How to Publish a Legal Notice of a Foreclosure Sale

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 the responsibility of the [foreclosing lender] to place such advertisement, publication, or notice.” Fla. Stat. § 702.035. Since publishing a legal notice concerning a foreclosure action is inevitable, it is imperative for lenders to know how to do so properly.

When is a Foreclosing Lender Required to Publish a Legal Notice?

All foreclosing lenders are required to publish the date of the public auction in a newspaper in the county where the sale is to be held. Fla. Stat. § 45.031(1)(a). The notice of sale must include:

(a)  A description of the property to be sold;
(b)  The time and place of sale;
(c)  A statement that the sale will be made pursuant to the order or final judgment;
(d)  The caption of the action;
(e)  The name of the clerk making the sale; and
(f)  A statement that any person claiming an interest in the surplus from the sale, if any, other than the property owner as of the date of the lis pendens must file a claim before the clerk reports the surplus as unclaimed. Fla. Stat. § 45.031(2).

In addition to the foreclosure sale date, foreclosing lenders may be required to have other legal advertisements, publications, or notices relating to the foreclosure action placed in a newspaper. For example, a lender may have to serve a defendant “by publication” in a foreclosure lawsuit by publishing a notice of a foreclosure lawsuit in a newspaper where the court is located, if the defendant cannot be located by diligent search and inquiry. See Serving a Defendant in a Residential Foreclosure Action by Publication.

Who is Responsible for Having the Legal Notice Published?

It is the responsibility of the petitioner, such as the foreclosing lender, or the petitioner’s attorney to have the legal notice published in the newspaper. The legal notice must be placed directly by the petitioner’s attorney, by the petitioner if unrepresented by an attorney, or by the clerk of the court. Fla. Stat. § 702.035.

Does It Matter Which Newspaper the Notice is Published?

Yes, it matters which newspaper is used to publish the legal notice. The newspaper depends on the population of the county where the notice is being published. If the county has a total population of more than 1 million as reflected in the Official Decennial Census of the United States Census Bureau, as shown on the official website of the United States Census Bureau, the newspaper must be entered as a periodical matter at a post office in the county in which the newspaper is published, and has been in existence for one year, or is a direct successor to a newspaper that has been in existence for one year, and is published a minimum of five days a week. Fla. Stat. § 702.035.

How Often Does the Notice Have to Be Published?

Lenders are required to publish the date of the public auction in a newspaper once a week for two consecutive weeks, and again five days before the sale date. Fla. Stat. § 45.031(2). To properly serve a defendant by constructive service, foreclosing lenders must publish the notice of action in a newspaper once a week for two consecutive weeks. Fla. Stat. § 49.10(1)(c).

Who Covers the Cost of Publication

Lenders may charge the actual costs of the legal publication to the loan in the foreclosure action. Fla. Stat. § 702.035.

Conclusion

All foreclosing lenders will be required to publish a legal notice concerning a foreclosure action in a newspaper. At the very least, lenders will be required to have the date of the foreclosure sale published. Based on this, it is important for lenders to make sure it knows how to have a legal notice concerning a foreclosure action published properly.

Authors:

• Austin B. Calhoun, Esq.
• Melissa G. Murrin, JD Candidate

Continued reading:

• Bringing a Residential Foreclosure Action? You Need a Verified Complaint
• Certification of Original Promissory Note is Required To Bring a Mortgage Foreclosure Action
• Serving a Defendant in a Residential Foreclosure Action by Publication
• Cancelling and Rescheduling Foreclosure Sale Now Requires a Motion
• A Proper Final Judgment of Foreclosure: Form 1.996(a)
• Lenders May Still Have to Participate in Foreclosure Mediation in Florida
• Filing a Foreclosure Lawsuit? Make Sure You Check the Local Rules