Knowing how to fight foreclosure requires an in depth understanding of the Florida Rules of Civil Procedure. A mortgage foreclosure is a type of civil action, and civil lawsuits are governed by these rules. The rules require that a homeowner who decides to fight foreclosure must file a written response to the lawsuit within twenty days of the day that the papers are served on the homeowner.
“Served” means that someone (either a sheriff deputy or private process server) delivers the papers to you personally, or to someone who is legally authorized to accept them for you. This includes any adult over the age of 18 who resides in your home. These rules of procedure also permit, under certain circumstances, for service to be made by the publication of a legal notice in a newspaper in the county where the home is being foreclosed.
If no response is made within twenty days, a default will be entered against the homeowner. This means that the bank’s allegations against the homeowner are deemed admitted, even if they are false. This is effectively the end of the lawsuit. At this point, the bank’s lawyer needs only to ask the court for a judgment of foreclosure by filing an affidavit signed by someone at the bank. Under the Florida Rules of Civil procedure, this judgment can be entered any time after default is entered. The court will then schedule the sale of the home within 45 to 60 days.
The Florida Rules of Civil Procedure permit a homeowner to file a paper and defend the foreclosure by themselves – no lawyer is required. However, most homeowners do not know how to fight foreclosure because they are not trained in the rules of civil procedure, or in the complex laws of mortgage foreclosure. Any homeowner who is serious about wanting to fight foreclosure should consider hiring an experienced mortgage foreclosure attorney to help them defend the mortgage foreclosure lawsuit.
Lawyers who know how to fight foreclosure will choose the best form of response to a mortgage foreclosure complaint. Generally speaking, there are two choices: the lawyer can file an “Answer” to the foreclosure complaint. An answer either admits or denies the allegations made by the bank in the foreclosure complaint. It may also raise certain legal defenses. The better response is to file a motion to dismiss. This is a motion that asks the court to dismiss the complaint because it is legally defective. A skilled and experienced mortgage foreclosure attorney who knows how to fight foreclosure will be well versed in the legal requirements of the mortgage laws of the State of Florida. These laws require the bank’s lawyer to properly state all of the facts and law that support the right to foreclose on the homeowner. They also require that the bank attach to the complaint the note and mortgage that give it the right to foreclose against the homeowner.
The initial response is only the beginning of the foreclosure defense. Requests for information and documents about the homeowner’s mortgage must be sent to the bank. As you might expect, the bank is often unresponsive or uncooperative in providing this information. Court hearings are often required. Defending a foreclosure lawsuit is possible, but very difficult without legal training. Even lawyers who have experience in real estate law, but who have not been trained to litigate in court, will have difficulty mastering the many procedures that apply to this kind of lawsuit.
A board certified civil trial attorney is an expert in the Florida Rules of Civil Prodecure, and in representing parties in civil law actions. I have been certified by the Florida Bar as an expert in civil trial law, and I am exerienced in defending mortgage foreclosure lawsuits. If you have questions about how a lawyer can help you fight foreclosure, contact my office for an free consultation to discuss your options.