In every foreclosure action, the foreclosing lender will be required to publish some sort of legal advertisement or notice in a newspaper (e.g. the Notice of Foreclosure Sale). “Whenever a legal advertisement, publication, or notice relating to a foreclosure proceeding is required to be placed in a newspaper, it is […]
In Florida, if a property owner (borrower) fails to pay its property taxes, the amount owing may become a lien on the property. If this happens, the tax lien will become superior to the lender’s mortgage lien. Fla. Stat. § 197.122(a). This may be troublesome for lenders because the property […]
Although a lender may have won the battle by obtaining a final judgment of foreclosure from the court, it may not win the war. Pursuant to Section 702.07 of the Florida Statutes, the circuit courts have the “power and authority to rescind, vacate, and set aside a decree of foreclosure […]
When a borrower dies, lenders are often left wondering what to do. In 2016, the Consumer Financial Protection Bureau (“CFPB”) issued a final rule—referred to as the 2016 Mortgage Servicing Rule—that clarified, revised, and amended several provisions in the 2013 Mortgage Servicing Rules. Provisions regarding potential or confirmed “successors in […]
Almost inevitably, on the eve of the foreclosure sale, borrowers file a chapter 7 or chapter 13 bankruptcy petition. Borrowers have two incentives to do so. First, borrowers may want to have the unsecured mortgage debt discharged so that they are not liable for any deficiency judgment. Second, borrowers often […]
Section 673.3091, Florida Statutes, permits lenders to enforce lost, destroyed, or stolen instruments, but only upon certain conditions. One of those conditions is that “the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the […]
It is not uncommon for a borrower to file for bankruptcy before or during a foreclosure lawsuit, or most commonly, upon the eve of the foreclosure sale. When a borrower files a voluntary petition under the Bankruptcy Code, Section 362(a) of the Bankruptcy Code provides an automatic stay of most […]
In Florida, foreclosures are judicial. This means that a lender must file a foreclosure complaint with the court, and the borrower will be given an opportunity to file defenses to stop the foreclosure. Some of the common defenses to foreclosure include: lack of standing; failure to provide required notice of […]
Lenders can often expedite a foreclosure by moving for an order to show cause under Section 702.10, Florida Statutes. There are two types of orders to show cause. The first directs the defendants to show why a foreclosure judgment should not be entered. § 702.10(1), Fla. Stat. (2020). If the defendants […]
In Florida, all mortgages are foreclosed in equity. Fla. Stat. § 702.01. Based on this, there are a few things lenders should be aware of before foreclosing on a mortgage: there is no right to a jury trial, the borrower has a right of redemption, the borrower is entitled to […]