How the Florida Foreclosure Process Works

Before the lawsuit

For most home loans, federal rules bar a mortgage servicer from making the first foreclosure filing until the borrower is more than 120 days behind. That window is the best time to talk to a lawyer, because it’s when loan modification, forbearance and repayment options are easiest to negotiate. You’ll usually receive default letters and a notice of intent to accelerate the loan during this period.

The lawsuit and your response

The lender starts the case by filing a complaint in circuit court. In Orange County, that’s the Ninth Judicial Circuit at the Orange County Courthouse on North Orange Avenue. For a residential mortgage, Florida law requires the lender to show it actually holds the original note or is otherwise entitled to enforce it, and to file the original note (or prove the terms of a lost note) before a judgment is entered. Whether the lender can prove that is one of the first things we check.

Once you’re served, you have 20 days to respond. Your answer can raise defenses such as improper notice of default, payments that weren’t credited, a lender that can’t prove its standing, or a claim filed after Florida’s five-year statute of limitations.

Judgment and the foreclosure auction

If the lender wins, the court enters a final judgment of foreclosure and sets a sale date. Orange County foreclosure sales are held online through the Clerk of Court. Until the clerk files the certificate of sale (or a later time set in the judgment), you still have the right of redemption, meaning you can stop the sale by paying the full judgment amount.

After the sale

If the property sells for more than the judgment, the extra money is surplus funds. The owner of record is presumed entitled to the surplus after any subordinate lienholders who file timely claims, and unclaimed surplus is eventually turned over to the state. Be careful with companies that offer to “recover” your surplus for a large cut; Florida caps what they can take. For a one- to four-family home, a lender that wants a deficiency judgment for any shortfall generally has one year to pursue it.

Foreclosure Defense Strategies Our Attorneys Use

Every case is different, but these are the defenses and options we look at most often:

• The lender has to prove it owns the note or has the right to enforce it. Missing assignments and lost notes still come up.
• Notice and conditions precedent. Many mortgages require a specific notice of default and a chance to cure before the loan is accelerated.
• Payment and accounting errors. Misapplied payments, improper fees and force-placed insurance charges can reduce what you owe or defeat the claim.
• Statute of limitations. A mortgage foreclosure generally has to be filed within five years of the default the lender relies on.
• Loss mitigation. A modification, forbearance or repayment plan can end the case with you still in the home.

Alternatives When You Can’t Keep the Property

Sometimes the best outcome is a controlled exit rather than a judgment. You can generally sell the property at any point before the foreclosure sale. If you owe more than it’s worth, a short sale lets the lender accept less than the full balance. A deed in lieu of foreclosure transfers the property to the lender in exchange for cancelling the mortgage, though it may not be available if there are other liens. We negotiate these alternatives with an eye on any remaining debt and push for a deficiency waiver, so you’re less likely to face a deficiency judgment later.

Bankruptcy is another option some homeowners consider. Filing a Chapter 13 petition triggers an automatic stay that pauses the foreclosure, though it isn’t right for everyone. When a bankruptcy filing may make sense, we coordinate the foreclosure defense with bankruptcy counsel.

Commercial Foreclosure Defense

Commercial borrowers face different pressures: a maturing balloon loan, a personal guaranty, or a tenant problem that cut off income. Commercial borrowers often have fewer statutory protections than homeowners, but the lender still has to prove its case in court. We negotiate with lenders for loan workouts, extensions and time to refinance, and we defend the lawsuit when negotiation fails.

Why Work With Legal Counsel, P.A.

Michele Diglio-Benkiran founded the firm and has practiced business and real estate law since 1999, so our Orlando foreclosure defense work starts with a clear read of the mortgage, the note and the title. Richard Sierra is a commercial litigation and bankruptcy lawyer with more than three decades of experience, admitted in Florida’s Middle and Northern District federal courts. When the answer involves litigation, he’s already on the team.

Results matter, and so does honesty about your options. We won’t promise to save every property, but we’ll tell you where you stand, advocate for you with the lender, and work to protect your rights at every step. We offer a free consultation, and pay later options are available for qualifying clients.

Serving Orlando and Central Florida

We represent homeowners and property owners throughout Orange County and Central Florida from our Winter Garden, Orlando and Seminole offices. Foreclosure cases on property in Orange County are filed in the Ninth Judicial Circuit and heard at the Orange County Courthouse, 425 N. Orange Avenue in downtown Orlando. Foreclosure defense is one part of our Orlando law firm; when an association is foreclosing its lien, our Orlando HOA attorneys can help, and our Orlando real estate attorneys handle the title and sale questions that come with it.