Frequently Asked Questions
Q. I have just been served with a summons and complaint to foreclose my home. What should I do?
A. By Florida law you have 20 days to file an answer to the complaint with the clerk of the court. If you fail to do anything, a default will be entered against you.
Q. What happens next?
A. The bank’s attorney will file a motion for summary judgment and ask the judge to enter a final judgment and set a judicial sale date.Q. What should I do?A. Unless you are familiar with the law, you should hire an attorney.
A. Your attorney can file an answer with affirmative defenses and an affidavit in opposition to the motion for summary judgment.
Q. How will this help?
A. It will create a factual dispute. As such, the court will usually deny the bank’s motion for summary judgment and allow the case to proceed.
Q. Can I call the clerk of the court or the judge and ask for advice?
A. No. Courts do not give advice to parties in a lawsuit. To get legal advice you need to contact an experienced foreclosure attorney.
Q. Do I have the right to reinstate my loan?
A. It depends. You must read the mortgage because some give the borrower the right to reinstate the loan until a final judgment is entered.
Q. What do I do if a final judgment has already been entered?
A. You may have the right of redemption, which means after a judgment is entered, you still have the right to refinance the loan to stop the foreclosure. However, you must do this before the judicial sale occurs and a certificate of sale is issued by the clerk of the court.
Q. Will I get any money from the judicial sale of my home?
A. It depends on how much your home sells for. If there is little or no equity in your home, most likely you will receive nothing. If there is equity in your home, you may receive something. But, typically investors purchase properties for as little as possible. So, you could possibly lose most or all of the equity you have in your home.
Q. After the judicial sales occurs, is there anything I can do?
A. In limited circumstances, that your attorney can explain, you may be able to file an objection to the sale.
Q. What if an investor approaches me with an offer?
A. Be very, very careful. There are some investor who will say anything to get you to give up your home for a faction of its value. Your loss is their gain.
Q. What if my house gets sold at a judicial sale for more than what I owed.
A. In this case there will be surplus funds held by the clerk of the court. Be very careful. There are many companies now claiming to help people get the surplus funds from the clerk, but in many cases the companies are charging anywhere from 30% to 50% of the surplus. Contact an experienced attorney to learn your rights.
Q. What if an investor offers to help me with a foreclosure case and offers to pay me $3,000 if I transfer the deed to him.
A. Again, be very careful. Investor will normally not make any of the mortgage payments and will rent the house out for as many months as possible. The investor makes a profit but the amount of debt you owe the mortgage lender continues to grow each month. By the time the house is finally foreclosed you could possible owe the lender twice as much as what it sells for, creating a huge deficiency.
Q. What about a Chapter 7 bankruptcy?
A. With a Chapter 7 bankruptcy you may be able to discharge all of your unsecured debt. Also, if you have decided to surrender your house, you can have the secured debt discharged as well. In the alternative, when you discharge your unsecured debt you may possibly save enough money to be able to reinstate your loan or qualify for a loan modification.
Q. What about a Chapter 13 bankruptcy?
A. With a Chapter 13 bankruptcy you may be able to restructure your debts and save your home. Also, you may be able to get a loan modification in the bankruptcy case.
Q. Can a lawsuit or debt collector continue to harass me after I file bankruptcy?
A. No. When a bankruptcy is filed an automatic stay is put in place that stops all lawsuits and collection activity. If a creditor does not stop, you may be able to have them sanctioned for violating the stay.
Q. Can credit cards and medical bills be discharged in bankruptcy?
A. Yes, in many cases the entire debt may be able to be discharged.
Q. Will I lose my home in bankruptcy?
A. It depends. If you are current, no you will not lose your home. If you are behind on your mortgage, you can use the bankruptcy to get caught up on the arrears.