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 […]
Lenders sometime receive requests for a payoff amount during a foreclosure. This is because borrowers can reclaim their interests in property subject to foreclosure by paying off the balance of their loan, at any time before the clerk of the court files a certificate of sale (which is often referred […]
In Florida, foreclosure actions must be brought in the county where the land is located. This is typically referred to as the “local action rule.” However, lenders often wonder where they should file the foreclosure action if the loan is secured by mortgaged land situated in different counties. Luckily, the […]
Florida’s Construction Lien Law found in Chapter 713, Florida Statutes, may seem like an area of the law that is only relevant to contractors and property owners. However, there are important aspects of the Construction Lien Law that can directly affect the rights and obligations of lenders in numerous ways. […]
In Florida, mortgage foreclosure lawsuits are filed in the county where the property is located. Although Florida foreclosures are governed by Chapter 702 of the Florida Statutes, foreclosing lenders must also check the local rules of the court where the lawsuit is filed to make sure that they comply with […]