LOSS MITIGATION

loan modification 

Is your mortgage upside-down? Is the threat of foreclosure looming? At the Law Offices of Daryl L. Jones, we believe that the ideal solution for both you and the lender is for you to stay in your home and continue to make your mortgage payments. Of course, if your mortgage payments are no longer affordable, loan modification will be necessary. Our experienced and trusted loan modification attorneys in Miami are here to help with that complex process.

If you are behind on your mortgage payments, it may be time to consider whether a loan modification is the right option. A loan modification, if you are eligible, can help you avoid foreclosure and help put your life back on track. However, it is important to understand that a loan modification is not for everyone, and the details involving your particular situation should be discussed with a knowledgeable loan modification attorney in Miami. At the Law Offices of Daryl L. Jones, P.A., we can help you find the best solutions to your home and mortgage concerns.

A loan modification allows the lender to change the original terms of an existing loan if the borrower is eligible under certain circumstances and requirements. Modifying the terms of a mortgage loan can provide the borrower with financial relief. The terms and changes to a mortgage loan can be temporary or permanent, depending on the situation. Above all, approval of a loan modification can help a homeowner avoid foreclosure and help them keep their home. A homeowner does not necessarily need to be in default to qualify for a loan modification, but they must demonstrate that default is looming. In other words, the potential for default must be high in order to be eligible to apply for a modification.

loan modification eligibility

Not everyone who is in default or behind on payments is eligible for a loan modification. Loan modifications are mostly available to borrowers who are dealing with a hardship. The hardship usually deters the borrower from making adequate on-time monthly payments; thus, a modification can be feasible. A hardship can be loss of employment, illness or medical issues, death in the household, disability, or anything that affects paying your monthly commitment. It is highly recommended to seek the advice of a Miami loan modification attorney to verify eligibility and address any questions on how to apply.

loan modification options

A lender usually has an array of loan modification options available to their borrowers in case they fall under a hardship and are likely to default on payments or foreclose on their home. Not all options may be available to the borrower, but the most common loan modification options a borrower may qualify for include the following:

Principal Reduction: If approved for a principal reduction, the lender eliminates a portion of your loan. Therefore, a borrower would repay much less than initially borrowed. Getting approved for a principle reduction is extremely difficult, but it is done. You should consult a Miami loan modification attorney about the stipulations and requirements involving a principal reduction.


Lower Interest Rate: A lower interest can reduce your monthly payments, but it is important to understand the terms of your modification. Sometimes, a reduction in the interest rate is temporary.


Extended-term: The extended term option will extend the life of your loan. However, this can result in more interest payments since the life of the loan is longer.


Fixed-rate Loan: Under this option, your lender switches your loan from an adjustable-rate to a fixed-rate, saving you from unaffordable interest payments.


Postponed Payments: If you are unable to temporarily make payments, you may be able to postpone payments. The missed payments are usually added to the end of the loan.

Seeking professional help

If you have a complicated situation and/or do not understand the application process of a loan modification, it would be wise to consult with a loan modification attorney in Miami. Everyone’s situation is unique. A knowledgeable attorney can help you determine whether a loan modification is the best option, or if other measures are better suited for your needs. If a loan modification is the right path, your Miami loan modification attorney will help you throughout the process and make sure that all documents, forms, and requirements are properly submitted. Enlisting the assistance of a loan modification attorney in Miami to help you with your loan modification will significantly improve the approval of your application. At the Law Offices of Daryl L. Jones, P.A., we have years of experience with loan modification while helping clients keep their homes.

we know how to work with banks

Our law firm’s founder, Daryl L. Jones, is not only an experienced lawyer, a former Florida state senator, and a retired U.S. Air Force colonel who flew the F-4 Phantom II and F-16 Falcon fighter jets, but also a board member at a community bank. This is important because it means we know how banks work, and more importantly, we know how to work with banks.

Much of what our loan modification attorneys in Miami do is about packaging. We have created a business model that allows us to demonstrate to lenders that we are helping them retain a quality client. We make mortgage modification agreements a win-win proposition. Through our careful method, we have successfully reduced mortgage payments by hundreds of dollars a month. We have reduced the principal mortgage amount on many occasions. We have even helped people pay off second mortgages for pennies on the dollar.

We are well-versed in the Home Affordable Modification Program (HAMP). We also have an in-depth understanding of mortgage forbearance agreements and other options.

why you shouldn't do this yourself

Lenders are not eager to modify loans. On the surface, it means a financial loss for them. If they are willing to negotiate with you, they may not be willing to offer the best terms. If you are going to have your loan modified, you need to know that the new terms will truly be based on your income and ultimately help you stay in your home permanently.

Our lawyers work with banks every day. We know how to negotiate with banks to achieve substantial and noticeable modifications, not just minor changes.

 

REPAYMENT PLAN

 

REFINANCE

 

FORBEARANCE

Lenders are not eager to modify loans. On the surface, it means a financial loss for them. If they are willing to negotiate with you, they may not be willing to offer the best terms. If you are going to have your loan modified, you need to know that the new terms will truly be based on your income and ultimately help you stay in your home permanently.

Our lawyers work with banks every day. We know how to negotiate with banks to achieve substantial and noticeable modifications, not just minor changes.

Forbearance is not a long term solution

It is important to understand that mortgage forbearance is typically granted to homeowners faced with short-term financial difficulties. If your mortgage is upside-down and you cannot keep up with your payments, forbearance may not be a workable solution. You may need a permanent loan modification. Our lawyers know all of the available options and can guide you toward the one that is most appropriate based on your situation.

motion for extension of time

The Motion for Extension of Time is an application requesting the court to extend the time allowed to retain an attorney. As of the summons, you have 20 days to answer and retain counsel to defend your rights. By filing this Motion you can usually obtain an additional 45 days to find a lawyer to defend your case.

Click HERE to download a free copy of this extension.

 

CONVENTIONAL SALE

 

SHORT SALES

Hiring A Short Sale Attorney In Miami Is Important

If a real estate agent who is not a licensed attorney is giving you legal advice, it is against the law. Only a short sale attorney is able to provide legal advice, and the laws are constantly changing, especially when it comes to real estate. If you are considering a short sale, it is vital to hire a short sale attorney in Miami to help you with this complex process.

Hiring a short sale attorney will ensure that the homeowner is released from any personal liability after a short sale has occurred. Even if a short sale is approved and completed, if the homeowner is not careful, the lender may come back and legally garnish wages and bank accounts to recover the money. A short sale attorney can ensure that the short sale approval letter contains the verbiage that spells out that he or she is no longer liable and that the lender cannot pursue to recoup any money after the completion of a short sale.

A short sale attorney can also make sure that the homeowner’s assets are fully protected. Lenders evaluate all of the seller’s financial assets in order to determine whether they are able to recover part of the loss through disposable income, retirement funds, and stocks. A short sale attorney in Miami can help protect lenders and banks from liquidating a homeowner’s assets while a short sale is being considered.

At the Law Offices of Daryl L. Jones, P.A, we know that homeowners can benefit from a short sale if it is done right and legally. Consulting with a short sale attorney in Miami will prove invaluable and give you peace of mind.

Protecting You Against A Deficiency

The difference between the amount you owe to the bank and the home sale amount is referred to as a deficiency. Deficiencies can add up to tens of thousands of dollars. They are the biggest hazard in the short sale process. If the short sale is not handled correctly, the bank will have the right to come after you to collect the deficiency. The bank may not take action against you immediately, but rather wait until you have the money to pay back all or a portion of the deficiency.

When our attorneys handle short sales as a foreclosure alternative, we request that the bank agree to forgive the deficiency. We want to make certain that you can move forward with your life without this coming back to haunt you in the future.

Contact Our Foreclosure Attorneys
in Miami And Get Answers Today
 

DEED IN LIEU

A deed in lieu of foreclosure is when a homeowner turns a home over to the bank. The homeowner no longer has any obligations to repay any portion of what he or she owes: While this seems like a simple real estate transaction on the surface, it is important to have an experienced Miami foreclosure defense lawyer on your side to protect you.

Banks may not immediately agree to deeds in lieu of foreclosure. At the Law Offices of Daryl L. Jones, our Miami-based lawyers know how to work with banks to make them understand the benefits of accepting this option instead of foreclosing on the home. We will make certain you are protected as we guide you through this legal process.

Deeds In Lieu Of Foreclosure Vs. Short Sales

People frequently wonder whether a deed in lieu of foreclosure is better than a short sale. One of the biggest benefits of a deed in lieu of foreclosure is that there is no risk related to a deficiency; which means the bank will not be able to come after you for any money owed. However, with the help of a skilled Miami foreclosure defense attorney, that may not be an issue in short sales either.

Every situation is different. Before we recommend a foreclosure alternative, we will thoroughly review your case. We are committed to finding the best possible outcome for you.

DEFAULT

I. What is a breach or default?


A breach or a default is the failure to make a payment as scheduled on your mortgage in the context of real estate. So if you fail to make a payment, it will trigger action on the part of your lender to find out why you’re missing the payments and to attempt to collect those payments from you.




II. What is an underwater mortgage?


An underwater mortgage is one in which the property is worth far less than the amount that you owe on the property. For example, if you have a mortgage for three hundred thousand dollars and the property is only worth two hundred thousand dollars, then you’re ‘underwater’ about a hundred thousand dollars.





LOSS MITIGATION

I. What is loss mitigation?


Loss mitigation is any strategy that a lender uses to mitigate or reduce the amount of damages that they would endure in a foreclosure lawsuit. So for example, rather than go a longer time without taking your payments, a loss mitigation solution would be a long modification or short sale and this will help reduce the damages that occur against the lender. They have the responsibility under federal law to offer these types of solutions to you.




II. What type of information should I have ready to discuss loss mitigation with my lender?


If you’re interested in loss mitigation solutions, such as a short sale or loan modification, the lender is going to ask you to document two things: your income and your hardship. The income will be documented by pay stubs, bank statements, tax returns, and things of that nature. Your hardship will be documented by whatever is causing you to miss your payments, such as a medical emergency, loss of your job, or similar situations.




III. What information will the mortgage lender ask for when I contact them?


Assuming you’re contacting a mortgage lender for the purposes of trying to work something out after missing payments, they’re going to want know how much income you have in order to determine what mortgage payment you’re able to afford. Secondly, they’re going to want to know what caused you to miss mortgage payments in the first place.





DED IN LIEU OF FORECLOSURE

I. What happens if I just mail the keys to the bank and walk away?


If you just mail the keys to the bank and walk away, it probably will not stop your foreclosure because, in order to get a deed in lieu of foreclosure, which is what you’re attempting to do here, there’s a requirement that you sign paperwork that is mutually agreed upon by both you and the lender. By walking away, you don’t have an opportunity to sign that paperwork. So the lender has no choice but to continue to pursue the foreclosure, get a default judgment against you, and then do their best to find you and garnish your bank accounts and wages if you’re an employee so that they can get whatever is not paid after the foreclosure sale.





FORBEARANCE

I. What is a loan forbearance?


A loan forbearance occurs when a lender allows you to miss a few payments because of a hardship and then asks you resume your regular mortgage payments plus a little more in order to pay off the missed payments. So for example, if you have a thousand dollar monthly mortgage payment and you miss three months in a row, the lender may ask you to pay $1,500 a month for the next six months until that three payments you missed are paid off. Depending on your situation, forbearance may or may not be the best option.




II. What is a repayment plan?


A repayment plan is a plan whereby you will make up the payments of your arrears, the mortgage payment that you didn’t make before, with the lender. Or it could take the form of a loan modification where you reach some type of negotiated agreement to begin making payments at some point in the near future and begin making your principal interest taxes and insurance payments to the lender again, generally at a reduced payment amount.





LOAN MODIFICATION

I. What is a loan modification?


A loan modification is an agreement between you and the lender to change the terms of your mortgage payment. Typically, that agreement can result in a lower payment, sometimes a lower interest rate, and occasionally a reduction of your principal balance. It puts the borrower in a position where they can permanently remain in their home and allow them to live in peace and not worry about being kicked out of their home.




II. Can I refinance my mortgage if I miss a payment?


If you miss only one mortgage payment, then you can refinance your mortgage under a federal program called HARP. The more payments you miss, the less likely it is that lenders will help you refinance your property.




III. What is the difference between a refinancing and a loan modification?


The difference between a refinancing and a loan modification is largely technical. A loan modification results in the reduction of your mortgage payment and may or may not result in the reduction of your principle balance. A refinancing on the other hand typically could happen with your lender or with another lender and has the same goal typically to reduce your mortgage payment and maybe even reduce your principal balance. However, sometimes people will increase their principal balance while simultaneously reducing their mortgage payment by getting a lower interest rate so they can use the difference to pay off other bills.




IV. Can I qualify for a loan modification or should I not even bother?


Whether or not you will qualify for a loan modification depends on two points, the first of which is whether or not you have the ability to pay. The lender will generally take a look at about one-third of your income to determine whether or not they can make that number work as a payment for your mortgage principal, interest, taxes, and insurance. If you don’t have any income, then you probably won’t qualify.




V. Do I need to live in my house to qualify for mortgage assistance or a loan modification?


You don’t necessarily need to live in your house to qualify for mortgage assistance or a loan modification. Many lenders are willing to give loan modifications and other types of mortgage assistance on investment property, if it’s being rented to someone else, or if it’s not your homestead, so it really depends on the lender and what options they make available to you.




VI. Can I still qualify for a loan modification if my loan has already been modified?


If your loan has already been modified, most lenders won’t allow you to modify it a second time within 12 months of the first modification. After this period of time, many lenders will consider you for a second loan modification although they are not obligated to do so.




VII. Are there instances when loan servicers cannot help modify my loan?


There are instances when loan services will not help you modify your loan. Those instances occur when you have no income with which to pay a mortgage. They generally won’t invest the time if there’s no possibility of the payment can be made, however if you do have income, it is now a matter of discretion for that individual servicer and whether or not they’re being guided by the lender to either negotiate a loan modification or are refusing to negotiate a loan modification. Some investors/ lenders are not willing to negotiate loan modifications because the economy has hit them so hard they’re trying to get as much cash back into their coffers as they possibly can and really don’t care whether you’re able to make the payments or not once you fall behind. This is why you need the services of a good and competent attorney who can work with the servicer and the lender to make sure that your rights are protected.




VIII. Are there any free housing counseling services available to homeowners who are struggling to stay in?


The federal government funds many not-for-profit entities and you should Google this in order to find where they are for your particular location. In addition, under federal law, the lender is required to offer you free counseling services for your housing problems before filing foreclosure. If you don’t receive a letter stating this, you should tell your attorney, because it could be an affirmative defense in your case.




IX. What happens to my adjustable rate if I qualify for a loan modification?


Typically if you have an adjustable rate mortgage and you qualify for a loan modification the lender will make some adjustments to that adjustable rate mortgage so that it doesn’t hurt you as much as it would have before. If you can qualify for a fixed a rate mortgage at about 4 percent interest rate, then it can be a permanent fixed interest rate for the term of the loan. If you’re income is not sufficient to support a 4 percent mortgage, many times we can get as low as a two percent mortgage for five years and gradually have come up after six seven or eight years up to four or five percent and then remain at five percent or 4 percent for the rest of the term of the mortgage. Typically, this is a better interest rate than you would have had you kept the adjustable rate mortgage and will result in lower payments for you in the long term.




X. What happens to the principal balance after a loan modification?


If your property is underwater in other words you owe a lot more than with the property is worth, different lenders have different policies on how they will deal with that during a loan modification. Some lenders are willing to reduce the principal balance down to the fair market value when they approve the loan modification. Some lenders are unwilling to reduce the principal balance at all and still other lenders if you call will reward you for a history of good payments by reducing the principal balance in increments for every year that you make twelve on-time payments





SHORT SALES

I. What is a short sale?


A short sale occurs when you owe more money than the property is worth and both you and the lender agree to sell that property in an effort to get rid of most of your loan, the amount that you owe to the lender. Some lenders will come after you for the deficiency, the difference between what was owed and what the property was worth. Other lenders will agree to waive that deficiency because you’ve saved them so much money on the foreclosure. You should consult an attorney to determine whether or not you’re going to be able to get a waiver of that deficiency.




II. Can my property in Florida be sold or re-financed if I am in the process of foreclosure?


Yes, your property can be sold or refinanced when you’re in the process of foreclosure. It’s more likely that it will be sold, however, since lenders are willing to take short sales or just regular sales and you collect the difference if there’s equity. Can it be refinanced? It really depends on whether or not someone is willing to lend you the money. When you’re in foreclosure, your credit has taken a significant hit and is far less than when you started. So many lenders because of your decreased credit rating may not be willing to refinance with you.




III. How will a short sale affect my credit rating?


A short sale will have a negative impact on your credit rating but it is one of the least impactful ways to hurt your credit. A foreclosure will impact your credit for up to seven years, a bankruptcy up to 10 years, a deed in lieu of foreclosure up to five years, but a short sale will have a negative impact on your credit for up to two years.




IV. Are there tax consequences on a short sale?


There can be tax consequences on a short sale. A short sale occurs when the property is sold for less than what’s owed on it. The difference between those two numbers is called your deficiency. The lender has two ways to deal with the deficiency, first they can either come after you for the deficiency or they can waive the deficiency. If the lender waives the deficiency then they will issue a 1099 within the year which will be part of your personal income tax return. If the short sale occurs before December 31st 2013 and if it’s your homestead property, then the loan forgiveness is a non-taxable event. It could extend beyond 2013 if the present decides to extend that tax benefit. If it’s not your homestead property, then the loan forgiveness is a taxable event and you’ll have to consult the services of a CPA to determine whether or not you will have to pay additional taxes on this loan forgiveness.





CHOOSING AN ATTORNEY

I. How much does it costs to hire a foreclosure attorney?


The cost of hiring a foreclosure attorney varies according to what services are being provided. Some attorneys will only provide very limited services and some attorneys will provide a vast array of services in order to help keep you in your home. So depending on what your goals are, that will probably dictate what the fees will be when you hire an attorney.




II. Why should I defend the foreclosure if I realize I am behind on payments?


It’s probably in your best interest to hire a competent attorney to defend your foreclosure once you’ve fallen behind on payments and the lender has made the decision to file the foreclosure against you. This is because it can save you a lot of heartache in the future. You may be able to negotiate a loan modification, which will allow you to remain in your home permanently with a more affordable mortgage payment. You may be able to short sale the property and attempt to secure a waiver so that the lender won’t come after you for the difference. It’s not going to be very much fun if you just don’t defend yourself, and the lender ultimately within a year or so will try to garnish your bank accounts and then try to take portions of your way to securing employee working for company. So to prevent all this heartache from occurring, you definitely want to make some effort to defend the foreclosure.




III. Should I defend the foreclosure if I am underwater or owe more money than the property’s market value is worth?


You should defend a foreclosure even if its underwater and you owe more than its worth if you care about your credit and if you intend to exercise all of your rights under the law. You never know what opportunities you have once an attorney takes a good look at your case and determines what rights are available to you.




IV. I receive letters and notices from people claiming they can help me save my home. Can I rely upon them?


There are a lot of scam artists in Florida so just because you receive a letter from someone saying that they can help you doesn’t mean that they can. You’re going to have to use your own good judgment to take a look at these letters from people who are claiming they want to help you. The bottom line is that only a lawyer can take an advanced payment in the state of Florida to help you in a foreclosure rescue situation. If anyone else who is not an attorney asks you to pay them in advance, then it’s probably some kind of scam.




V. Should I negotiate with the lender myself?


I never discourage a client from negotiating with the lender themselves, however what my own personal experiences found, is that rarely with someone negotiating for the very first time with the lender achieve the best possible deal for them has compared to someone who has done it more than a thousand time. So you should check with any attorney that you interview to see whether or not they have actual experience negotiating with lenders. If they do have substantial experience, you may be better off using an attorney who has that kind of experience.




VI. What can an experienced and knowledgeable attorney do to help me with my foreclosure in Florida?


An experienced and knowledgeable attorney can do a lot to help you with your foreclosure in Florida. Such attorneys will make sure that all of your rights are being protected during the foreclosure process. Hopefully, you’ll hire an attorney who will also help you negotiate a loan modification or some other loss mitigation solution with the lender that you are looking to accomplish.




VII. Will my attorney be able to delay the foreclosure process in Florida so I can stay in my home longer?


A lot of attorneys will help you to lay the foreclosure process so that you can remain in your home longer. Other attorneys will also help you delay the process, but at the same time seek a solution so that you can remain in your home permanently if that’s your desire.





PRE-FORECLOSURE

When can someone foreclose on my home in Florida?


In Florida a lender can foreclose on your home when you have missed sufficient payments. Typically, that’s about 90 days’ worth of payments or three months, but sometimes you can remain two months behind for an extended period of time and that may trigger a foreclosure as well from the lender.




What happens when I miss my mortgage payments in Florida?


When you miss your mortgage payment you can expect a call from your lender asking you why you missed it. If you missed several months then your lender will begin sending you letters demanding that you make those payments, and if you go too long without making these payments generally in Florida about three to four months in your lender will begin to file foreclosure.




What are the consequences of missing ONE mortgage payment?


When you miss one mortgage payment you’re going to take a hit on your credit and your lenders are going to start making phone calls asking you why you missed the payment.




What are the consequences of missing TWO mortgage payments?


If you’ve missed two mortgage payments, unless your FICO score started out in the mid seven hundreds, missing two mortgage payments will knock you below 600 on your FICO score. Secondly, it will cause the lender not only to make phone calls to you asking you why you’re missing those payments, but now they’re going to start sending your letters as well making the same inquiry.




What are the consequences of missing THREE mortgage payments?


Once you’ve missed three mortgage payments and you’re 90 days in arrears, statistically/nationally, there’s less than a 50 percent chance that you will bring that mortgage current. This means that the lender will now begin the foreclosure process, transfer the case over to the lawyers, and ask them to file a foreclosure lawsuit against you.




What are the consequences of missing FOUR mortgage payments?


Once you’ve missed four payments you have lost the opportunity to pay off the back payments of the loan. You would have received a letter after 90 days stating that you had 30 days in order to pay off the arrears. The case has been referred to a foreclosure attorney and by the time you miss the fourth payment, in most cases, the lawsuit has been filed against you and you can expect within a couple of weeks to be served by a process server with a copy of that complaint.




I am not in foreclosure yet, but I am worried. How do I know if I am in danger?


You’ll know you’re in danger when you start receiving phone calls from your lender for the failure to make certain mortgage payments. After 90 days, they’re probably going to make the decision to file foreclosure and you’ll receive a letter stating it’s their intent to do so or their intent to accelerate the loan. That means that the lenders about to file foreclosure and to attempt to take the home away from you so that they can have their debt paid in full.




If I know that I will be out of work and unemployed soon, what can I do now to prevent foreclosure?


If you know that you’re going to be laid off and unemployed sometime in the near future it’s time to call your lender. The lenders is going to want to know whether not you’re going to find another job or what can you do to be able to make payments while unemployed or how long you need to go without making payments. Many loans will allow you to forbear your mortgage payment, which means you can go three sometimes up to six months without making a mortgage payment, but then you’ll have to make it up at some time in the future. Generally, once you begin making payments it’ll be a higher payment than you originally had.




I received a letter from my lender advising me of its intention to begin foreclosure. What should I do?


When you receive a notice of intent to file foreclosure or notice of intent to accelerate your loan from your lender, then it’s time to get some help. You should call an attorney or if you like you can try on your own to call the lenders and see what they can do for you. That letter will generally tell you that you have a certain amount of time, about 30 days, to bring that loan current or else they will file foreclosure but you really should call an attorney.




My mortgage servicer is not my lender. How do I know who my lender is?


In order to find out from your servicer who your lender is the first thing you should do is make a phone call to your servicer and ask them who your lender is. If the servicer has filed foreclosure and your lender didn’t file foreclosure against you, then many times there’s a reason why they’re keeping the identity of that lender secret. The loan is no longer owned by the originating lender. It has been sold probably multiple times to various entities and the servicers merely the one collecting the payments and delivering the money to the current lender. If that’s the case that they won’t tell you who the lender is, then there’s a reason that is advantageous to you. Many times a lawyer will have to fight in court to find out who that lender actually is and once they find that out there is some advantage that you can gain.




Why did my mortgage company send me my payment back?


The acceleration clause in a mortgage is part of the agreement, typically in paragraph 22 of the mortgage, that says that the lender must give you notice prior to filing foreclosure. This notice usually takes the form of intent to accelerate the loan or intent to file foreclosure and there are certain requirements of what must be stated in that letter before the lender can file foreclosure. Many times lenders fail to do this or they fail to include this letter in their complaint for foreclosure and it can cause them problems when attempting to foreclose on the loan.




Do I have to move out of my home during the foreclosure process in Florida?


In Florida, a judicial foreclosure state, you don’t have to move out your house until the sheriff shows up and orders you to be evicted. That doesn’t happen until very late into the process. In Florida a judge has to make the decision to evict you from your home. So when the lender files foreclosures you have at least six months and sometimes as much as two or three years before the eviction will actually occur.





FORECLOSURE BASICS

I. What is foreclosure?


Foreclosures a lawsuit filed by the lender to collect on a mortgage that they gave you, alone that they gave you, which is secured by a mortgage. The note says that you’re borrowing this money and agree to pay it back under the terms of the note. Every single month for example, for thirty years. The mortgage says if you fail to pay those payments as scheduled, then the lender has the right to foreclose on that mortgage and that note and take the property from you and sell it in order to get the money back that they lent to you.




II. What are the alternatives to foreclosure in Florida?


In Florida there are several alternatives to foreclosure. If you are not interested in remaining your home you can short sale your house and have a lower impact on your credit. You can also complete a deed in lieu of foreclosure which is essentially the same as giving the lender the keys and walking away from your home. If you want to remain in your home then the best avenue is a loan modification. If you’re not behind on your mortgage at all and are not in foreclosure then there’s a federal program called HARP which also allows you to refinance or modify your loan.




III. What are the steps in the foreclosure process in Florida?


The steps in the foreclosure process are as follows: First, the lender has to give you a notification that they intend to file foreclosure. Second, they will actually file the lawsuit against you and serve you. Third, they will seek a judgment from a judge in the state of Florida, a judicial foreclosure state, so that they can set a sale date sell the property and recover the funds that were lent to you. After that, then they will receive a certificate of title and then move to evict.




IV. How will I know when a foreclosure has started?


You’ll know that a foreclosure has started when you have been served personally by a process server with a copy of the complaint filed in court. The complaint is the document that the lender uses to file the lawsuit against you. It is not permissible in the state of Florida for them to send it to you in the mail or to leave it on your front porch. They have to hand it to you personally. In your home, and to an adult who is over the age of 16 in your home who lives there. For every person who lives in your home that is not related to you, those people must be served individually as well.




V. If my house has a homestead exemption, can I still lose my house in a foreclosure?


A homestead exemption doesn’t prevent you from losing your house in foreclosure if you have missed payments on your homestead property. However, if you’ve missed payments on another property or an investment property, your homestead is protected as long as you are current on those payments.




VI. What is the foreclosure process and how long does it take?


A foreclosure is a lawsuit filed by a lender when a borrower fails to make payments on their mortgage after a few months. In Florida, when you closed on your loan you had several documents which included a note and a mortgage. Your note is your promise to pay given the terms of that loan. The mortgage says that if you failed to make the payments according to the terms of the note that the lender has the right to take your house, to sell it at a foreclosure auction, and to have that loan repaid back to them.




VII. How long does the foreclosure process usually take in Florida?


The foreclosure process in Florida, historically, has taken as little as six months to as much as 4 or 5 years. During this summer in 2013, both the legislature and the courts took substantial measures to shorten this process. We see an average of about two and a half years from the beginning to the end of a foreclosure process. I expect over the next couple of years that that process will decrease substantially to about a year to a year and a half.




VIII. How many payments do I need to miss before I lose my home?


It’s kind of hard to tell how many payments you need to miss before you lose your home in a judicial foreclosure state. I can tell you that after you miss three payments the bank will initiate the foreclosure process. When you miss the fourth payment their lawyer would have filed a foreclosure in most cases, but a foreclosure case can extend from the Thomas file from as little as six months to several years. So it really depends all what defenses are being put forward, whether or not you defend at all, and whether or not the judge understands your point of view in this particular case.




IX. What happens to my mortgage if my house is foreclosed in Florida?


When your house is foreclosed your mortgage is basically extinguished if it’s a first mortgage and all other liens are extinguished as well, except for property taxes and IRS taxes that are attached to your home. So when the sale occurs then the lender, if they’re the ones who bought the property or if someone else buys the property, then the mortgage itself is extinguished and there remains potentially and unsecured remaining debt which the lender may or may not decide to come after you to pay.




X. What happens to my credit line if my house is foreclosed?


Your credit starts to deteriorate once you start missing payments. Typically, unless you have a very high credit score to begin with, missing two mortgage payments will move your credit score to below 600. If you are actually foreclosed upon and there’s a foreclosure sale, then you’re going to have negative credit on your credit report from this foreclosure auction for at least seven years unless you take some affirmative action to remove it from your credit report or to decrease that term.




XI. How are most foreclosure cases settled in Florida?


Most foreclosure cases are not settled in Florida. Most have been resolved in the property being sold and the borrower being evicted. However, there are some attorneys who have a very high success rate in settling cases in Florida. So you should contact an attorney and find out what their record is for the number of clients that are evicted versus the number of cases that are settled on a month by month basis.





FORECLOSURE DEFENSE

I. How can I defend a foreclosure action in Florida and keep my home?


It’s not very hard to defend a foreclosure and keep your home if you’re willing and able to make payments on your mortgage in a modified sense. Most of the time a modified payment will be less than what you were paying before with the lender and most lenders are willing to make your payments lower and perhaps your interest rate or even your principle balances lower if there’s a hardship that occurred that caused you to miss your payments in the first place.




II. Who can foreclosure on my home in Florida?


In Florida anyone who possesses your original blue ink signature note and has the right to that note can file foreclosure against you. Typically, that is either the original lender, someone they sold the note to, or a servicer. All three of these entities may have right to sue you in foreclosure.




III. Who pays the foreclosure fees in Florida?


In a foreclosure the lender pays the foreclosure fees to file the case. This can be up to two thousand dollars per for closure case that’s being filed, but once the judgment occurs and if there’s a final judgment against the borrower than the borrower will be responsible for all fees and costs associated with the foreclosure process. This is paid at the auction assuming that there’s enough money paid at the auction by some other bidder to cover all those costs. If they’re not covered, than the remainder is called a deficiency. In Florida, the lender has up to one year to come after you for the difference. Most of the time if you’re represented by counsel, competent counsel, that deficiency can be waived.




IV. What will happen in court for my foreclosure in Florida?


Florida is a judicial foreclosure state. There are 26 judicial foreclosure states and in these types of states a complaint is filed you are served process and the process occurs within the court where the lender will explain to the court why you should be foreclosed upon. If you don’t allow for any defenses or if you don’t contact an attorney to state your defenses then this process can happen rather quickly, and the lender will schedule a hearing to get a file just from the judge and then schedule a foreclosure sale and then the eviction.




V. Will I have to go to court for my foreclosure in Florida?


In Florida the foreclosure process is a judicial process which occurs in court. You don’t necessarily have to go to court yourself, but it would be a terrible thing if no one showed up on your behalf at a court proceeding when you’re in foreclosure in Florida because there are so many defenses available to you and there’s a great opportunity to settle this issue before you’re evicted from your home. If it’s your desire to stay then you should seek competent council.




VI. What will happen if I do not do anything, but ignore the summons and foreclosure complaint?


If you decide to ignore the summons in the foreclosure complaint than the judge in that case will issue a default judgment against you. This will allow the lender to come after you for the deficiency judgment. If that occurs, then the lender will have the opportunity and the ability to garnish your bank accounts. If you have a job as an employee, they will be able to garnish your wages as well and take much of the money that you earn on a week to week basis.




VII. Do banks have to maintain the original paperwork on my mortgage to foreclose on my property in Florida?


Typically banks must maintain the original paperwork, specifically the note and of course the mortgage that’s filed and the public records of the county clerk. If the lender does not have the original note that you sign with your blue ink signature then it may create some problems in their ability to foreclose on your home. If they plead in their initial complaint that they have lost the note then they will have to prove to the court that they once had possession of that note and lost it while it was in their possession. Otherwise, lenders will find it very difficult to execute a foreclosure in the state of Florida.




VIII. What are allowed affirmative defenses to a foreclosure in Florida?


There are many for affirmative defenses in a foreclosure action. Most of the time, we use standing whether or not the entity that’s suing you is the proper one to see you in foreclosure. Many times you’ll have a loan with Bank of America and find yourself being sued by Bayview and I know you’re wondering as a borrower why is Bayview suing me when I have a loan with Bank of America, but we see that all the time and there are literally twenty or thirty affirmative defenses that you can use to help protect your rights.




IX. Why are affirmative defenses to a foreclosure different than just an answer with denials?


A foreclosure with affirmative defenses is different from an answer with denials because the affirmative defenses allow you to exercise many rights that just the simple denial will not allow you to exercise. If you don’t plead affirmative defenses along with your answer, then they are deemed waived by the court. So if the lender has done something wrong, if they have violated certain laws, and pursuing you in foreclosure, you’re waving those defenses. So it’s always good to speak with an attorney, explain your case to that attorney, and let them evaluate it so they can determine what affirmative defenses are applicable to your case.




X. Are foreclosure laws different from county to county in Florida?


Foreclosure laws are passed by the state and so they apply to every county within the state, but sometimes from county to county or from judge to judge within a county you may see slightly different decisions based on the circumstances surrounding the foreclosure. So it’s important that you understand who the judge is and what the trends are within the county where your property is located.




XI. Are foreclosure laws different from state to state?


Foreclosure laws are different from state to state. There are two types of states when it comes to foreclosure, judicial foreclosure states and non-judicial foreclosure states. Florida is a judicial foreclosure state which means that a judge has to make every decision through the whole judicial process and eventually make the decision to evict you from your home. In non-judicial foreclosure states, judges are not part of the process unless you hire an attorney who will make the judge part of that process.




XII. What will happen to my foreclosure if I file bankruptcy?


Once you file bankruptcy your cases transfer from state court which handles the foreclosure to federal court which handles the bankruptcy. This stops all action in the state court under the foreclosure process. However, bankruptcy courts may or may not allow you to continue your case in their court for an extended period of time. Typically, when you file a chapter 7 bankruptcy because of your foreclosure, the foreclosure court will release your case back to the state court after 60 days. If you file a chapter 13 then you may be able to keep your home in bankruptcy for an extended period of time, but this will require you to make payments on your mortgage which generally are going to be higher than the ones that you’ve been missing in the first place. So it would be important then to discuss this with the bankruptcy attorney who’ll give you further guidance on this subject.




XIII. What is a partial claim?


A partial claim essentially occurs during a loan modification when a portion of your loan is set aside separately as a potential balloon payment at the end of your mortgage. So for example, if you have a property that has a two hundred thousand dollar mortgage but it’s only worth a hundred and fifty thousand dollars, some lenders will allow you to make payments on a hundred fifty thousand dollars, make no payments on the fifty thousand dollar difference, not charge you interest on the fifty thousand dollar difference, and then we’ll ask you to pay that fifty thousand dollars as a balloon at the end of the term of the loan. Much at the time, this fifty thousand dollars is put in the possession of the Department of Housing and Urban Development and there is some likelihood that they may forgive that amount at the end of the term of your loan.




XIV. I have lots of other questions about my foreclosure. Can I call the judge or the court for advice?


You should not call the court or the judge for advice on your foreclosure process. They’re not set up to do that and under the rules what we call “ex party communication with the judge”, that means communication without the other side being present, it’s prohibited. So it’s not a good idea to call the judge but instead to call an attorney so that you can have those questions answered, especially one that will give you a free consultation.





CONDOMINIUM FORECLOSURE

I. What remedies do I have in Florida against a condominium foreclosure or mechanic’s lien foreclosure?


When a condominium attempts to foreclose on you for the failure to pay the condominium fees or if another contractor attempts to foreclose on you through their mechanics lien, you have the similar defenses available to you that are available in normal foreclosure. However, in Florida if there is sufficient equity, the mechanic’s lien entity will file against you. If there’s not, they generally will not. Condominium leans, however, are independent of the other lien in the property. So the other lien will remain should the condominium or homeowners association entity file foreclosure against you, and they have tremendous power in being able to execute those foreclosures. Generally, what they need to prove is that you are within the geographical limits of the condominium or the homeowners association, and second that you didn’t make the payments.





FINAL JUDGEMENT

I. If a foreclosure judgment enters, will there be a public auction?


In Florida once the judge enters a final judgment of foreclosure against you then that judge will also schedule a date a for foreclosure auction and that date can be anywhere from as little as 30 days to as long as 180 days or six months out from the date of the final judgment. You also have the opportunity to go before that court, and given certain circumstances, extend that date even further.




II. What does it mean when debts merge?


There are two definitions for when debts merge. First of all, when you begin missing all your payments the bank refuses to take any further payment because they’ve initiated the foreclosure, in some circles, that is the definition of when debts merge. There’s also a second. If you have multiple liens on your property, a first lien for the mortgage, a second mortgage, or home equity line of credit and perhaps some other liens say a mechanics lien on your properties, once the foreclosure sale occurs all the debts that cannot be paid from the purchase of the property at the auction are then merged as a single debt in essence. Those notes and those debts are now unsecured debts.





REINSTATEMENT/REDEMPTION

I. Do I have the right to reinstate my mortgage in Florida?


Yes, you have the right to reinstate your mortgage in Florida. Reinstatement means paying up all the arrears of the payments that you had not made. Many times you can do this before or after the foreclosures is filed, but was the foreclosures fault me attorneys have found that you can instead accomplish a loan modification where you don’t have to pay the lump sum of the arrears. For most borrowers this is a much better deal.




II. How do I cure or reinstate the default on my mortgage in Florida?


In Florida you can cure reinstate the default by simply making the payments in one lump sum that you’ve missed in the past. If you’re unable to do that then it’s time to work with your lender and negotiate with them to see whether or not they are able to give you some type of loan modification. If you’re doing this for the first time, then you’re probably not going to get the best deal. You should contact an attorney who has significant experience with loan modifications so that they can assure that you will get the best possible result when negotiating with your lender.




III. Can I be allowed to pay the arrearage on my Florida mortgage after a foreclosure has started?


Many times lenders will negotiate with you to pay the arrearages on your mortgage after the foreclosure has started, but a better deal typically will be a loan modification. If you have the ability to pay, many times the lenders will waive the arrearages or they will add it to the back end of the principle and allow you to have a much lower mortgage payment as well. So many times clients can take advantage of that option too.




IV. If I bring my loan current, does that stop the foreclosure process?


You’ll have the opportunity to bring your loan current and stop the foreclosure process up until the deadline that the lender gives you and their notice of intent to file foreclosure. If you attempt to pay it off after that point and the lenders already filed foreclosure, then under the law they are not permitted to take your money and so the foreclosure process will proceed. You will have an opportunity then to negotiate with your lender, if you use the services of an attorney that provides that service, and hopefully either pay off their arrears of your loan or to conduct a loan modification where you probably wouldn’t have to pay off the arrears at all.




V. Is there any special redemption period after the foreclosure during which I could buy the house back?


In Florida the redemption period extends for up to 10 days after the foreclosure sale. If you have the funds, then you can pay the entire amount for the final judgment and keep your home. It is rare for us to see someone do that. There are other options, however, and you may be able to still after a foreclosure sale, even right before eviction, negotiate some type of solution with your lender.





FORECLOSURE SALE/AUCTION

I. What should I do to avoid a foreclosure sale in Florida?


To avoid a foreclosure sale, you should engage the lender in some loss mitigation effort. A loan modification or a short sale. If it is your desire to remain in your home you’re probably going to seek a loan modification to reduce your mortgage payment so that its affordable to you, and to find the win-win for both you and the bank so that the payments make sense to them as well as for you.




II. What happens at the actual foreclosure sale in Florida?


In Florida there are two types of foreclosure sales; one is one that was conducted online and the other that is conducted on the courthouse steps generally. Most of the counties in South Florida have online auctions and anyone can go online and bid on a home that’s up for a foreclosure auction, but first you have to put down a deposit which is at least 5 percent of the maximum bid that you wish to offer.




III. Can I bid at my own foreclosure auction in Florida?


You can bid at your own foreclosure auction. If the lender has been unwilling to give you a loan modification and you really want to stay in your home, then you have the ability to put down a deposit just like anyone else and bid on your home. Whether or not you’re successful would depend on other competitive bids and whether or not the lender establishes a minimum bid that has more than you can afford, but once that bid occurs and you’re successful you have 24 hours to give the entire amount bid to the County Clerk.




IV. What if nobody bids on my Florida property at auction?


It may occur that no one bids on your property at auction, but whenever the property is up for auction the lender has a minimum bid that they’re willing to accept. If no one exceeds that then the property reverts back to the lender. Many times you’ll see on a court docket, if you’re online looking at these things, a bid for a hundred dollars that the bank now owns the property. So the bank sets it up so that the minimum bid is at least a hundred dollars more than the bid that they set.




V. Will I get any of the sales proceeds if the court clerk sells my Florida property in foreclosure?


When a property is sold in foreclosure the amount of money that is bid is used to pay off all of the liens in order. The first mortgage, second mortgage, any mechanic’s liens, or anything else that is owed on the property. If there’s still money left over from the bid that was made on the property, then that is called the surplus. The borrower, you, is entitled to that surplus. Typically, the clerk will send you the check associated with that surplus, but many times we have found that that is not the case and you may need to hire an attorney to go get that money for you.




VI. At the foreclosure sale in Florida, will the attorneys and potential bidders have to come inside the house?


When your house is being sold at auction no one has to come into your home unless you decide to let them in. Typically, a lender will want to send a real estate agent to conduct a BPO ( a broker’s price opinion) but no one else can come in unless you say that it’s okay for them to come in prior to the sale of the property.




VII. What happens when a property is auctioned in Florida subject to a first mortgage?


When a property is auctioned subject to a first mortgage it generally means that someone other than the first mortgage holder has filed the foreclosure. It could have been a condo association, a homeowners association, a second lien holder for a second mortgage or a home equity line of credit, or maybe even if there’s enough equity in the property, a mechanics lien. All of these can file a foreclosure. The property is then sold subject to the first mortgage so that it’s made known to the rest of the world that the first entity that is going to be paid id the first lien holder. Or the first mortgage holder.




VIII. In a foreclosure in Florida, can the mortgage lender go after my other assets?


If a lender secures a deficiency judgment against you in a foreclosure they have the ability to go after your bank accounts, and if you’re an employee, after portions of your wages. So it is best to have an attorney represent you so that you can prevent this from occurring.





EVICTION

I. What is the eviction process in Florida?


The eviction process in Florida occurs after the sale. You have 10 days before the certificate of title changes ownership from you to whoever was the successful bidder at the foreclosure auction. From that point the successful bidder, whether it’s the bank or some other person, can at their discretion ask the judge for a writ of possession which gives the sheriff the authority to evict you from your home. Once that writ of possession is issued, the sheriff will post a notice on your door giving you warning that they will appear at a time in the near future to remove you and your belongings from the home. You have the option then, if it gets that far in the process, to let the sheriff know that you’re going to move ahead of time and then avoid some of embarrassment associated with this.




II. What is an eviction period?


An eviction period is the time that it takes from the sell of the property to eventually get to a writ of possession which allows the sheriff to evict you. Once the sale occurs, by law, the clerk of the court has to wait at least 10 days before issuing the certificate of title which then changes the ownership of the property from you the borrower to whoever won the property with the highest bid at the auction. Once that occurs then that individual or then that individual or bank if they won the bid will ask the court to issue a writ of possession. Many times when it’s a third-party buyer or investor they will come and kindly ask you to leave the home so that they can then do what they want to do with the property either move into it or rehab it and rent it to someone else.




III. What will happen if I do not get out of my home after a foreclosure sale takes place?


If you do not get out your home after a foreclosure sale takes place you still have a little bit of time. First, the tile has to change hands. That takes 10 days. Second, whoever purchased the property at the auction may ask you to leave. If you decide not to leave then they have the right to go before the judge and ask for a rid of possession, which is what allows the sheriff to come and evict you from the property. If you haven’t done so and you wish to remain in your property, then you should seek the services of an attorney who may be able to help you do that.





TAX ISSUES

I. Can I be foreclosed upon for delinquent taxes?


You can lose your house for delinquent property taxes, but it’s not the normal foreclosure process. When you fail to make your property tax payments, if it is your responsibility and not part of your mortgage payment, then the county will issue tax certificates to other investors, or banks, or other financial entities who decide to buy those tax certificates so that the county can still receive its revenue. If this happens three years in a row then your property is eligible to be sold at a tax deed sale and whoever pays off those tax certificates at that tax deed sale then has the right to take possession of your property. This will extinguish all other liens against your property, including the mortgage. This is why when you fail to make your property tax payments a lender who has a hundred thousand, two or three hundred thousand dollar mortgage on your property will generally pay those property taxes themselves. So that no one else can extinguish their mortgage.




II. Are there any federal income tax issues involved with the mortgage delinquency process?


There can be some federal income tax issues involved in the delinquency process. If a lender forgives any part of your debt through a loan modification by reducing your principal balance or through a short sale by waiving the deficiency, the difference between what’s owed and what the POW sells for, then that becomes a loan forgiveness issue for you. The lender will issue a 1099 at the end of the year and that 1099 and will be filed with your personal income taxes. If this occurs prior to December 31st 2013 and it’s your homestead property then that is a non-taxable event and you don’t have to pay taxes on it, but if it’s not your homestead property of it happens after 2013 unless the president extends that tax deduction, then you will have to pay taxes on it.




III. Are there tax consequences on a short sale?


There can be tax consequences on a short sale. A short sale occurs when the property is sold for less than what’s owed on it. The difference between those two numbers is called your deficiency. The lender has two ways to deal with the deficiency, first they can either come after you for the deficiency or they can waive the deficiency. If the lender waives the deficiency then they will issue a 1099 within the year which will be part of your personal income tax return. If the short sale occurs before December 31st 2013 and if it’s your homestead property, then the loan forgiveness is a non-taxable event. It could extend beyond 2013 if the present decides to extend that tax benefit. If it’s not your homestead property, then the loan forgiveness is a taxable event and you’ll have to consult the services of a CPA to determine whether or not you will have to pay additional taxes on this loan forgiveness.





BUYING ANOTHER HOME

I. When will I be able to get another mortgage and buy another house after a foreclosure?


After you have gone through a foreclosure judgment and auction typically this information will remain on your credit report for about seven years if you take no action at all to remove it from your credit report. However, there are some situations and which this information can be removed from your credit report in less than seven years. So it really depends upon what action you take to rectify that situation before you can buy another home or secure another mortgage.





FEDERAL LAWS

I. How do I get the lender to stop calling my home at all hours?


You can get the lender to stop calling your home by sending that lender, if it’s the original lender, a notice of representation from an attorney and then the lender will have to speak specifically with that attorney instead of speaking with you. If you’re receiving calls from someone other than your original lender, then you can send them a cease and desist letter because the Fair Debt Collection Practices Act applies to those who call you who are not your original lender and they must stop calling you once you ask them in writing to stop calling you.




II. Can the Fair Credit Reporting Act help me?


The Fair Credit Reporting Act may be able to help you qualify for mortgage subsequent to a foreclosure or bad credit history. The Fair Credit Reporting Act requires lenders to ultimately remove negative information from your credit report if it’s found to be false, but first you must affirmatively take the steps to ask the credit bureaus to have it removed. The lenders will not remove it on their own.




III. Can the Real Estate Settlement Procedures Act help me?


The Real Estate Procedures Act may be able to help you. You have up to three years to file a
lawsuit against a lender or to counter sues if they file foreclosure against you from the closing date of your loan under this federal law. The Real Estate Settlement and Procedures act has as its philosophy the disclosure of not only the terms of your loan, but also the fees and the commissions and other services that are being charged at your closing. This is so the consumer can take a look at those fees and commissions and determine whether or not they can get a better deal elsewhere. So without these disclosures your lender may be liable for a lawsuit.




IV. Can the Truth in Lending Act help me?


The Truth and Lending Act may be able to help you if you have a dispute with your lender within a year of closing the loan. A year is a statue of limitations associated with suing a lender for failure to disclose certain things on the loan. The federal government wants the lenders to disclose the terms of your loan, what the interest rate is, how much is being financed, what your total payments are going to be over the term loan, and other things like that so that you have the opportunity as a consumer to shop around and get the best possible deal.




V. Can the Home Ownership and Equity Protection Act help me?


The Home Ownership and Equity Protection Act may be able to help you. That federal law applies to loans that are not purchased money loans. In other words, a refinancing or a later obtained home equity line of credit would qualify under that federal law. If there are certain disclosures that have not been made, then you may be able to negotiate with your lender and/or follow suit against your lender for violations of those practices.




VI. What is the Soldiers and Sailors Civil Relief Act?


The Soldier and Sailors Civil Relief Act has had a name change, it is now the Service Members Civil Relief Act. This is the federal legislation which prohibits military members and their families from being sued in civil court, such as a foreclosure or any other type of civil situation while the military member has deployed abroad on military duty.





 

FREQUENTLY ASKED QUESTIONS

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