What Is Foreclosure Defense?
Over the past decade, millions of people in the United States have lost their houses to foreclosure. Foreclosure requires a homeowner to return his or her house to the lender after defaulting on their mortgage. This process has shifted to favor banks and lenders, who are much better versed in the law and practice of foreclosure than homeowners are.
Over the past several years, a growing number of Miami homeowners in the foreclosure process have begun to fight back by hiring foreclosure defense attorneys to stall foreclosure proceedings in Florida or stop them altogether. The legal strategies employed by these homeowners and their attorneys is what is known as foreclosure defense.
The simplest way to avoid a foreclosure is modifying your mortgage. In a mortgage modification, the homeowner asks their lender to renegotiate the terms of their mortgage, in order to make their monthly payments more affordable.
How Do You Fight A Foreclosure?
- Mortgage modification: a mortgage modification can include having your foreclosure defense attorney ask your lender to modify your mortgage terms by reducing the loan’s interest rate, principal, late fees, or non-payment penalties. You may also ask for a forbearance, which allows you to skip payments for a certain amount of time and then pay for longer than originally agreed upon.
- Chain of title defect: In order for a mortgage to be valid, it must have a perfect chain of title. Any type of defect in the record of ownership can render your mortgage invalid and give your foreclosure defense attorney grounds to fight for your right to keep your home.
- Promissory note examination: If your promissory note has been sold to another entity or pooled together with other loans (securitized), it is no longer owned by your lender. The deed and the promissory note have been separated. The Supreme Court has ruled that the two must remain together. This is grounds to challenge a foreclosure in Florida.
- Bankruptcy: In a Chapter 7 bankruptcy filing, under the supervision of your foreclosure defense attorney, you can declare your home an unsecured asset and then wait for the lender to object. This puts the burden of proof on the lender to show a valid chain of title. In a Chapter 13 bankruptcy filing, you can file an Adversary Proceeding, suing your lender to compel it to produce valid proof of a claim. The Bankruptcy Code then requires your lender to provide evidence of a perfect title.
Can You Stop A Foreclosure Once It Starts?
Once you default on your monthly mortgage payments, your lender has the right to start the process of foreclosure. Take note that even though your bank has initiated the foreclosure process, you have some options to try, during the pre-foreclosure period, to avoid losing your house. If you are in pre-foreclosure and your lender will not negotiate with you, ask your foreclosure defense attorney to contact a housing counseling agency in the Ft. Lauderdale, FL area that is approved by the Department of Housing and Urban Development. This department charges lenders a fee to use its services and may allow you to receive an advance loan in order to bring your mortgage current. In order to qualify, you must prove your current financial hardship and sign a promissory note with your lender, which will state that you will repay your loan over time. Your lender will then have a lien on your house until you repay your home loan.
How Much Does It Cost For A Foreclosure Attorney?
Most foreclosure defense attorneys in Florida structure their fee agreements with homeowners in one of three ways:
- Hourly rate
- Flat fee
- Monthly rate
Contact a foreclosure defense attorney in Miami or Ft. Lauderdale today for a detailed estimate on the cost of your specific foreclosure case.
Will I Owe Money After Foreclosure?
One of the often-overlooked effects of a foreclosure is the likelihood of a deficiency judgment. Lenders are now commonly filing new motions in old foreclosure cases and then hiring debt collectors to pursue any leftover debts. A deficiency judgment is the court order that is issued against a borrower when a mortgage foreclosure sale fails to produce enough funds to pay the remaining balance. The bank or lender will likely sue you for the balance when this happens. The lender will attempt to enforce this order against you through a lien, a bank account levy, wage garnishments, or an involuntary liquidation.
If you have a second mortgage on the home or a home equity line of credit, those additional lenders can also sue you for a deficiency judgment after the foreclosure. When the main mortgage forecloses, then any additional mortgages or liens can sue you on the promissory note. Amounts allowed when calculating a deficiency judgment against you include the loan principal, all interest, and any attorney fees.
Can A Foreclosure Defense Lawyer Stop A Foreclosure In Miami, FL?
An excellent foreclosure defense lawyer is well trained and dedicated to preventing foreclosures. He or she also has a documented record of success in multiple methods of avoiding, delaying, and stopping a foreclosure. There are two common legal options when it comes to preventing a foreclosure. Those are filing a lawsuit or filing a bankruptcy. The best legal strategy to use in order to stop a foreclosure depends on your personal situation and is best carried out by a successful foreclosure defense attorney with a strong track record of saving homes from foreclosure in Florida.
Can I Stop A Foreclosure By Paying The Past Due Amount?
You can bring your mortgage to current and prevent a foreclosure sale filing by paying the past due amount, plus any late fees and penalties. This process is known as reinstatement. It is usually exactly what the lender wants you to do. When you successfully reinstate, you pay off the mortgage arrears along with interest, late fees, and the lender’s attorney fees. The lender or its attorneys will act as collectors and will not settle for payments less than what you owe. You normally will have to reinstate at least five days before the lender’s deadline or the lender may decide to reject your payment and proceed with the sale of your home. None of these options should be attempted without the guidance of a foreclosure defense attorney in Florida.
How Long Do You Have To Move Out After Foreclosure?
When you receive a notice demanding that you leave your property, that notice will tell you exactly how long you have before you are required to move out. Generally, this will give you between three and 30 days. If you don’t leave the property, in some cases, the new owner of your home will be required to file an eviction suit in court. An eviction procedure can take a few months to finish, which may give you some more time in your house. Most Miami foreclosure defense attorneys will advise you not to wait until the new owner goes to court and gets an eviction order against you to move out. If have to be sued, it will be a matter of public record, which can hurt your ability to rent or lease a home in the future. You’ll already be fighting against bad credit as a result of the foreclosure and possible bankruptcy. Many landlords are able to subscribe to private databases, where they screen prospective tenants for being the subject of previous eviction lawsuits. Being evicted from your home may lead to a potential landlord turning down your application for a lease or a rental agreement.
What Can I Legally Take From My Foreclosed Home?
If your home is about to foreclose, you are not entitled to strip the property of any fixtures. According to the U.S. Department of Housing and Urban Development, a fixture is any piece of property that is permanently attached to the home or property. You are permitted to remove any personal property you brought to the house, as long as its removal will not cause damage to the house. This includes appliances, like refrigerators and ranges.
Is It Illegal To Live In A Foreclosed Home In Florida?
Banks and other lenders may allow some owners of foreclosed homes to continue to live in them by renting the home from the lender, even after having defaulted on their mortgage payments. These companies base the rental price on average rent for the area and not on the value of the foreclosed mortgage. However, if the lender at any time succeeds in selling the house, then the former homeowner must stop renting and immediately move out of the house. Consult your foreclosure defense attorney before agreeing to rent your home in the Miami or Ft. Lauderdale area.
Can You Buy Back Your House After Foreclosure?
In most states, you can redeem your home after foreclosure within a set period of time. In order to redeem your home, you usually must pay the person who bought the home the entire purchase price, plus any other costs they endured.