If you default on your mortgage payments in Florida, the servicer (on behalf of the loan owner, called the “lender” in this article) will eventually begin a foreclosure. Florida law specifies how foreclosures work, and both federal and state laws give you rights and protections throughout the process.
If you get a loan to buy residential real estate in Florida, you'll likely sign two documents: a promissory note and a mortgage. The promissory note is the document that contains your promise to repay the loan along with the repayment terms. The mortgage is the document that gives the lender a security interest in the property. If you fail to make the payments, the mortgage provides the lender with the right to sell the home at a foreclosure sale to recoup the money it loaned you.
If you miss a payment, the servicer can usually charge a late fee after the grace period expires. Most mortgage loans give a grace period of ten to fifteen days, for example, before you’ll incur late charges. To find out the grace period in your situation and the amount of the monthly late fee, review the promissory note or your monthly billing statement.
If you miss a few mortgage payments, the servicer will probably send letters and call you to try to collect. Federal mortgage servicing laws require the servicer to contact you (or attempt to contact you) by phone to discuss foreclosure alternatives—called “loss mitigation” options—no later than 36 days after a missed payment and again within 36 days after each following missed payment. No more than 45 days after a missed payment, the servicer must let you know in writing about loss mitigation options that could be available, and assign personnel to help you. Some exceptions to a few of these requirements exist, like if you file bankruptcy or tell the servicer not to contact you under the Fair Debt Collection Practices Act. (12 C.F.R. § 1024.39).
Many Florida mortgages have a provision that requires the lender to send a breach letter if you fall behind in payments. This notice tells you that the loan is in default. If you don’t cure the default, the lender can accelerate the loan (call it due) and go ahead with the foreclosure.
Federal law generally requires the servicer to wait until the loan is over 120 days delinquent before officially starting a foreclosure. But in a few situations, like if you violate a due-on-sale clause or if the servicer is joining the foreclosure action of a superior or subordinate lienholder, the foreclosure can begin sooner. (12 C.F.R. § 1024.41).
Approximately half of the states, including Florida, require the lender to file a lawsuit in court to foreclose.
The lender files the suit and gives notice by serving you a summons and complaint. You generally get 20 days to file an answer with the court. If you don’t file an answer, the lender will ask the court for, and probably receive, a default judgment, which will allow it to hold a foreclosure sale. If you respond to the lawsuit, however, the case will go through the litigation process. The lender might then ask the court to grant summary judgment. A summary judgment motion asks that the court grant judgment in favor of the lender because there’s no dispute about the critical aspects of the case. If the court grants summary judgment for the lender—or you lose at trial—the judge will order the home sold at a foreclosure sale.
The lender has to publish a notice of the foreclosure sale in a newspaper once a week for two consecutive weeks, with the second publication at least five days before the sale. (Fla. Stat. § 45.031).
The process ends with a foreclosure sale. The foreclosure sale must take place 20 to 35 days after the judgment date unless the court order says otherwise. (Fla. Stat. § 45.031). The sale is an auction where the public and lender may bid on the property. The lender usually makes a bid on the property using what’s called a "credit bid" rather than bidding cash. With a credit bid, the lender gets a credit up to the amount of the borrower’s debt. The highest bidder at the sale becomes the new owner of the property.
Sometimes, a foreclosure sale doesn’t bring in enough money to pay off the full amount owed on the loan. The difference between the sale price and the total debt is called a “deficiency balance.” Many states, including Florida, allow the lender to get a personal judgment, called a “deficiency judgment,” for this amount against the borrower.
In Florida, the lender may obtain a deficiency judgment:
The lender has one year to request the judgment. This statute of limitations period begins the day after the court clerk issues a certificate of title to the buyer who purchased the home at the foreclosure sale. (Fla. Stat. § 95-11). Florida law requires the court clerk to promptly file a certificate of sale after the foreclosure sale takes place, so the clerk usually files it within a day or so of the sale. (Fla. Stat. Ann. § 45.031). If no one objects to the sale, the clerk issues the certificate of title ten days after the certificate of sale. (Fla. Stat. § 45.031).
The court has some flexibility when it comes to the deficiency amount, but it can't exceed the difference between the judgment amount and the fair market value in the case of an owner-occupied residential property. (Fla. Stat. § 702.06).
In Florida, the lender, which is usually the high bidder at the foreclosure sale, will typically get a right to possession in the foreclosure judgment. After the clerk files the certificate of title, the lender can then file a motion for a writ of possession. Once the court grants the motion, the clerk of court issues the writ, and the sheriff executes it.
In this article, you’ll find details on foreclosure laws in Florida with citations to statutes so you can learn more. Statutes change, so checking them is always a good idea. How courts and agencies interpret and apply the law can also change. And some rules can even vary within a state. These are just some of the reasons to consult with an attorney if you’re facing a foreclosure.
Also, foreclosure laws are complicated. Servicers and lenders sometimes make errors or forget steps. If you think your servicer or lender failed to complete a required step, made a mistake, or violated state or federal foreclosure laws, you might have a defense that could force a restart to the foreclosure or you might have leverage to work out an alternative. Consider talking to a local foreclosure attorney or legal aid office to learn about your rights. A lawyer can tell you about different ways to avoid foreclosure, too. Likewise, a HUD-approved housing counselor can provide helpful information (at no cost) about various alternatives to foreclosure.