I would like to welcome a guest poster Stephen K. Hachey, a real estate lawyer located in Florida. I am always looking to keep my readers informed on every aspect in real estate and I felt that Stephen's professionalism and knowledge on pertinent real estate law topics would be very beneficial to my blog, enjoy the read everyone!
In 2012, nearly 2 million homes in the US were foreclosed on. Although this number has gone down compared to previous years, homeowners are still finding themselves being served with foreclosure summons.
If you’ve defaulted on your mortgage long enough, your mortgagor (or bank), will begin the law suit that the bank will file against you. This takes place roughly after 3 to 6 months of payments have been missed.
Each state has different foreclosure measures but all fall within two categories: Non-judicial foreclosure and judicial foreclosure. Non-judicial foreclosure does not require a court proceeding and takes less time than a judicial foreclosure, which involves a judgment for money owed by the borrower and in most cases, leads to the auction of the home.
Even though you may have defaulted on your mortgage, being served with a Notice of Intent does not necessarily mean you will lose your home. You can negotiate with the bank and work on a Short Sale, apply to modify your mortgage, or simply pay the loan up to its current dues.
In the event that alternative action cannot be taken, you have between 15 and 30 days, depending on your state, to file an answer with the court. The lender will make allegations in association with your default. The best way to delay the foreclosure process is to answer all allegations thoroughly. Statements that you accept will allow the lender no further action against that evidence. However, if you deny statements that are brought up in the summons, you must provide supportive information as to why you are denying them. This will force the lender to provide additional information against you, which in turn will give you more time before the auction of your property.
You may be able to fight the foreclosure in court. A commonly used defense is that the bank participated in unlawful practices in association with your mortgage payments. If you decide to contest the allegations that the bank brings to the attention of the court, you will delay the foreclosure. However, court costs and possible attorney costs will need to be paid and it does not guarantee that you will halt the foreclosure.
The Notice of Intent to Sell is the final attempt for the lender to collect the mortgage balance before the property is sold at auction. At this point, a judgment has already been made in favor of the lender. Failure to respond to the Notice of Intent to Sell will allow the property to go to auction.
The home is sold for the minimum price at auction. If the house does not sell, the bank becomes the owner by default. Then, the lender can take possession of the property and evict the resident. The entire process can take anywhere from 8 months to a year.
This post was written for Stay Real Estate by Stephen K Hachey. Stephen is a Florida real estate lawyer at http://floridarealestatelawyer.org/ specializing in loan modifications, short sales, foreclosure and much more. He is also the owner of his own practice, the Law Offices of Stephen Hachey, PA. This article is for general informational purposes only and does not establish an attorney-client relationship. Please contact a licensed attorney in your state of residence. For more information on our services, please visit our website at www.floridarealestatelawyer.org/.
