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Foreclosure by Nicole Bercume: Foreclosure Overview

Foreclosure Research Guide

General Foreclosure Procedure

This document provides an in depth guideline for attorneys about the general residential mortgage foreclosure process. Included are links to local foreclosure rules in the state of Florida, sample complaint, service of process rules, notice of lis pendens, affidavits of indebtness, attorneys fees, judicial sale by the state of Florida, and bidding procedures. 

GENERAL FORECLOSURE PROCEDURE, RPL FL-CLE 5-A-1

Mortgage Foreclosure and Alternatives

This document published by the Florida Bar is a very helpful tool for attorneys whose clients are facing foreclosure. It tells attorneys what documents they need to review in order to become familiar with the clients situation, how much to charge for legal fees, alternatives to foreclosure including paying the debt, and what needs to be filed once a foreclosure lawsuit commences.


MORTGAGE FORECLOSURE AND ALTERNATIVES, MFA FL-CLE 1

Housing and Urban Development

The United States Department of Housing and Urban Developement is a very helpful web page which includes many tools consumers can read and use to help them handle and avoid a foreclosure. 

  • The Obama Administration has implemented a number of programs, including the Making Home Affordable Program, to assist homeowners who are at risk of foreclosure and otherwise struggling with their monthly mortgage payments.

20th Judicial Circuit Mediation

The Homestead Mediation Program is a local program that was created to help facilitate open communication between the borrower and the lender to determine if the foreclosure can be prevented through a loan modification of other mortgage workout option.

The link to Administrative Order which states that due to the substantial foreclosure case filings in the 20th Judicial Circuit a Court ordered mediation of a contested residential mortgage foreclosure action must first take place. The mediation will allow parties to come to a compromise before going through with a foreclosure which has many negative impacts on our community. The least amount of resources may also be used before overburdening the already burdened court system. 

The Florida Supreme Court issued Administrative Order 09-54, which mandates mediation in homestead residential mortgage foreclosures. In re Final Report & Recommendations on Residential Mortgage Foreclosure Cases, 2009 WL 5227471 (Fla. 2009).

  • Foreclosure case filings in Florida trial courts stood at nearly 369,000 in December 2008. At the beginning of the last quarter of 2009, foreclosure filings statewide totaled in excess of 296,000. Florida has the third highest mortgage delinquency rate, the worst foreclosure inventory, and the most foreclosure starts in the nation. At the close of 2009, it is estimated there will be an inventory of approximately 456,000 pending foreclosure cases statewide. The crisis continues unabated.
  • A lack of communication between plaintiffs and borrowers as the most significant issue impeding early resolution of foreclosure cases. Effective case management and mediation techniques are the best methods the courts can employ to ensure that such communications occur early enough in the case to avoid wasted time and resources for the courts and the parties.
  • The Supreme Court of Florida has determined that mandatory mediation of homestead residential mortgage foreclosure actions prior to the matter being set for final hearing will facilitate the laudable goals of communication, facilitation, problem-solving between the parties with the emphasis on self-determination, the parties' needs and interests, procedural flexibility, full disclosure, fairness, and confidentiality. Referring these cases to mediation will also facilitate and provide a more efficient use of limited judicial and clerk resources in a court system that is already overburdened. 

FL Attorney General

Florida's Attorney General, Pam Bondi, outline tips for consumers on ways to avoid mortgage foreclosure including contacting your lender when you default on a payment. Contacting your lender can be very helpful because they can work with you and reconstruct a payment plain that fits your needs. Next, gather information about Florida foreclosure laws, your mortgage rights and review your loan documents to determine what your lender can do if you default on payments. Local foreclosure prevention seminars may also be available in your area. This link also provides contact information for consumers to nonprofit housing counselors who can help you with foreclosure issues at no cost. Certain relevant terms are also described as well as other alternatives to foreclosure. Pam Bondi also warns consumers about companies who offer to stop foreclosure immediately if you sign a piece of paper that transfers title to these companies. This is a scam and will result in losing all the equity in your home to the "rescuer". 

State specific foreclosure law

This link is available to anyone and provides people with a map of the United States. You can click on whatever state you need to learn foreclosure law on. 

Foreclosure Timeline

First month missed payment – your lender will contact you by letter or phone. A housing counselor can help.

Second month missed payment – your lender is likely to begin calling you to discuss why you have not made your payments. It is important that you take their phone calls. Talk to your lender and explain your situation and what you are trying to do to resolve it. At this time, you still may be able to make one payment to prevent yourself from falling three months behind.

Third month missed payment after the third payment is missed, you will receive a letter from your lender stating the amount you are delinquent, and that you have 30 days to bring your mortgage current. This is called a "Demand Letter" or "Notice to Accelerate." If you do not pay the specified amount or make some type of arrangements by the given date, the lender may begin foreclosure proceedings. They are unlikely to accept less than the total due without arrangements being made if you receive this letter. You still have time to work something out with your lender. 

 Fourth month missed payment – now you are nearing the end of time allowed in your Demand or Notice to Accelerate Letter. When the 30 days ends, if you have not paid the full amount or worked our arrangements you will be referred to your lender's attorneys. You will incur all attorney fees as part of your delinquency.
 
Sheriff's or Public Trustee's Sale – the attorney will schedule a Sale. This is the actual day of foreclosure. You may be notified of the date by mail, a notice is taped to your door, and the sale may be advertised in a local paper. The time between the Demand or Notice to Accelerate Letter and the actual Sale varies by state. In some states it can be as quick as 2-3 months. This is not the move-out date, but the end is near. You have until the date of sale to make arrangements with your lender, or pay the total amount owed, including attorney fees.

Redemption Period – after the sale date, you may enter a redemption period. You will be notified of your time frame on the same notice that your state uses for your Sheriff's or Public Trustee's Sale.

 

Collier County Foreclosures

This Collier County website lists every foreclosure judgment and foreclosure sale in Collier County. 

Law Review Article on Florida Foreclosure

This article is helpful for people who want to understand what a foreclosure is in layman terms, what caused the foreclosure crisis in Florida followed by possible solutions. 

Kevin F. Jursinski, The Mortgage Foreclosure Crisis in Florida: A 21st Century Solution, Fla. B.J., June 2010, at 91

Bloomberg Article on Foreclosure

Bloomberg Law’s Lee Pacchia talks with Bloomberg News bankruptcy columnist and editor-at-large Bill Rochelle about this week’s bankruptcy news and legal developments regarding a major decision on foreclosures, Borders Group Inc. and the prospects for family restaurant operators.

Florida Jur 2d, Legal encyclopedia

Lien of Seller; Enforcement; Foreclosure 

Section 190- 216 pg 268

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