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Foreclosure by power of sale is not allowed in Florida

Homeowners might be interested to learn about a type of foreclosure that is not legal in Florida. Available in 29 states, foreclosure by power of sale allows a mortgage holder to bypass the court system when selling a foreclosed property. Unlike foreclosure by judicial sale, foreclosure by power of sale does not involve the oversight of a judge.

Foreclosure by power of sale accomplishes the same outcome as foreclosure by judicial sale, but it is generally a faster process. Before the property can be sold, the mortgage lender must provide notice about the sale. This may be done through a newspaper advertisement, but some states also require the mortgage lender to personally notify the homeowner as well. When the property is sold, proceeds go to the mortgage holder first and then to the lien holders and the mortgagor.

There have been some arguments that foreclosure by power of sale violates the Fourteenth Amendment of the U.S. Constitution. Opponents of foreclosure by power of sale say that the procedure does not provide the notices and hearings that are required under the Fourteenth Amendment. However, courts have rejected this argument, saying that the Fourteenth Amendment cannot be invoked in response to private foreclosures because they do not involve public officials.

A homeowner who has received notice about a pending foreclosure on their property may not be aware of all of the legal requirements for foreclosure in their jurisdiction. Speaking with an attorney may be a good to way to determine whether the mortgage lender is breaking any federal or state laws. If the mortgage lender does not have the right to foreclose, an attorney may assist the homeowner in disputing the proposed action.

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