If you’ve been having trouble making payments on your mortgage for one reason or another, you may find yourself being served a Motion for Summary Judgment. So what does this mean for you and your home?

A Motion for Summary Judgment is, as it says, a motion filed by one party seeking judgment on another. This, in layman’s terms, generally means that there is evidence showing that one side is entitled to the win because of an existing law. When a mortgage holder files a Motion for Summary Judgment, they are requesting to take possession of the house. If the bank wins the Motion for Summary Judgment, it allows them to set a date for the sale of your house to recoup their investment due to your defaulted payments.

This can be a very serious situation, and it is vital that you handle it properly. You have twenty-one days to respond to this Motion of Summary Judgment. You’ll want to file your response before it is set for a hearing. However, there are specific requirements to the respond that will be accepted by the court. As any mistakes can lead to the irreversible sale of your home, it is important to consult with a qualified attorney in these proceedings – especially if you are intending to fight the judgment and retain the rights to the home.

Regardless of whether you will be attempting to keep the house or not, these are very serious matters that can affect your credit worthiness for years to come, making it harder to find living arrangements in the future. It is always best to get help from a professional attorney who specializes in this particular area of law.

Stephen K. Hachey, a Florida foreclosure attorney, can help your wade through this process and determine a positive solution. Contact him at 813-549-0096.

The opinions in this post are solely those of the author. The author takes full responsibility for the content. Like all blog posts, this is offered for general information purposes and does not constitute legal advice.

When you signed the daunting pile of paperwork during the closing on your home purchase, one of those pieces was a promissory note. A promissory note provides evidence of you borrowing money from your lender – most likely a bank, but this can be a private individual as well. These notes, due to their nature of ownership, can be stored in many places such as a safety deposit box, a file folder in a bank, or even someone’s garage. This leads to them being frequently misplaced or lost.

During the foreclosure process, this note is required to show proof of the debt. If your lender loses this documentation, will they still able to file a foreclosure?

The simple answer is yes, they can. The court will require that the lender signs an affidavit of lost promissory note before they can proceed.

Now what if your lender has attempted to file a foreclosure suit before with the original promissory note, but was dismissed? Are they still able to re-file claiming a lost promissory note?

Yes – as mentioned earlier, documents are likely to be lost, especially during a shuffle back and forth between the lender and the court. If the lender feels they have built a stronger case regarding your mortgage debt, they are allowed to re-file the claim regardless of the previous outcome.

In any situation, it is best to consult a licensed, experienced attorney who can help you navigate this tricky process.

Stephen K. Hachey, a Florida foreclosure attorney, can help your wade through this process and determine a positive solution. Contact him at 813-549-0096.

The foreclosure process comes with a lot of different actions, paperwork, and notices. For the average person, all the paperwork and hearings can be confusing – and at times, frustrating. One of the actions that you may see during the course of your foreclosure is the judicial default. Technically speaking, the definition of a judicial default is, “a binding judgment in favor of either party based on some failure to take action by the other party. Most often, it is a judgment in favor of a plaintiff when the defendant has not responded to a summons or has failed to appear before a court of law,” according to the online foreclosure glossary.

A judicial default, simply put, is a default issued by a judge.

What does a judicial default mean for you? A default judgment, when in regards to mortgage defaults, can end a foreclosure case, allowing the sale of the defendant’s house or property in a public auction. Typically, you will receive a 10 to 30 day notice of the lender’s (your bank/mortgage company) aim to file the foreclosure action with the court. You have a period of 20-30 days from the date of the notice to react. Depending on your response, the process could take anywhere from 30 days to several months to be completed. Most likely, you’ll have a minimum of two months from the first notice to the date of the sale. However, if you contest this process, expect the amount of time to double.

Stephen K. Hachey, a Florida foreclosure attorney, can help your wade through this process and determine a positive solution. Contact him at 813-549-0096.

You worked hard to be able to purchase that home or condo. You sign your papers, you move in… And then tragedy strikes. You get sick, injured, or suffer the hit of cut-backs at work. You’re unable to pay your home owners association fees, and before you know it, you’re missing mortgage payments. Then it comes – the foreclosure notice.

So what happens next?

Foreclosures and Home owners association debts are not one-size fits all. The next stage in the process depends on who handles the fees owed to the home owners association. If you are trying to keep your home or condo, you will want to settle the fees yourself, to prevent anyone else – such as the HOA – from being able to take ownership by filing for a lien. If saving your home is not an option – and the foreclosure stands – there are two things that could happen next. If the bank pays the home owners association’s fees, then that amount will be added to the Deficiency Judgment filed by the bank after the foreclosure sale takes place. This is the most likely situation, as the bank will need to pay the fees in order to obtain a clear title from the Association. In the second scenario, the Association can file a suit for foreclosure and take possession of the property through a lien.

Every situation in the foreclosure process is different and it’s hard to say exactly how your case will be handled. In these circumstances, it is best to consult with a local, experienced real estate attorney that specializes in foreclosures. A qualified professional will be able to walk you through the process and make sure you are fully protected during the course of the foreclosure.

Stephen K. Hachey, a Florida foreclosure attorney, can help your wade through this process and determine a positive solution. Contact him at 813-549-0096.

Having to endure the foreclosure process can be a difficult experience. You’ve had to relinquish your home, find new lodging, and tolerate months of paperwork and phone calls from the bank. Just when you think it’s all over, suddenly you hear the term deficiency judgment. A deficiency judgment is a judgment against a borrower whose mortgage foreclosure sale did not make enough money to cover the underlying promissory note.

So, what does this mean for you? You, the borrower, could possibly owe money after your foreclosure process is over. If the bank cannot sell the house for enough money to cover what you borrowed to purchase it, then they can come after you for the remaining balance.

If your loan was sold to a servicer, or a debt-collector, you may still find yourself facing a deficiency judgment. Regardless of the bank name listed on the court documents, they are still in good standing to collect the judgment against you. If you owned a condo, there are some differences – but the ultimate responsibility will still fall to you. The condo association – or trustee – will be named as the owner of the property, however you will be entitled as the borrower; putting the financial obligation on your shoulders.

If you are facing foreclosure, or have already begun the process, it is best to seek out an experienced lawyer. They will be able to foresee any liabilities you may still have to a HOA or condo association, negotiate a waiver to the deficiency claim, or defend you against a claim that has been already filed.

Stephen K. Hachey, a Florida foreclosure attorney, can help your wade through this process and determine a positive solution. Contact him at 813-549-0096.

When you are in a foreclosure case you may hear different words and phrases like “dropping a party”, “voluntarily dismissing the case” and “releasing the lis pendens”. You may find yourself questioning what these phrases mean and if they mean the same thing. The answer is that they all mean something different. Here is the breakdown:

Dropping a party: If you hear or read this line the first thing you need to find out is who is being dropped. Often times, the plaintiff includes placeholder defendants or collateral defendants involved who are later dropped. This defendant is most likely being dropped because they are no longer required to bring suit successfully.
Voluntarily dismissing the case: This simply means that the plaintiff is voluntarily terminating the lawsuit. The plaintiff can request a dismissal as long as the defendant has not filed an answer or filed a motion for summary judgement. If the defendant has filed an answer or a motion, the dismissal is only proper under two circumstances: if all defendants stipulate to dismissal, or if the judge who is overseeing the case rules for dismissal.
Releasing the lis pendens: A lis pendens is when someone has a claim and they have filed a notice in the public records. A release of the lis pendens means that a cancellation has been filed which negates the lis pendens notice.

Knowing these terms and phrases will help you better understand what is going in in your case. In a foreclosure case, dropping a party, voluntarily dismissing the case, and releasing the lis pendens are not the same.

Stephen K. Hachey, a Florida foreclosure attorney, can help your wade through this process and determine a positive solution. Contact him at 813-549-0096.

If you have signed a Quitclaim Deed as a result of divorce, or any other reason, that means that the owner of the property, the “grantor”, removes any legal interest and gives it to the recipient, the “grantee”. By doing this, the grantor terminates their right to claim the property, so naturally the rights transfer to the grantee. If you are the grantor and have signed over the right to claim the property and receive a foreclosure compliant the first thing you should do is consider hiring an attorney. You may say you can’t afford one, but think about the cost of what you can loose.

Although you have given up your rights on the property, the Quitclaim does not remove your liability for the mortgage. If your ex-spouse, or grantee, is not paying the mortgage then the lender will go after anyone else listed on the mortgage. So, even though you have removed your rights and main financial responsibility to the property, the lender will go after any person that may have an interest in the property in order to ensure that their own interests are extinguished through the foreclosure process.

Since you were married, or involved, when the loan was taken out, you were, at the least, included on the mortgage, and quite possibly the loan. The best way to handle this situation is to consult an attorney and determine your exposure. You need to take care of this as soon as possible or the situation may get more complicated and it could possibly take longer to rid yourself of the issue.

Stephen K. Hachey, a Florida foreclosure attorney, can help your wade through this process and determine a positive solution. Contact him at 813-549-0096.

Even the faintest hint of a foreclosure is enough to give any homeowner nightmares. For the homeowner that has missed mortgage payments, the idea of foreclosure is even more frightening. After receiving notice after notice concerning default payments and defending threats of an impending foreclosure for as long as possible, it is easy to understand why a homeowner would think they have a golden ticket out of harm’s way in the form of a mortgage forgiveness letter. However, as the saying goes, not everything that glitters is gold.

In some cases, homeowners have received letters from their lender stating that the mortgage has been forgiven and/or that the foreclosure case has been dropped. Now, it is entirely possible that the lender may not have had a solid foreclosure case against the homeowner, and decided not to invest in the fees and court cases associated with pursuing a foreclosure to the maximum extent. If this is the case, it is certainly realistic that the lender would inform the homeowner that the foreclosure is not moving forward.

However, it is highly important that any communication sent by a lender to a homeowner is independently evaluated for accuracy. Many homeowners are weary to trust banks, and may automatically want to verify that what the lender says is true. For those homeowners eager to accept the lender’s statements as true, it is crucial to be skeptical when it comes to the status of your home.

The only way to know with 100% certainty if the lender has discharged your debt is if you receive a satisfaction of mortgage from your lender and it gets recorded in the public records. It is important for homeowners to understand that lenders are swamped with potential foreclosures and could easily make a mistake in informing the wrong homeowner with good news. If the lender does not easily comply with your demands for proof of its claims, you will want to consult with an attorney to ensure that the lender’s letter is valid and to obtain the proper documentation to prove the lender has forgiven the mortgage. Once the satisfaction of mortgage is recorded, then, and only then, the homeowner can finally rest easy.

Stephen K. Hachey, a Florida foreclosure attorney, can help your wade through this process and determine a positive solution. Contact him at 813-549-0096.

A court decision issued last year has serious implications for Florida homeowners. In U.S. Bank v. Bartram, decided last April, the Fifth District Court of Appeals held that each default that occurs after a failed foreclosure attempt creates a new cause of action for the lender for statute of limitations purposes. This is true even where acceleration has been triggered and the first case is dismissed for lack of merit.

For homeowners, this means that if a lender’s foreclosure action is dismissed, and five years pass, the lender can still bring another foreclosure action as long as the borrower defaulted sometime after the first action was brought. According to the Bartram decision, the statute of limitations will no longer prevent a new action from being initiated against the homeowner. This is the first time that a Florida appellate court clearly stated that each default triggers a new cause of action for foreclosure.

In Bartram, the Bank’s initial foreclosure action was involuntarily dismissed, and Bartram argued that because more than five years had passed since he had defaulted, the statute of limitations barred the Bank from now enforcing its rights under the note and mortgage. However, the appellate court concluded that, despite the amount of time that had passed since the Bank’s foreclosure action, the Bank was not prohibited from then enforcing its rights under the note and mortgage, so long as Bartram defaulted sometime after the first action was initiated.

For homeowners, Bartram unfortunately favors lenders and will not allow homeowners to breath easy, even after seemingly fighting off a foreclosure. It appears that this decision will result in lender’s continuing to pursue homeowners for debt owed, even after the homeowner successfully eludes an unfavorable foreclosure judgment. Further, this decision will likely speed up many outstanding foreclosure cases in Florida, where the statute of limitations is at issue.

If you have defaulted on a payment to a lender and are concerned about foreclosure, it is more important than ever to have a qualified attorney on your side. Even when you think you are free from foreclosure, lenders can continue to pursue your home if you default again. Do not try to attempt to save your home single handedly; an experienced attorney will be able to create a unique plan for your case and can guide you in handling your lender’s demands.

Stephen K. Hachey, a Florida foreclosure attorney, can help your wade through this process and determine a positive solution. Contact him at 813-549-0096.

Although a foreclosure may seem like one of the worst events you can face as a homeowner, the nightmare may not end with the lender’s sale of your home. In the aftermath of many foreclosures, many borrowers learn that a discrepancy exists between the home’s sale price and the amount owed by the borrower to the lender. This is called deficiency exposure.

Deficiency exposure is computed by deducting the value of the collateral property at the time of the sale from the total debt owed by the borrower to the lender, calculated by including all costs, advances (such as for taxes and insurance), attorneys’ fees, etc., which the creditor expended. Under current Florida law, the creditor has one year from the finalization of the sale (the statute is unclear as to whether that counts from the issuance of the certificate of sale, or the certificate of title, which comes later) to pursue a deficiency judgment against the borrower when there remains a deficiency exposure after the sale of the home.

A lender can pursue collecting the deficiency exposure through a deficiency judgment granted by the court. This can happen simply by the lender filing a motion in the current foreclosure case, which would only need to be served to you by mail at your last known address. The lender can also try to collect a deficiency exposure by obtaining a deficiency judgment through filing a new lawsuit against you. This seems to be a popular trend in the real estate market right now, as there are many cases being filed in order for lenders to collect deficiencies. In a majority of these cases, infamous lender Fannie Mae has sold its deficiency claim rights to debt buyers, who are pursuing the borrowers for payments, treating it as part of the vicious debt collection process.

If you are undergoing a foreclosure or are concerned about foreclosure, it may be possible that your lender is able to continue to come after you if money is still owed after the sale of the home. If you end up with a deficiency exposure, you do have options available to you. First, you can defend yourself against the lender’s claim. Certain events, such as a creditor’s refusal to mitigate damages via a short sale, modification or deed in lieu of foreclosure, would be material to that defense and may assist you in fighting the claim for a deficiency judgment. Another option may be for you to file bankruptcy in order to discharge the deficiency exposure. In many cases, bankruptcy might be the cheapest and most definitive solution in the right situation, but comes with another set of issues.

Before taking any action, it is best to consult an experienced attorney who can analyze your specific case and suggest alternative defenses or plans of action. The foreclosure process is one governed by a strict timeline, so the sooner you consult with an attorney, the easier it will be to set a course of action. Do not wait for your creditor to make the first move against you. Prepare yourself for any possible attack against you and your home by having an attorney on your side.

Stephen K. Hachey, a Florida foreclosure attorney, can help your wade through this process and determine a positive solution. Contact him at 813-549-0096.

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