A foreclosure notice to signify the end of the Florida foreclosure moratorium for covid-19

The COVID pandemic has had a devastating impact on the health and financial stability of many Floridians. In response to the COVID pandemic, Florida issued a foreclosure moratorium. A moratorium is a temporary prohibition or suspension of an activity. The foreclosure suspension was in effect for many months but recently expired. Fortunately, there may still be other options available to prevent foreclosure. To see which option may be best for your specific circumstances, contact a foreclosure defense lawyer in Tampa.

Florida COVID-19 Foreclosure Moratorium

On April 2, 2020, Governor Ron DeSantis issued Executive Order 20-94 in response to the COVID crisis. The Order suspended foreclosure actions and evictions for 45 days. Shortly before its scheduled expiration, Governor DeSantis issued an additional extension for 30 days. The Governor continued to extend the Order each month for 30 days until recently. On September 30, 2020, Governor DeSantis announced he would not be extending the order and would allow it to expire on October 1, 2020.

Florida COVID-19 Moratorium Payments

Neither Executive Order 20-94 nor any subsequent Orders release homeowners from rent or mortgage obligations. Homeowners were required to continue to pay their mortgage during the Florida COVID foreclosure suspension. Therefore, if mortgage payments were not made during this time, homeowners may be in default and at risk of foreclosure.

Florida Foreclosures Rise

According to ATTOM Data Solutions, Florida had the country’s second-highest foreclosure filing rate in August. California was the only state with more foreclosure filings in August. The foreclosure crisis has especially hit Jacksonville hard. Among metropolitan areas with populations greater than 1 million, Jacksonville had the highest foreclosure rate. According to the study, one in every 5,877 housing units in Jacksonville was in foreclosure.

Florida also led the nation in new foreclosure starts during August. Foreclosure starts were up 24 percent nationally from July. Unfortunately, the rate of foreclosure may continue to rise due to the COVID pandemic. Approximately 10% of mortgages in Florida were 30 days or more delinquent. This is significantly higher than the national average of 7.3%

CARES ACT Mortgage Assistance for COVID-19

The CARES ACT was passed by Congress earlier this year to help alleviate the financial hardship caused by COVID. Under the CARES ACT, government-backed mortgages may be eligible for a mortgage forbearance of up to 180 days. A forbearance is when your lender suspends payments for a limited amount of time. Forbearance does not forgive or eliminate payments; it only delays them. Any missed payments during the forbearance period will need to be addressed when the forbearance ends.

The CARES ACT also prevents foreclosure of government-backed loans until December 31, 2020. No foreclosure case for a government-backed mortgage may be filed until after December 31, 2020. If a foreclosure case was already filled, the CARES ACT would prevent the auction from occurring before December 31, 2020.

Florida Foreclosure Trial

Foreclosure cases in Florida are conducted without a jury. Instead of a jury, the judge will decide the outcome of the case. Homeowners will have to persuade the judge to rule in their favor. Judges are typically a lot less likely to be swayed by fairness principles than a jury would be. Judges will usually want homeowners to rely on legal defenses to prevent foreclosure. For instance, relying on a bank’s customer service representative’s false statements may not be enough to stop a foreclosure. You should consult with a Tampa foreclosure attorney to learn more about potential legal defenses. There may be a legal defense that would require the judge to deny the foreclosure.

How To Cancel a Foreclosure Sale in Florida

Immediately after a homeowner files Chapter 7 or Chapter 13 bankruptcy, an automatic stay will go into effect. See bankruptcy law 11 USC 362. The automatic stay requires all collection activity to stop immediately, including scheduled foreclosure sales. Even if the bankruptcy is filed only a few minutes before the auction, the foreclosure will be stopped. The bank will not be able to resume a foreclosure until the bankruptcy court has lifted the stay.

Consult a 5-Star Foreclosure Defense Law Firm

If you are at risk of foreclosure, contact Florida Law Advisers to speak with a foreclosure defense attorney. We have years of experience in foreclosure defense and hundreds of 5 Star reviews from clients. Every foreclosure and bankruptcy case is different, and our vast experience allows us to cater our services to each client’s individual needs. Our initial consultations are free, and convenient payment plans are always available. Regardless, if you need help preventing foreclosure in Florida, Chapter 7, or Chapter 13 bankruptcy, we can help. Call us at 800 990 7763 to speak with a foreclosure defense lawyer. We are available to answer your calls 24/7.

How To Stop A Home Foreclosure In Florida

Florida is a judicial foreclosure state. Therefore, a bank or HOA seeking to foreclose a home must receive approval from a judge. The case must be filed in the circuit court where the property is located. Under Florida foreclosure law, all mortgage foreclosure cases are to be conducted in a court of equity. Courts of equity are authorized to apply principles of equity (fairness), as opposed to only legal defenses. Therefore, the judge can consider acts by the bank that would render the foreclosure unfair. 

During the court process, the homeowner will have an opportunity to raise defenses and challenge the foreclosure. If the foreclosure sale of your home has already been scheduled, you should contact a foreclosure defense attorney in Tampa. There may still be options to stop the foreclosure sale but time is running out.

Florida Foreclosure Trial

Foreclosure cases in Florida are conducted without a jury. Instead of a jury, the judge will decide the fate of the case. Homeowners will have to persuade the judge to rule in their favor. Judges are typically a lot less likely to be persuaded by principles of fairness than a jury would be. Therefore, you should consult with a foreclosure defense attorney to learn more about potential legal defenses. There may be a legal defense that would require the judge to deny the foreclosure.

Unclean Hands as a Florida Foreclosure Defense

One of the many potential ways to stop a foreclosure is the defense of unclean hands. Florida case law stands for the proposition that a foreclosure action must be denied if the bank has unclean hands. See Federal Savings and Loan v. Robert Smith. An example of unclean hands is tortuously interference by the bank. If there is evidence that establishes the bank tortuous interfered with enforcing the loan, the foreclosure should be denied.

Homeowners should be cautious when trying to prevent a foreclosure based on an unclean hands defense. Proving unclean hands can be difficult without the requisite legal training and experience. If you think your lender has unclean hands you should contact a foreclosure defense law firm in Tampa.

Proving Unclean Hands

To establish unclean hands, the homeowner must prove a fraudulent or illegal transaction. Alternatively, prove unrighteous, unconscious, or oppressive conduct by the mortgage company in regards to the loan. See Epstein v. Epstein. Moreover, for a defense of unclean hands, the homeowner must show a detriment to them by way of the lender. The improper conduct along is not enough, there must be evidence of harm. Additionally, the conduct in question must be connected with the failure to make mortgage payments. See Marin v. Seven of Five Ltd

Foreclosure Defense of Conditions Precedent

Another foreclosure defense is that the bank failed to fulfill all of the conditions precedents to foreclosure. A condition precedent is an event that must occur before performance under a contract becomes due. A common condition precedent in foreclosure cases is the bank’s requirement to send the homeowner notice of the default. Notice of default is just one example, there may be many other conditions precedent for the bank as well. For more information on the possible conditions precedent, your lender may be required to fulfill contact a foreclosure defense law firm in Tampa.

Lack of Notice of Default

Many mortgages include a requirement the bank notify homeowners the loan is in default before filing foreclosure. This condition is commonly found in the 22nd paragraph of the mortgage. The notice to the homeowner must indicate the action required to cure the default. Additionally, the notice must provide at least 30 days to cure the default before the bank can initiate foreclosure. Once the borrower raises this issue as an affirmative defense, the bank will have the burden of proving the notice was sent to the homeowner. The bank will have to prove they sent a notice that complied with all of the conditions outlined in the mortgage. See Wells Fargo v. Samaroo.

Common notice of default clause in a mortgage

Lender shall give notice to Borrower before acceleration following Borrower’s breach of any covenant or agreement in Security Instrument. The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument, foreclosure by judicial proceeding and sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration. As well as the right to assert the non-existence of a default or any other defense of foreclosure. 

As like most mortgages, the sample notice of default clause above is from a mortgage that contains an acceleration clause. Acceleration refers to the bank demanding the full amount of the mortgage, not just the missed monthly payments. If the loan does not have an acceleration clause, the lender can only demand payment of the amounts past due. If there is no acceleration clause, the bank will be unable to demand the full loan amount.

Loan Modification with Chapter 13 Bankruptcy

Chapter 13 allows homeowners to force the bank to accept a 5-year payment plan for the past due amount. The homeowner won’t have to pay the full mortgage in 5 years, only the amount that is past due. You don’t need to apply for a loan modification, you can force the bank into the 5-year payment plan. See bankruptcy law 1322.

Additionally, you can apply for a traditional loan modification as part of the Chapter 13 case. These modification applications are usually much different than when a homeowner applies. In Chapter 13 mortgage modifications, the U.S. Trustee is there to oversee the bank. Additionally, there can be a mediator appointed as well to help streamline the process. With much more oversight the bank is less likely to cause unnecessary delays and wrongfully deny modification requests.

How to Cancel a Foreclosure Sale in Florida

Immediately after a homeowner files bankruptcy, an automatic stay will go into effect. See 11 USC 362. The stay requires all collection activity to stop immediately, including a scheduled foreclosure sale. Even if a bankruptcy is filed just one minute before the auction, the foreclosure will be stopped. The bank will not be able to resume a foreclosure until the stay has been lifted by the court.

How to Void a Foreclosure Sale in Florida 

If the sale already occurred, you will need to void the foreclosure. When foreclosing on a home, the bank must follow the strict procedures under Florida foreclosure law. See FL Statute 45.031. If the lender did not follow proper procedures in noticing the sale there may be grounds to cancel the sale. Additionally, even if the bank fully complied with all procedures the sale may be overturned if there was a material irregularity in the sale process. See UM Publishing v. Home News Publishing. Regardless, it is still recommended to try and cancel the sale before it occurs. If you wait until after the sale, you may lose options you would have otherwise had to keep the home.

Consult a Foreclosure Defense Law Firm in Tampa

If your mortgage company is threatening you with foreclosure call us to speak with a Tampa foreclosure defense lawyer. Homeowners have rights and we want to make sure our clients choose the best strategic plan for their family. Regardless if you want to prevent foreclosure or walk away without being responsible for the debt we can help. Our initial consultation is free and we offer flexible payment options to all of our clients. To speak with a foreclosure defense lawyer in Tampa call us today at 800 990 7763.

HOA Foreclosure

Many homes, condominiums, and townhouses in Florida will be included in a homeowner’s association (HOA). If the property is part of an association, the homeowner will likely be required to make payments to the HOA. The fee will vary between each association but in some cases can be hundreds of dollars each month. Further, the HOA may be able to add late fees, attorney costs to the balance. If the delinquencies pile up, an HOA foreclosure action could be filed.

Homeowners are often surprised to learn that their homeowners’ association may be able to foreclose on their home. HOA’s may be able to seek foreclosure in Florida for missed payments or failure to maintain the property. Additionally, there may be other grounds set forth in the Association’s declarations and by-laws.  In many instances, an HOA foreclosure in Florida will even involve homes with no mortgage or other liens. Fortunately, homeowners who have fallen behind on HOA payments still have rights to challenge the foreclosure. If you need to stop an HOA foreclosure in Florida, contact Florida Law Advisers to speak with an HOA foreclosure attorney.

Can the HOA File Foreclosure in Florida?

Banks are not the only institutions that seek to foreclose on homes in Florida. Thousands of foreclosure cases are filed by homeowner’s associations in Florida each year. HOA’s are very aggressive, in some cases seeking foreclosure when the homeowner is only a few dollars behind on their bill. Further, it is not uncommon to have a balance of only $100 increase to over $5,000 after the HOA adds their late fees, interest, and attorney fees. Fortunately, some options can help prevent an HOA foreclosure sale.
Similar to banks, the homeowner’s association will need to file a foreclosure case in court and receive approval from a judge before the home is foreclosed. See Florida Statute 720.3085. During the court process, the homeowner will have an opportunity to raise defenses and challenge the foreclosure. T

The court process can move quickly if timely action is not taken to fight the HOA. If foreclosure proceedings have begun, contact a foreclosure defense attorney right away. There may be legal defenses that can be used to prevent the foreclosure of your home. Additionally, there may be other options available to stop the HOA foreclosure.

HOA Foreclosure for Late Fees

HOA’s are allowed to add interest, legal fees, and late fees under Florida law. In most homeowner’s association foreclosure cases, the number of attorney’s fees charged by the HOA will be far in excess of the amount of HOA dues owed. In some cases, the attorney’s fees are more than 3 times the amount of the past due HOA fees. However, if your foreclosure defense lawyer is successful in getting the case dismissed the HOA may be held responsible for reimbursing you for your attorney’s fees. See Florida Statute 57.105.

Required Notice for an HOA Lien

Under Florida Statute 720.3085, before a homeowners association foreclosure case can be filed the HOA must provide the homeowner with proper notice. Florida law requires the HOA to send notice to the homeowner of their intent to record a lien. Their notice must be sent at least 45 days prior to recording the lien. The notice must include details of the amount owed and an opportunity to pay the amount before filing foreclosure. The notice must meet all the requirements outlined in the Statute. For information regarding a specific notice contact an HOA foreclosure defense attorney for legal advice.

Notice of Intent to File HOA Foreclosure

Florida foreclosure law requires the HOA to send the homeowner notice of their intent to foreclose on the lien. This notice must be sent at least 45 days before filing for a homeowners association foreclosure. The notice of intent to foreclose the lien should be sent after the HOA files their lien for fees. If the HOA does not send the homeowner both the notice of their intent to record a claim of lien and notice of intent to foreclosure on the lien they should not be entitled to foreclosure.

Both notices are required to be sent by registered or certified mail with a return receipt. See Florida Statute 720.3085(4)(b). The notices must be sent to the address of the property they are intending to foreclose. If the property owners do not live in the home the HOA must send the notices to both the homeowner’s mailing address and the property address.

Will Chapter 13 Bankruptcy Stop an HOA Foreclosure?

When a homeowner files for bankruptcy an automatic stay is issued. The stay goes into effect immediately after a Chapter 7 or Chapter 13 bankruptcy is filed. The automatic stay will put an immediate stop to an HOA foreclosure in Florida. The automatic stay requires all collection activity against the debtor to stop immediately, including a foreclosure sale that has already been scheduled. For more information on the automatic stay click here.

Eliminate HOA Fees in Bankruptcy

Under bankruptcy law, HOA fees may be discharged in Chapter 7 or Chapter 13 bankruptcy. However, determining the amount that will be discharged requires careful consideration by an experienced bankruptcy lawyer. Generally, HOA fees that have been incurred prior to the order of relief will be eligible for discharge. However, bankruptcy law will not permit the discharge of HOA fees incurred for any period after the order for relief has been entered and the debtor still retains either a possessory or legal interest in the property.

If a debt is discharged in bankruptcy the borrower will be released from all personal liability on the debt. The discharge is a permanent court order releasing the borrower from the responsibility of having to pay the debt. Further, the discharge prohibits a creditor from taking any collection action against the borrower.

Chapter 13 to Remove HOA Liens on Your Home

Under chapter 13 bankruptcy law, junior liens (including mortgages or a homeowner’s association liens) can be stripped, or removed from homestead property. If the lien is stripped down to the market value, the remaining balance of the debt will be treated as an unsecured debt in bankruptcy. Unsecured creditors typically receive nothing or only a small amount of the balance before being discharged.  Further, after the discharge is granted, the HOA will be required to remove the lien from the property.

How to Force the HOA into a 5-Year Payment Plan

A Chapter 13 bankruptcy can allow a homeowner to force the HOA into a five-year payment plan. Essentially, the homeowner will have a 60-month loan to repay the back-due HOA fees, regardless of if the HOA approves it or not. Most of the time, the interest rate applied to these types of payment plans is around 6%. The rate of interest under a Chapter 13 plan is often less than the rate an HOA may charge. For more information about a specific case or payment plan contact a Tamp bankruptcy lawyer to schedule a consultation.

Consult Bankruptcy & Foreclosure Defense Law Firm

If you being threatened with an HOA foreclosure in Florida contact Florida Law Advisers, P.A. our Tampa foreclosure attorneys are experienced in both bankruptcy and foreclosure defense. Every foreclosure and bankruptcy case is different, and our vast experience allows us to cater our services to each client’s individual needs. All of our initial consultations are free and convenient payment plans are always available. Regardless, if you need help HOA foreclosure in Florida, Chapter 7, or Chapter 13 we can help. Call us at 800 990 7763 to speak with a lawyer, we are available to answer your calls 24/7.