Florida's Foreclosure Laws Favor the Homeowner
Florida has the highest rate of foreclosure in the nation. One in every 338 homes is under foreclosure, according to RealtyTrac. Fortunately, this state also has laws that are generally favorable to the homeowner in judicial foreclosure proceedings, which means that, if you understand your rights and know how to use them, it may be possible for you to prevent a foreclosure and to keep your home.
Florida Homeowners Own Their Homes
The first thing to know about state law is that Florida is a lien theory state. In many states – those that are title theory states – the homeowner does not actually own the home. Instead, the bank does, due to the fact that it holds the title and will only transfer ownership when the borrower finally pays off the debt. In Florida and other lien theory states, the homeowner holds the title, while the bank or other mortgage lender merely has a lien on the property.
Gainesville Judicial Foreclosure Lawyers Can Help You
Since Florida is a lien theory state, it is necessary for the bank to carry out a judicial foreclosure. In slightly more than half of the states across the country, lenders can use non-judicial foreclosure, which involves sending out a notice of default and then selling the property at auction. Non-judicial foreclosure is considered to be easier and less stressful, but it also makes it more difficult to contest the action for those who are determined to keep their homes. In a judicial foreclosure, it is necessary for the bank to actually sue the homeowner in court.
A Gainesville foreclosure defense lawyer can often win the case by placing the burden of proof on the bank to demonstrate that the borrower is actually in default and that the bank has all of the necessary documentation to place a lien on the property. Because many mortgages are resold and bundled with others for the purpose of selling mortgage-backed securities, the bank may not have this documentation. Another common strategy for challenging a judicial foreclosure is to allege that the borrower is the victim of predatory lending practices or Truth in Lending Act violations on the part of the bank.
Right of Redemption in Florida
Even if you lose the lawsuit and the bank succeeds in obtaining a judgment of foreclosure, state law still provides you with a Right of Redemption. You have until the date when the property is sold to come up with the necessary funds to cure the mortgage by catching up on missed payments and paying any fees assessed by the lender. Another approach to stopping foreclosure is to use the 10-day window after the sale date to find evidence that the bank violated the terms of the court order of foreclosure. Whether you have received a notice of default or if your house has already been put up for auction, contact us at The Law Offices of Justin McMurray, P.A. now for a free case evaluation to learn more about the laws and to begin working on your own case.