, the process of a foreclosure is controlled by the Florida Statutes. Foreclosure is a legal process a mortgage holder uses to obtain both legal title and possession of the property. When the lender (Mortgagee) loans money to the borrower (Mortgagor) there are many documents which are executed. The two main documents are the Promissory Note and the Mortgage. The Promissory Note contains a promise to pay at a certain rate and under specified terms. The mortgage instrument is a document which allows the lender to seek foreclosure if certain defaults occur. In Florida, this process is done through the Courts.

Different mortgage companies handle delinquencies differently but once you default on your mortgage the lender will retain a law firm and file a foreclosure action. A Complaint is filed with the Court which spells out all the preliminary information and the nature of your default. That Complaint will be served on you by a process server. Once you receive the Complaint and Summons you will have twenty days in which to file your legal response. If you do not file any response, a default will be entered by the Clerk. This Default is a certification from the Clerk to the Judge that you have not filed a response and in essence, you admit the default which is contained in the Complaint.

Despite the Foreclosure Complaint, you have many opportunities to save your home. Among the choices are restructuring or ‘Loan Modification’, a negotiated reinstatement or a Chapter 13 Bankruptcy. Loan Modifications are possible under a wide variety of circumstances. Some of these include the lender reducing the amount of the principal balance owed and thus a reduction in the payments. A Negotiated reinstatement is a process where you make an arrangement to pay the delinquency and attendant court costs and continue on with your mortgage payments as if no default had occurred. Chapter 13 is a bankruptcy process where you can do one of several things to save the home from foreclosure. A loan Modification can be negotiated as part of your Chapter 13, this may include a reduction of the principal balance and a corresponding reduction in payments.

All of your options are complex and critical and given the complexity and importance of saving your home, you would be well advised to seek and obtain legal counsel for any of these foreclosure alternatives. Just because you are delinquent and you have received ‘legal papers’ seeking to foreclose on your home, it is not too late to save your home. The most important part of this process is not to sit on your rights and remedies. If your mortgage is in arrears, you would be well advised to seek experienced legal counsel and explore what solution is best for your situation.

Mortgage Foreclosure Deficiencies

When you buy a home with mortgage funds, you sign two primary documents, the Promissory Note and the Mortgage Instrument. The Note is the promise to pay the financed amount under certain terms. The Mortgage is a document that allows the lender, under certain events of default (non-payment, waste, non-payment of property taxes, etc) to seek foreclosure to recover both possession and legal title to the property. When the lender actually does complete a foreclosure, the property is sold on the courthouse steps by the Clerk of the Court to the highest bidder. More often than not, the buyer is the mortgage lender. Often times the sales price is far less than the balance owed. The Lender is permitted by Contract (The Mortgage) and by Statute to ask the Court for a Deficiency Judgment against the borrowers for the amount between the fair market value at the time of the sale and the balance owed. The fair market value is the value which a willing buyer would pay a willing seller in an arm’s length transaction.

The lender currently has a five year statute of limitations to ask the Court for a Deficiency. This five year period may be reduced in the future as part of a Bill pending in Florida but it is currently five years. The deficiency is dischargeable in a bankruptcy and can often be negotiated away as part of a negotiated foreclosure result.

Some consumers chose to fight the application for the deficiency on the basis of disputing the lender’s valuation of the property at the time of the sale. That type of litigation is expensive and largely unnecessary with the variety of ways to resolve a mortgage default and foreclosure. Disputes over determining the value of property are complicated because real estate valuation is hardly a science but falls in the realm of experts and expert opinions.

If you have a mortgage delinquency or a pending foreclosure you need to consult with experienced counsel who can explore and help you navigate through the many remedies available to avoid an adverse result in a foreclosure where the lender seeks a deficiency. As complicated as it sounds, all of these types of problems are manageable with good advice and legal counsel so you understand your rights and remedies as they develop and make the best, most prudent decisions possible.

Foreclosures in Florida rise in October

After several months of declining, the number of Florida homes in foreclosure rose in October. Of the nation’s top 20 metro areas, two Florida cities, Tampa and Miami, shared the distinction of being the cities recording the highest rate of foreclosure. In Tampa one out of every 302 housing units had a foreclosure filing.

The rise in foreclosures is a result of a backlog of judicial foreclosures that are currently working their way through the system. Because of an increase in home prices throughout the state, lenders which may now be able to recover more for each property, are likely interested in moving foreclosed homes either via bank owned sales or foreclosure auctions. You can also contact experts from Big T Moving & Delivery to move your belongings from one place to another. The good news for residents of Florida is the increase may ultimately have a positive impact on the state’s real estate market, providing a supply of homes to it for interested buyers.

Few people want to lose their home to foreclosure. In most cases there are underlying financial issues that make it impossible for a homeowner to stay current with mortgage payments. These issues may include medical conditions that result in exorbitant bills or the loss of a job. Whatever the reason, many individuals facing foreclosure in Tampa may not know what to do. Depending on the situation it is possible that filing for personal bankruptcy may be an option.

Besides relieving debt, filing for bankruptcy under Chapter 7 or Chapter 13 has another benefit. It stops foreclosure proceedings providing a homeowner some breathing room. In addition, in some situations a bankruptcy may make it possible for homeowners to ultimately keep their home.

Everyone’s financial situation is different. Accordingly, for those considering filing for bankruptcy it is usually a good idea to consult a bankruptcy lawyer to determine one’s options.

Source: The Florida Current, “Foreclosure starts jump as Florida tops troubled home list again”, Gray Rohrer, Nov. 14, 2013

Could filing for bankruptcy allow you to keep your Home?

Residents of the state of Florida are likely well aware of the role the state has played in the nation’s foreclosure crisis. As the real estate market has improved throughout the country, the state of Florida has seen improvement as well. This is illustrated, at least in part, by the reduction in foreclosures the state is experiencing. Over the course of the last two years, the number of active foreclosures that have occurred in the state has dramatically fallen from 550,000 to 277,000.

Despite the decrease in the number of foreclosures occurring in the state of Florida, the number is still significant. It is high enough that Florida ranks first in the nation when it comes to foreclosures. According to CoreLogic, the number of foreclosures that were completed in the 12 month period ending in January 2014 was twice as many as the next highest state.

It is fair to say that few residents of the state of Florida want to lose their homes to foreclosure. In most cases this situation arises as a result of financial distress the owner is experiencing. Those who are facing this situation may not realize that they may have options that could enable them to keep their homes. One of those options is to file for bankruptcy. The first step is to find a lawyer’s help filing for bankruptcy. An experienced lawyer can help with the procedures and explain legal complications.

A bankruptcy filing with lawyers help for chapter 13 bankruptcy immediately applies an automatic stay to any pending foreclosure actions. While the filing places a hold on that proceeding, the bankruptcy itself can provide a more long-term solution for keeping one’s home. For example, as a part of a Chapter 13 proceeding, the amount owed on a mortgage could be incorporated into a repayment plan. In this situation, at the close of the three to five year repayment period, in addition to being back on track financially, a filer could still have his or her home. It is likely that there are multiple residents of Florida who would be pleased with this outcome.You can check out expert commercial builders from Konnect Building Solutions here, for the best home addition.

Whether keeping one’s home is a possibility depends on a person’s specific circumstances. Because bankruptcy laws can be confusing and the average person filing for bankruptcy under Chapter 13 does not understand how to craft a repayment plan, most find it beneficial to work with a lawyer who handles such matters.

Source: Herald-Tribune, “Florida staying atop foreclosure ranking,” John Hielscher, Feb. 27, 2014