These questions and answers will help you understand your situation, but the best way to understand it fully is to contact us for a free consultation.
If a lawsuit has been filed against you, you will receive a document called a Summons. The Summons will explain in English, Spanish and Creole that a lawsuit has been filed against you. Attached to the Summons is the complaint filed with the clerk of the court in your county. A Summons will be hand delivered to you by a licensed process server or by a sheriff.
No. You only need to leave the house after the bank has obtained a foreclosure judgment against you and a certificate of title has been issued to the bank or third party buyer. The bank will only obtain a foreclosure judgment against you after it has won a motion for summary judgment or a trial.
Once a lawsuit has been filed against you, you generally have 20 days to respond in order to preserve your legal rights. Calling or sending a letter to the bank or the plaintiff will not be enough. A good defense will deny the allegations in the complaint that are not to your benefit. However, you should not deny allegations that are to your benefit. For example, if your name is John Smith and you own the property, you want to admit the allegation “John Smith is the owner of the subject property.”
In addition to denying or admitting the allegations, it is vital to raise any and all affirmative defenses in order to preserve your legal rights. An affirmative defense to a civil lawsuit is a set of facts other than those alleged by the plaintiff which, if proven by the defendant, defeat or mitigate the legal consequences of the defendant’s otherwise unlawful conduct. If an affirmative defense is not raised in a timely fashion you risk waiving those defenses at trial.
If you choose to do nothing when a foreclosure complaint has been filed against you, the bank or note holder will obtain a foreclosure judgment against you. Once a foreclosure judgment has been obtained against you, the property will be sold to cover the amount owed to the bank at a public auction to the highest bidder.
If the property is sold for less than the amount owed, the bank will seek a deficiency judgment against you. In order to enforce the judgment the bank may garnish your wages or your bank accounts.
No, you do not need an attorney, but it is highly recommended. A person that represents himself or herself without the help of an attorney is called a “pro se” defendant. Although you have the constitutional right to defend yourself in a court of law, it is not recommended for a person that has no legal education or knowledge to defend themselves as they will not get the best outcome. The banks are represented by attorneys with many years of experience that specialize in mortgage foreclosure law. Unless the borrower has a deep knowledge of Florida Statutes, Florida Rules of Civil Procedures, Florida Rules of Evidence, and general legal procedures, it is very likely that the borrower will be unable to defend the foreclosure even if the bank has no right to foreclose.
The cost of defending a foreclosure depends on the status and the complexity of the case. Some attorneys may charge their fees by the hour, a monthly flat fee, or a flat fee to deal with the case. We charge a monthly flat fee to defend the case. How much we charge depends on the status of the case. For example, a brand new case will have a lower monthly fee than one that is going to trial next month. In addition, a commercial defense will be higher than a residential defense.
It is impossible to ascertain how long a foreclosure defense will take. The time the foreclosure process takes will depend on how aggressive the bank is in prosecuting the foreclosure, the stage of the litigation, the course of action the borrower wants to pursue, and how busy the court docket is.