What is a Foreclosure?
Foreclosure is the legal process in which a lender attempts to recover the balance of a loan from a borrower who has stopped making mortgage payments to the lender by forcing the sale of the asset used as the collateral for the loan.
Reasons people end up in foreclosure are due to personal hardships such as illness, divorce, unemployment, too much credit card debt, or the home is underwater.
After 90 days of not paying your mortgage you will receive a notice of default also known as an acceleration letter. Once you receive this letter in the mail, your case has been transferred to a law firm that represents the bank. At this point in time, the bank may no longer speak to you and you will have to deal with the bank’s attorney.
Attorneys that represent the bank are not there to help you. They do not want you to stay in your home for a long time without paying the bank. They do not get paid to help you do a loan modification or short sale. They only get paid to assist the bank in foreclosing on your property. The bank may send you letters but they have little interest in helping you keep your home unless you push for loss mitigation.
Under Florida law, a foreclosure begins when the lender makes public notice that they intend to initiate a legal proceeding; this is called a lis pendens which is filed in the county where your home is located. When a sheriff or process server knocks on your door and serves you with the legal documents from the attorney’s office representing the lender the lawsuit has begun.
From the moment you are served the Complaint, you have 20 calendar days to file an answer. The 20 days are not calculated solely by counting 20 business days. Weekends are included when calculating the 20 days. At this point you must answer the complaint or waive your legal rights. You must respond to the complaint in an adequate legal matter with your affirmative defenses. If you do not respond to the complaint within the 20 days, the lender will obtain a default judgment against you. If a default judgment has been entered against you; you may lose your home and you may not get your day in court. As a result of the default, the lender may get a final judgment. The lender will then publish a notice of sale two weeks prior to the sale date. The house will then go up for auction, be sold, and you will get evicted.
The worst thing you can do if your home is in a foreclosure proceeding is to do nothing. Your rights are at stake! Do not let the lender take away your home, make the lender prove their case in court.
Losing your home is not all that you are at risk of loosing. Your troubles may not end after the home is foreclosed on. If your house sells for less than what you owe the bank, the lender may get a deficiency judgment against you from the court. That means that the lender can go after you to collect the difference from what you owe to what they recovered from the sale of the house. The lender may seek to garnish your wages or seize your assets to recover the judgment. They have one year to seek that deficiency judgment. Once it is perfected, they have 20 years to go after you for the money. Do not think that the bank will forget about collecting on that deficiency judgment. The banks have time and unlimited resources. They may not go after you right away or the bank may wait until you are back of your feet, have income, and then seek to collect the judgment amount from you.
What are Your Options?
When facing a foreclosure your options are as follows:
Sell the property
Deed in lieu
Fight foreclosure in court
We will explain each option in more detail and help you decide which is the best course of action for you. When selecting which course of action you want to take, you have to be very careful and understand the ramifications and consequences associated which your decision.
If I am struggling to make my mortgage payments should I ask the bank for help?
Many people try talking to the bank first and after weeks or months they realize there is not much the bank can do to help them. You can call the bank and try to ask for assistance but it is unlikely that the bank will help you if you are in a foreclosure without an attorney. The bank employees work for the bank and their sole concern is what is best for the bank.
I was served with a foreclosure lawsuit, should I ignore it?
No. Do not ignore a foreclosure lawsuit. Ignoring a foreclosure lawsuit will not only result in you losing your home, but the bank may seek a deficiency judgement. Therefore, you may end up without a home and still having to make payments to the bank. Schedule an appoint with us today to speak to an experienced foreclosure defense attorney you can help you with this process.
Should I defend the foreclosure myself?
The homeowner, whether an attorney or not, may represent themselves in a court of law without the aid of counsel. That being said, a foreclosure defense attorney has the professional knowledge and experience to protect your interests. The foreclosure process can be long and complicated, which is why hiring an experienced attorney is crucial to helping you stay in your home.
How long does the foreclosure process take?
The answer depends on many factors. If you ignore the foreclosure and don't hire an experienced attorney to fight for your rights, the bank may complete the foreclosure process and sell your home in as little as three to six months. If you hire an attorney to represent you the process may take longer than six months.
Do I need to pay my mortgage during the foreclosure process?
No. Once you have defaulted on the mortgage payments and the loan has been accelerated, the bank will no longer accept the mortgage payments. You can stay living in your home until the foreclosure process is complete or until one of the options stated above has been completed without making a mortgage payment to the bank.
Can I stay living in my home while it’s in foreclosure?
Yes. You can remain living in your home until the foreclosure sale date.
Can I rent my home while it’s in foreclosure?
Yes, but the bank will want to collect all rent payments received.
Cay I sell my home while it’s in foreclosure?
Yes. You can list and sell your property while it is in foreclosure. If you have sufficient equity and your home is not underwater you can cure the foreclosure with the proceeds from the sale of your home. If your home is worth less than the balance of the mortgage the bank has to approve the short sale before it can be sold.
Do I need a lawyer if I want to do a short sale?
It depends how far along the foreclosure suit has progressed. If the foreclosure is in the very early stages, than you may be able to get the short sale done before it is too late but it is prudent to have an experienced attorney assist you with the foreclosure and short sale. The other side will have an attorney working for their best interest so it is important that you have an attorney protecting your interest.
Will filing for bankruptcy stop the foreclosure or sale of my home?
Yes. Once a bankruptcy is filed, a stay order will be entered resulting in the halting of the underlying foreclosure proceedings.
How can I afford an attorney if I cannot afford my mortgage?
The attorney fees at Andreacchi Law Firm will be significantly less than your monthly mortgage payments. Please call us to discuss our affordable monthly payment plan. You will discover that you will be able to afford to hire an attorney to defend you through the foreclosure process.
Should I continue to pay the HOA dues while my home is in foreclosure?
Yes. It is important to continue to pay your Home Owners Association (HOA) dues because the HOA will file for foreclosure against your property if you stop making the payments and they can often complete the foreclosure process a lot quicker than the lender Bank.
AUTOMOBILE ACCIDENT FAQ
What to do after an automobile accident:
If you are involved in an automobile accident there are certain things you can do to protect yourself and your interests. Follow these steps even if you think that the accident is minor or if you do not want to file a claim against the insurance company. Many times an accident starts off as a simple process but turns into a complicated and expensive litigation battle. That is why you should protect yourself by hiring an attorney as soon as possible.
1. STOP. Never drive away from the scene of an accident, even a minor one. You may be criminally charged if you leave the scene of an accident.
2. CHECK FOR INJURIES. Check to see if you or your passengers are injured. If you or your passenger is injured remain in the vehicle and call an ambulance. Standing up immediately after an injury can cause your injury to worsen. If you feel that you can safely exit the vehicle, check to see if the driver or passengers of the other vehicle are injured; if so, call an ambulance.
3. CALL THE POLICE. Even if there are no serious injuries, it is a good idea to call the police. You may need a police report to file a claim with your insurance company, even if it is just to make a claim for damage to your vehicle. The vehicles involved in the accident should remain where they are, unless they interfere with traffic. There are times when the other driver may quickly admit fault and promise to pay for your vehicle and medical expenses. Report the accident anyway as often times the other driver will change his or her mind and later deny being at fault and won't responsibility for the damage they caused. Do not trust the other driver.
4. MOVING THE VEHICLE. If possible it is best to leave your vehicle in place until the police arrive. However, if it is dangerous to leave the vehicle at the scene until the police arrive it is possible to move your vehicle to a safe location. Take some pictures of the scene of the accident and vehicle location prior to moving the vehicle. Those pictures may become necessary to prove fault at a later time.
5. MAKE AN ACCURATE RECORD. When the police arrive, make sure you tell the investigating officer(s) exactly what happened, to the best of your ability. If you do not know certain facts, tell that to the officer. Do not speculate, guess or misstate any of the facts.
6. DO NOT SAY YOU ARE NOT INJURED AT THE SCENE OF THE ACCIDENT. If you are asked if you are injured and you are not sure, say you are not sure, rather than no. Often, the pain and injuries from motor vehicle accidents become apparent hours after the actual collision. If you feel pain, even slight pain, that can be a sign of an injury. It is important to not say you are not injured when you may be injured but not realize it due to fear or adrenaline.
7. TAKE PICTURES. If you have a camera in your vehicle, or a cell phone equipped with a camera, you should take pictures of the vehicles if there is visible damage. If you have visible injuries, you should photograph them as well. Take pictures of the position of the vehicles, damage of all the vehicles involved (not just your vehicle or the vehicle you believe is at fault) the accident scene, bleeding and any bruising.
8. EXCHANGE INFORMATION. Typically, the investigating police officer obtains this information. However, if the police do not respond to the accident, you should obtain the name, address and telephone number of all persons involved in the accident, drivers and passengers alike. You should also obtain information about insurance by asking to see the insurance card for all vehicles involved in the accident. Furthermore, write down license plate number, location of accident, and the make and model of all the vehicles involved. Ask the police officer for his or her name, badge number, name of police department he or she works for and police report number.
9. DO NOT ADMIT FAULT. You should not apologize for anything at the scene. For example, if you say, "I'm so sorry" you may be admitting legal liability for what happened. Immediately after an accident, it might not be clear who was at fault or more at fault. Keep you conversation with the other driver to a minimum. You don’t want to say anything that could be used against you during the insurance claims process or police report.
10. WITNESSES. If there are witnesses, you should get contact information from them as well so that you or your attorney can contact them in the future. Don't expect your attorney or the police to be able to magically get the witnesses information later. If you do not get the witness contact information at the scene of the accident that witness may never be found on a later date. Witnesses are always important, even if you believe the accident is clear cut. Get the witness name, phone number, email address and address.
11. REPORT THE ACCIDENT. Notify your insurance company as soon as possible. Many policies require immediate reporting and full cooperation. If you fail to meet the reporting deadline the insurance company may refuse to pay the benefits for that car accident. Find out if you have medical benefits as part of your insurance coverage. When speaking to the insurance company remember the phone call may be recorded and used against you on a later date.
12. SEEK MEDICAL ATTENTION. Often, injuries caused by motor vehicle accidents are not immediately apparent. Most people report feeling the most pain a day or two following an automobile accident. Unless you are absolutely certain you were not injured, you should seek medical attention at your local emergency room or by seeing your family physician. Even in accidents involving minor impact, you can sustain a serious and permanent injury to your spinal cord. If you lost consciousness or were dazed for even a short period of time following the collision, you may have suffered a concussion or closed head injury. When it comes to your health and well-being it is better to be safe than sorry.
13. KEEP ALL DOCUMENTS. Keep all your accident-related documents and information together. This information should include a claim number, the claim's adjuster who is handling the claim, names and phone numbers of all contacts, receipts for a rental car and other expenses incurred as a result of the accident.
14. TRACK YOUR MEDICAL TREATMENT. Note any doctors, physical therapists, chiropractors, or other medical professionals that you receive treatment from, and each medical provider that referred you to other caregivers. Keep receipts of all out of pocket expenses including for medical services.
15. BE CAREFUL WHO YOU SPEAK TO. Do not talk to anyone about the accident other than your lawyer, your insurance company, and the police. Don't talk to a representative of another insurance company, without the knowledge of your attorney or insurer. If called by the other insurance company, be polite, but ask them to call your attorney or insurer to arrange an interview. Also, tell your lawyer or insurer about the call.
16. BE CAREFUL ABOUT EARLY SETTLEMENT OFFERS. Be careful if you're offered a settlement from an insurance company. Don't settle a claim until you know you'll be compensated for all your injuries, and consult an attorney before signing any settlement documents.
17. SPEAK TO AN ATTORNEY. Perhaps the most important thing you should do after an accident is to consult your attorney. Your attorney can protect your rights and make sure valuable evidence is not destroyed. Often, insurance companies want to take statements immediately after an accident. It is important that you have received legal advice before providing such a statement. Your attorney can advise you on issues ranging from how to make sure you are fully compensated for your vehicle to how to make sure you are getting the best medical treatment.
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