Foreclosure Defense

Are you one of the many Floridians facing foreclosure? Are you confused by the legal process and worried about losing your home? Smothers Law Firm will fight to protect your rights. We are skilled in all areas of the pre-foreclosure and foreclosure process. These areas include the defense of a foreclosure lawsuit, negotiation of a deed in lieu of note with the lender, negotiation of a short sale with the lender, protection against a deficiency judgment, and the preparation and execution of a forced deed in lieu of note. Smothers Law Firm realizes that each homeowner’s situation is unique. Contact us today for a free consultation so we can discuss your specific legal needs and goals.

Our Approach to Your Success:

Smothers Law Firm wants to help you exercise your legal rights so you have a fighting chance to keep what is rightfully yours, or at the very least to minimize the financial damage that you could sustain in a foreclosure lawsuit. Given the unique nature of each homeowner’s situation, we will customize our legal strategy to best meet your goals. Smothers Law Firm is committed to what is best for you and your family.

Foreclosure Basics:

Under Florida law there is only one way for lenders to foreclose on a mortgage; they must do it through the court system. The foreclosure process begins with the filing of a lawsuit in the Circuit Court in the county where the property being foreclosed is located.  If a bank files suit against you, you should contact an attorney immediately, as you have twenty (20) days to respond.

A foreclosure action is a lawsuit, thus the borrower (defendant) must be served with notice of the lawsuit and must be given an opportunity to appear and defend his or her rights. The lender (plaintiff) will attempt to show that the borrower is in default, and that foreclosure is therefore necessary under Florida law. The Florida statutes that regulate foreclosures can be found at Chapter 702.  (click here for a link to the statute). While the statutes are the backbone of Florida foreclosure law, most of the law on the subject is found within cases that have been decided before Florida’s judges.

The Mortgage and the Note:

When you purchased your home you signed many documents at closing. Two of the most important of those documents were the Mortgage and the Note. Black’s Law Dictionary (8th Edition) defines a Mortgage as follows: “A lien against property that is granted to secure an obligation (such as a debt) and that is extinguished upon payment or performance according to stipulated terms.” In other words, the Mortgage is the document that you signed at closing that gives the lender a secured interest in the property. The Mortgage is security for the lender in the event that the borrower does not pay the Note. The terms of the Note spell out certain obligations and rights of both the borrower and the lender. In more simple terms, the Note is your promise to pay the lender and the Mortgage is the tool that the lender uses to take your property in the event that the Note is not paid according to its terms.

Borrower Rights in a Foreclosure Lawsuit:

Once the legal process of Foreclosure has begun, the borrower is accorded rights from the mortgage, state law, and federal law. One of the most important rights is the right of redemption. Redemption is the right of a property owner or other interested party to redeem his/her real estate from foreclosure or tax sale by paying off the debt in full,: including all penalties, arrears, property taxes, attorney fees, HOA fees, property insurance and any other fees advanced by the lender.

Under Florida law, the right to redemption is inherent in any mortgage. Any person having an interest in the mortgaged premises who would be adversely affected by the Foreclosure in entitled to redeem. A person or entity with the right of redemption may redeem the mortgaged property at any time before the issuance and filing of the certificate of sale or in the time period specified in the final judgment of foreclosure.

Loan documents may also contain provisions that provide for various rights such as a right to reinstatement, choice of law, and limitations on borrower’s liability. A borrower has a right to defend a foreclosure action to enforce these provisions and to protect their property rights. Smothers Law Firm can give you proper guidance and analysis related to your rights.

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