Foreclosure Defense in Miami, Florida

Florida is a judicial foreclosure state. That means a lender cannot take your house without first filing a lawsuit, serving you, getting a judgment, and conducting a public sale. The process takes months even when uncontested and significantly longer when properly defended. The time created by a careful defense often becomes the leverage that produces a workable outcome – a loan modification, a short sale on favorable terms, or a Chapter 13 plan that cures the arrearage.

The Florida Foreclosure Process

A typical residential foreclosure in Miami-Dade, Broward, or Palm Beach County moves through these stages:

• Default and acceleration. After missing several payments, the lender sends a notice of default and, eventually, a notice accelerating the entire loan balance.
• Complaint filed. The lender files a foreclosure complaint in the Circuit Court for the county where the property is located.
• Service of process. The homeowner is served with the summons and complaint and has 20 days to file an answer.
• Pleading and motion practice. Answer, affirmative defenses, motions to dismiss, discovery.
• Summary judgment or trial. Most uncontested cases end with a summary judgment; contested cases proceed to bench trial.
• Judgment of foreclosure. If the lender prevails, the court enters a judgment fixing the amount owed and scheduling a sale.
• Public sale. Conducted by the clerk online, typically 30 to 35 days after entry of judgment.
• Certificate of title. Issued approximately 10 days after the sale, transferring title to the successful bidder.
• Writ of possession. If the former homeowner has not moved, the new owner obtains a writ that the sheriff executes.

How We Defend Foreclosures

Effective defense looks different in each case. Common areas of inquiry include:

• Standing. Does the foreclosing plaintiff actually own and hold the note, or was it transferred without proper endorsements and assignments? Florida courts continue to dismiss foreclosure complaints filed by plaintiffs who cannot prove standing.
• Conditions precedent. Did the lender comply with the notice and cure provisions of the mortgage and any applicable HUD or VA servicing regulations?
• Statute of limitations. Florida has a five-year statute of limitations for mortgage foreclosure. Stale foreclosure complaints based on a default outside the limitations window may be dismissed.
• Loss mitigation review. Federal regulations require servicers to evaluate borrowers for loss mitigation options before completing foreclosure. Violations can be raised as a defense.
• RESPA, TILA, and FDCPA violations. Mortgage servicing violations can produce counterclaims and leverage in settlement.
• Service defects. Improper service is a recurring issue with substitute service on residents at the property.

Stopping a Foreclosure Sale Through Bankruptcy

The single most effective tool for stopping a foreclosure sale on short notice is a bankruptcy petition. The automatic stay takes effect the instant the petition is filed and immediately stops any pending foreclosure sale, even one scheduled for the same day.

A Chapter 13 petition does more than stop the sale. The plan can cure the entire mortgage arrearage over up to 60 months, with no further attorney's fees and costs accruing on the arrears, while the homeowner makes ongoing post-petition mortgage payments. At the end of the plan, the loan is current and the foreclosure is over. See our Chapter 13 page for details.

Alternatives to Litigation

For many clients the best outcome is a negotiated resolution rather than a contested trial:

• Loan modification. The lender agrees to capitalize arrears, reduce the interest rate, and/or extend the term to produce a payment the homeowner can afford.
• Short sale. The homeowner sells the house for less than the loan balance with the lender's consent and (usually) a release of the deficiency.
• Deed in lieu of foreclosure. The homeowner conveys title to the lender in exchange for a release of the loan.
• Consent foreclosure with relocation assistance. Sometimes called "cash for keys."

Strategic Decisions: When to Defend, When to File, When to Walk Away

Not every foreclosure is worth defending. Sometimes the property is significantly underwater, the homeowner does not want to keep it, and the right answer is a Chapter 7 to discharge any deficiency exposure and move on. Other times the home has equity, a viable modification is possible, and a long litigation defense is the path to it. We help clients make these decisions with clear-eyed information about the realistic costs and outcomes of each path.

Schedule a Consultation

If you have been served with a foreclosure complaint, are behind on mortgage payments, or have a sale scheduled, call 786-522-1411 or email [email protected] right away. The earlier we get involved, the more options remain.