If you live in Florida and you have unsecured creditors hounding you for payment, you are protected from having your home foreclosed on so that payment to them can be made. Those creditors are legally able to put a lien against your property, but you will not lose it to foreclosure. The Florida State Constitution prevents this act.

While an unsecured creditor is allowed to file a lien against your property, you can also sue to get that lien removed from your homestead. Many creditors will place a lien against your property anyway, hoping that its presence might encourage you to voluntarily pay off the debt when you sell your home or refinance it. Remember that you have options other than paying off the lien. If you do try to sell your home while a creditor has a lien against it, the title insurance company will alert you to this fact and you might be delayed in closing on the sale. However, this does not mean you need to pay off the lien in order to move forward with the sale of your house.

Talk to a qualified and experienced real estate attorney. You have options to get the creditor’s lien removed from your homestead. Most creditors are hoping you will not understand your rights, and will rush to get the debt settled in their favor. Let Stephen K. Hatchey, a Florida real estate attorney, help you explore other ways. Contact our offices at 813-549-0096.

This article is for general informational purposes only and does not establish an attorney-client relationship. Please contact a licensed attorney in your state of residence. For more information on our services, please visit our website at www.floridarealestatelawyer.org/

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In Florida, a special warranty deed is a real estate transaction in which the transfer of a property is involved. It is often more limiting than other kinds of real estate deeds because the special warranty deed allows the seller or the grantor to turn over the deed of a property in any condition that he or she received it. The seller must provide a warranty that no damage or defect occurred while he or she owned it, but does not need to make any guarantees against what might have occurred to the property before he or she came to own it.

A special warranty deed in Florida is often used by a lender when they acquire a new property through foreclosure. When the lender then sells or grants the property to developers or new buyers, the lender is required to ensure there are no defects to the property during the lender’s ownership. However, the lender is not held accountable for any problems to the property that occurred before the foreclosure gave the lender title.

Essentially, the lender or seller of the property is saying that he or she is granting the property to a new owner in exactly the same condition that it was received. Talk to a real estate attorney or foreclosure expert before entering into a special warranty deed in Florida. You want to make sure all your claims to the property are protected, especially when you are dealing with a foreclosed property. Stephen K. Hatchey, a Florida real estate attorney, can help you navigate this process. Contact our offices at 813-549-0096.

This article is for general informational purposes only and does not establish an attorney-client relationship. Please contact a licensed attorney in your state of residence. For more information on our services, please visit our website at www.floridarealestatelawyer.org/

This post was written by Stephen Hachey. Follow Stephen on Google, Facebook, Twitter & Linkedin.

Updated: 6/2/23

Real estate terms and words can become confusing, but it is important to know what you are talking about when you enter into a real estate transaction. In Florida, you might be signing a mortgage or a promissory note. Make sure you know the difference before you sign, because it could have an impact on what you are getting and what you owe.

Understanding a Promissory Note

In the realm of real estate transactions, a promissory note is a critical document. Essentially, it's a contract where one party, typically the buyer, agrees to pay another party, usually the lender, a specific sum of money. In the context of Florida real estate, a promissory note often outlines the buyer's agreement to make monthly mortgage payments to their lender.

The promissory note is all about the financial obligation. It details the sum of money owed, the method of payment, the payment terms, and the date by which the loan will be completely paid off. Interestingly, a promissory note does not have to reference the property at all. Instead, it focuses solely on the financial agreement between the buyer and the lender.

Understanding a Mortgage

A mortgage, on the other hand, is all about property. It represents the transfer of an interest in a property from one party to another. In a typical real estate transaction, the individuals who own the property will sign the mortgage. They might also sign a promissory note, but these are two distinct documents.

The mortgage is intrinsically linked to the property. It must be attached to a specific property and recorded in the county or town recording office, as it references the property that has been purchased. Unlike a promissory note, which is simply filed with the lender, a mortgage involves a government or civic entity due to its connection to the property.

Comparing a Promissory Note and a Mortgage

While both a promissory note and a mortgage are integral to a real estate transaction, they serve different purposes and carry different implications. Here's a more detailed comparison of these two concepts:

Purpose and Content:

A promissory note is essentially a financial agreement. It outlines the amount of money the borrower owes to the lender, the interest rate, the payment schedule, and the maturity date of the loan. It's a legally binding document that holds the borrower accountable for repaying the loan. However, it does not have any direct connection to the property being purchased.

On the other hand, a mortgage is a legal document that ties the loan to the property. It gives the lender the right to take possession of the property if the borrower fails to make the agreed-upon payments. The mortgage includes details about the property, the identities of the borrower and lender, and the terms of the loan. It also outlines the procedures for foreclosure, which is the legal process the lender must follow if the borrower defaults on the loan.

Legal Implications:

When a borrower signs a promissory note, they are legally committing to repay the loan according to the terms outlined in the note. If the borrower fails to make the agreed-upon payments, the lender can take legal action to collect the debt. This could involve suing the borrower in court and obtaining a judgment to garnish wages or seize assets.

Signing a mortgage, however, gives the lender a claim against the property. If the borrower defaults on the loan, the lender can initiate foreclosure proceedings to sell the property and recover the loan amount. The foreclosure process varies by state, but it generally involves a public auction where the property is sold to the highest bidder.

Transferability:

Both promissory notes and mortgages can be sold or transferred by the lender. When a promissory note is transferred, the new holder has the right to collect the debt. When a mortgage is transferred, the new holder gains the right to foreclose on the property if the borrower defaults on the loan.

The Legal Implications of Signing a Promissory Note and a Mortgage

Signing a promissory note or a mortgage is not a decision to be taken lightly. These documents carry significant legal implications, and violating their terms can lead to serious consequences. If you find yourself facing a situation where you're unsure about these documents, it's advisable to seek legal advice.

This article is for general informational purposes only and does not establish an attorney-client relationship. Please contact a licensed attorney in your state of residence. For more information on our services, please visit our website at www.floridarealestatelawyer.org

 

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A quit claim deed is a legal transaction that allows the owner of a piece of property to immediately transfer ownership to another party. The term describes the owner “quitting” his or her rights to the property. The party gaining ownership to the real property does not get any warranties as to the title or condition of the property. If you gain a piece of property in a quit claim transaction, you are only getting whatever the previous owner was entitled to at the time the asset was transferred.

One of the most common occurrences of a quit claim deed is divorce. When a husband and wife are separating or divorcing, and one of them gets the sole rights to a piece of marital property, such as a home, the spouse giving up rights to that property can transfer the ownership quickly in a quit claim deed. This is a simpler and faster process than refinancing the loan or selling out shares in the property. It simply involves one spouse removing himself or herself from any rights to that property.

Quit claim deeds are also useful when property is transferred between family members or close friends. If you want to give a grandchild the gift of your home, for example, instead of selling him the home, you could simply transfer ownership in a quit claim deed. It is rare for a house or other piece of property to be transferred in a quit claim deed if you are trying to buy or sell a piece of property through traditional channels. There is almost always a relationship in place between the parties who initiate a quit claim deed.

Stephen K. Hatchey, a Florida real estate attorney, can help you navigate this process. To receive a free consultation, contact our offices at 813-549-0096.

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In a Florida foreclosure action, a motion for summary judgment is typically filed by the lender, asking the judge to decide the case in favor of the lender immediately. This would provide the bank to take control of the property without a lengthy trial. In order to be heard in court and allow all the facts of the foreclosure case to be heard, a Florida homeowner or borrower fighting the foreclosure will have to convince the judge not to award a summary judgment.

Most lenders file a motion for summary judgment because they believe all the facts of the case rest in their favor, and there is no point in a court case or a trial. They often have well documented facts of a homeowner’s inability or refusal to make mortgage payments, and they know that all other steps have been taken to bring the loan current and avoid the foreclosure. A motion for summary judgment is filed when the lender’s attorneys believe there is nothing the borrowers could say in their defense that would prevent the foreclosure from moving forward.

Lenders in Florida are able to file a motion for summary judgment 20 days after the lawsuit has been filed. The lender is required to serve the borrower with notice of the hearing as well as any supporting documentation that has been filed with the court. While most judges have high standards that lenders must meet before a motion is granted, summary judgments have become more frequent in Florida foreclosure cases.

Stephen K. Hatchey, a Florida real estate attorney, can help you navigate this and many other legal matters. To receive a free consultation, contact our offices at 813-549-0096.

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Lenders in Florida are not required to foreclose on property after a bankruptcy is filed. In fact, if you are in danger of losing your home and you want to keep it, filing for bankruptcy right before the foreclosure is a good way to keep your home, at least until the bankruptcy is discharged. Many Florida residents file Chapter 7 or Chapter 13 bankruptcy proceedings, but manage to keep their homes. Florida law does not require lenders to foreclose. If you are working out a loan modification or continuing to pay your mortgage on time, your bankruptcy will probably not affect your rights to your property.

Because the foreclosure process and the bankruptcy laws are so intertwined in Florida, make sure you have an excellent attorney who understands both areas of the law before you file for bankruptcy, especially if you want to keep your home out of foreclosure. Talk to a lawyer with experience in helping homeowners keep their homes, even during or after a bankruptcy.

If you are giving up your home in the process of your bankruptcy, the lender will foreclosure on you after bankruptcy is discharged. Talk to your lawyer about the timing. Many attorneys will know how to position the filing of your bankruptcy at the right time, to keep you in your house for as long as possible. The foreclosure process in Florida operates on a fairly strict timeline and you don’t want to find yourself surprised when the foreclosure actually happens. Stephen K. Hatchey, a Florida real estate attorney, can help you navigate this and many other legal matters. To receive a free consultation, contact our offices at 813-549-0096.

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If you are renting a home in Florida, and you find out the owner of the house is being foreclosed upon, you are not permitted to stop making payments to the landlord. The foreclosure process in Florida is often a long and drawn out one, which means it could take a year or more for the bank to actually take the house back from the property owner. This means, your landlord can evict you for nonpayment of rent, even if that landlord is not paying the mortgage on the house you are renting. In some cases, a tenant can make payments directly to the bank in order to avoid being forced out of the property when the foreclosure date actually arrives. However, this is usually only permitted when the foreclosure has been complete and the landlord no longer has rights to the property.

Talk to an attorney as soon as you get notice that the house you are living in is in danger of foreclosure. A lawyer experienced in Florida foreclosure law can help you ensure your rights as a tenant are being protected. Unless you are able to reach a deal directly with the mortgage company to continue renting, you should not stop paying your landlord, otherwise you could face eviction. The situation will depend completely on the state of foreclosure that the property is in. If it is in the early stages, the embattled landlord will probably still be the legal owner of the property you are occupying for a while. Not paying the rent will only cause additional problems for you. Stephen K. Hachey, a Florida real estate attorney, can help you weigh through your options. To receive a free consultation, contact our offices at 813-549-0096.

This post was written by Stephen Hachey. Follow Stephen on Google, Facebook, Twitter & Linkedin.