Law Office of Octavio L. Martinez

Attorney at Law

Foreclosure Defense


What is foreclosure?

Foreclosure is the legal process by which a mortgagee, usually a bank, seeks to recover the property, in order to satisfy the debt resulting from the borrower’s failure to make his/her mortgage payments.  In Florida, this process requires the filing of a lawsuit, a determination by a Judge, and ultimately a public foreclosure auction sale. 

How long does the process take?

Usually after 3-4 mortgage payments are missed, the bank places the mortgage into foreclosure status.  However, it may be several more months before the bank actually assigns an attorney to file the foreclosure lawsuit.  Once the foreclosure lawsuit is filed and served on the homeowner, the homeowner has 20 days to respond to the Complaint, or a default will be entered against the homeowner.  Thereafter, depending on what defenses, if any, the homeowner raises, and how aggressive the bank is in pursuing a final determination from the Judge, the process can take from a few months to over a year.

What if I just walk away from my home/mortgage?

If a homeowner stops making payments and moves out of the home, the bank will still have to go through the foreclosure process.  During the process, the homeowner’s credit rating will show the loan as delinquent.  The property will ultimately be sold at a foreclosure sale.  A third party may purchase the property, or the bank may become the owner of the property.  When the bank becomes the owner, the property is termed to be an REO.  The bank will then sell the property.  If the amount of money the bank recovers from the sale of the property is less than the amount the homeowner owed, the bank may seek to recover the difference through a deficiency judgment.  In other words, the homeowner may still owe the bank money.  Furthermore, if the property had a second or third mortgage, those lenders are entitled to file their own lawsuit against the homeowner to recover the monies owed to them.

What is a loan modification?

A loan modification is a permanent change in one or more of the terms of a borrower’s loan.  The goal is to restructure the loan so that the new payment is one the borrower can afford.  The Home Affordable Mortgage Program (HAMP) is a loan modification program introduced by the U.S. Department of the Treasury.

What is a short sale?

A short sale is the sale of a property to a third party, for a sale amount that is less than what is owed to the bank(s).  The bank(s) having mortgages on the property must approve the short sale.  The incentive for the homeowner in conducting a short sale is to avoid the foreclosure judgment, and many times, the bank will forgive the balance of the monies owed.  Therefore, the homeowner avoids the possibility of a deficiency judgment.




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