08
The Foreclosure Process
[The following is being provided for informational purposes only and should not be deemed legal advice]
1. You missed several mortgage payments.
2. The bank files a Complaint.
3. You must file a response and serve a copy on the attorney for the bank within 20 days from which you are served, not from the date the Complaint was filed.
4. It is important that you file a response if you are served with a foreclosure Complaint. If you fail to respond a default will be entered against you. When a default is entered you are deemed to have admitted the allegations in the Complaint. That means that you are addmitting all the facts that will entitle the bank to foreclose on the property.
5. You own the property until it is actually sold at a foreclosure sale. So even after a foreclosure is filed you can still sell your property or refinance your loan. In some instances, the bank will take a deed in lieu of foreclosure. That means they will accept a deed to the property as satisfaction for the debt.
6. Mediation. A common complaint is that the debtor, you, cannot get a person at the bank who will give them an answer about what loan workout is available. Mediation is a process where an independent 3rd party meets with you and your attorney and the bank and its attorney. The bank representative is usually allowed to attend by phone but that representative must have workout or settlement authority. The mediator’s job is to help you and the bank reach an agreement. Themediator cannot force either party to agree but the mediator is trained to help the parties reach their own agreement. If you ask for mediation the judge will almost always order it.
7. Most foreclosures are accomplished by what is called a Summary Judgment. In short this is a hearing, usually after a default has been entered, where the bank presents the original note and mortgage to the Court and sworn statements as to the amount due under the mortgage, the attorney fees expended and the Court costs. The Court may then enter a Summary Judgment of Foreclosure.
8. If you disagree with the facts set out in the bank’s affidavits, then to avoid the summary judgment you must file your own affidavit – a statement sworn to in front of a notary, stating the facts as you know them. The judge will not take the testimony from witnesses at the summary judgment hearing. If the judge finds from the affidavits that there is a dispute issue of fact, which is material to the foreclosure, the judge will deny the summary judgment.
9. If a judgment of foreclosure is entered, the next step in the process is the sale of your property. Under Florida Law the property must be sold no sooner than 20 days and no later than 35 days after the judgment of foreclosure. In most instances, if you are still trying to work out your loan, do a refinance or a short sale, the bank will agree to a sale date of from 60 to 90 days after the judgment but they are not required to do this.
10. The sale of your property takes place in the courthouse. Usually the bank buys the property but that is not always the case.
11. Even after the sale the bank will sometimes do a work out of the loan. So if you want to save your home keep at it even after the sale.
12. The worst that can happen is when 10 days after the sale the clerk of the court issues a “Certificate of Title” to the buyer. The certificate of title is legal document giving title to the buyer. That is an important event because at any time after that date the clerk is authorized to issue a writ of possession. The Writ of Possession is a piece of paper that sheriff tacks on the door of a foreclosed property. When the sheriff posts a Writ of Possession on your property you have 24 hours to leave before the sheriff will put you and yoyr belongings out.
13. So, if you end up being foreclosed on, you should know where you are going and how you are getting there by the time of sale because after the sale, you may only have 10 to 14 days to leave voluntarily.
14. The most important thing to remember if you are involved in a foreclosure is to stay involved and not put your head in the sand. If you can afford an attorney hire one. If you cannot afford an attorney check with one of the agencies that can help you find assistance and housing and can put you in touch with other legitimate agencies that may be able to help you refinance or re-work your loan with the bank.
Matthew Sapaula gives certain steps homeowners can do to protect their nest egg and prevent foreclosure. 
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