Divorce is hard enough, but now and again unpleasant circumstances become even more complicated. This is frequently the case with foreclosure, which these days is often an uninvited guest during divorce proceedings. But if you’re in the middle of a divorce and facing the prospect of foreclosure, don’t panic!
The good news is you’re not alone; these cases are fairly common and having a good plan can make all the difference. First, there are three important questions to consider: Which spouse is responsible for the mortgage loan? How will the debt be settled? And what does this mean for your home?
So you’re getting a divorce
When dealing with foreclosure during divorce, the first order of business is to clarify which party (if not both) is legally bound to the mortgage. When married couples first purchase a home, they generally agree to take out a loan—as well as take possession of the property title—together. However, it is not uncommon for only one spouse to assume the mortgage loan, while both spouses take hold of the title.
The bank will come knocking
Once the mortgage goes into foreclosure, the bank will seek payment from whomever signed the mortgage documents. If you and your soon-to-be-ex both signed the mortgage and promissory note, you are both liable. However, if you did not sign the mortgage docs, the bank cannot come after you even if your name does appear on the title.
Either party can decide to assume the loan entirely and release the other from any liability on the debt.But even if you do assume the loan from your spouse, you must still obtain credit approval and show your lender that you do have sufficient income to take over payments.
What happens next?
Establishing who is responsible for the mortgage, and deciding early on whether or not you will keep the home will make avoiding a foreclosure that much easier. Once the divorce is final, you can determine whether a Loan Modification, a Deed in Lieu of Foreclosure, or a Short Sale is the right alternative for you.
Many homeowners are still haunted by the nation’s recent economic standstill, which means that divorce quite frequently coheres with foreclosure. Consulting an experienced divorce attorney will protect your interests and ensure you get through your divorce in one piece.
Stephen K. Hachey, a Florida real estate 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.
This post was written by Stephen Hachey. Follow Stephen on Google, Facebook, Twitter & Linkedin.
Unless otherwise stated in their governing documents (declaration and bylaws), HOAs may collect attorney fees only when those fees are incurred as a result of past due assessments. So if your assessments are up to date, your HOA has no statutory basis to pass on their attorney fees to you.
When a lender files a foreclosure suit, they routinely name HOAs as defendants. Banks do this because HOAs can (and usually do) file a lien against homeowners who default on assessments; which can happen long after banks have filed their foreclosure suit. But there’s no statutory law or rule of civil procedure in the state of FL that entitles HOAs to pass on attorney fees solely for being named as a defendant in a foreclosure.
There are two circumstances in which your HOA may require you to pay their attorney fees: a) your association dues are in arrears and your HOA has incurred legal fees as a result of trying to recover those assessments; or b) your contract (governing documents) states explicitly that you are to pay attorney fees incurred by the HOA as a result of being named a defendant in a foreclosure action filed against you.
If you do not believe that either scenario above applies to your case but your association is seeking payment for attorney fees, discuss your case with a legal professional immediately. An experienced attorney can help you examine your association’s bylaws and determine whether your HOA’s demands are unfounded.
Stephen K. Hachey, a Florida real estate 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.
This post was written by Stephen Hachey. Follow Stephen on Google, Facebook, Twitter & Linkedin.
A stipulation for substitution of counsel is a common motion filed during foreclosure proceedings to signal that a new attorney has taken over the plaintiff’s case. Though a motion to change counsel is generally no source for concern, chances are the new attorney will look at the case with fresh vigor, which means you should be prepared to respond in kind.
First, it’s a good idea to have your lawyer review the motion to ensure that everything is in order. Though unlikely, mistakes do happen and if a mistake was made, your lawyer will find it. The change in counsel may also be a good opportunity to reevaluate your options. In the ideal scenario, your foreclosure never goes to summary judgment and you are able to reach a reasonable agreement with your lender out of court.
A loan modification is the most common way homeowners avoid foreclosure sale. Other options are to do a short sale or deed-in-lieu. In a short sale your lender agrees to sell the property for less than the mortgage debt, while a deed-in-lieu allows you to transfer your interest in the property back to your lender. In the event you do reach an agreement, be sure to make the release of any deficiency a stipulation in your contract.
When it comes to foreclosure, the most important thing to remember is that you should always have expert legal counsel. Consult with an experienced Foreclosure Attorney to explore your options and ensure your interests are protected.
Stephen K. Hachey, a Florida real estate 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.
This post was written by Stephen Hachey. Follow Stephen on Google, Facebook, Twitter & Linkedin.
Foreclosure can be a puzzling and overwhelming process that often leaves homeowners in a daze. If you’re wondering whether your bank has the legal right to foreclose on your home, you are not alone. Due to mortgage lenders’ routine practice of selling or reassigning servicing rights, homeowners are often confused about who has proper ownership of their mortgage. Here are a few tips on proper ownership and how it can affect your foreclosure.
In order for your lender to have a valid case against you, they must show that they have physical possession of the promissory note. The note does not require a signature, but only that it be endorsed to “blank” or otherwise to the entity foreclosing. At trial, the burden of proof falls on the foreclosing party. That means the bank has to prove to the court that they have legal standing to foreclose on your home and seek repayment, whether you respond to the foreclosure or not. Generally, if the bank is unable to prove that they have proper ownership of the home, the foreclosure will not proceed. This sounds simple enough, but in reality it rarely is.
In today’s foreclosure-mill environment, documents are regularly mishandled and even lost. But even with these mistakes being common, many foreclosures routinely proceed through the courts unfettered. This is why seeking the help of qualified legal professionals is very important. When it comes to foreclosure, having expert legal counsel could make all the difference in the fight to keep your home. If you believe your lender does not have proper ownership of your property or suspect any wrongdoing, consult with an experienced Foreclosure Attorney immediately to review the facts of your case and help you protect your interests.
Stephen K. Hachey, a Florida real estate 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.
This post was written by Stephen Hachey. Follow Stephen on Google, Facebook, Twitter & Linkedin.
Unfortunately, foreclosures happen more often than we would like. The consequences of a foreclosure are tough, and even people who think they have it all together have a chance to fall into a hard time. There are a lot of questions swirling about foreclosures, so here is the answer to this one: once a foreclosure is filed, how long does the lender have to complete it before it expires?
There is a time limit that the mortgage company must file the foreclosure within, but there is no limit to how long the case can go on. The case never expires, although there is a possibility that there can be a lack of prosecution motion.
Your case will move at a speed depending on the attorney prosecuting and the attorney defending. Cases can range from lasting anywhere to as little as eight months to as long as three years or more. The courts are currently searching for a solution to pump the cases through in a more-timely manner.
Once again, after a foreclosure is filed there is no expiration date for the case. With there being no set time limit, the case can range from lasting months to lasting years, although a lack of prosecution motion can be brought up.
Stephen K. Hachey, a Florida real estate 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.
This post was written by Stephen Hachey. Follow Stephen on Google, Facebook, Twitter & Linkedin.
One party can request a default motion if the other party has failed to file or serve any documents within the 20 days after the date the petition was serviced. A motion for default will allow you to have an earlier final hearing to help finish your case. If your HOA has filed for a default motion in a foreclosure case you need to retain an attorney immediately.
There are many factors that can go into a foreclosure case so there is not an “one-size-fits-all” way out of an issue like this. The best way to try and handle this situation is to speak to an attorney. They will be able to provide you with the knowledge and tools that you will need in order for you to try and save your home.
An attorney will hopefully be able to file something quickly to buy you a little more time; however, if the hearing is for a “default final judgment” then filing anything will not delay the matter because it would already be too late.
Bottom line: retain an attorney. They will be able to provide assistance, a better understanding, and a chance to help your situation.
Stephen K. Hachey, a Florida real estate 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.
This post was written by Stephen Hachey. Follow Stephen on Google, Facebook, Twitter & Linkedin.
For many property owners with a mortgage in negative equity, letting the home fall into foreclosure may seem like their only choice. But if you’re struggling to keep up with mortgage payments on a home that is worth less than what you owe, it’s important to know that you do have other options. Here are just a few ways to avoid a drawn out foreclosure process.
Refinance – Homeowners current on payments may be eligible for assistance through the government’s Making Home Affordable program, which allows qualified borrowers to refinance their loan.
Loan Modification – Though refinancing may be the best option, it is unlikely. The most common way homeowner’s avoid foreclosure is by renegotiating their loan terms to achieve a lower monthly payment.
Short Sale – In a short sale, your lender agrees to allow you to sell the property for less than the mortgage debt, though you may still be liable for the difference.
Deed-in-Lieu – A deed-in-lieu allows you to convey all interest in the property back to your lender, satisfying the loan and keeping you out of court. As with a short sale, your lender may still hold you liable for any deficiency left on the mortgage.
Most homeowners’ initial instinct is to fulfill their obligation and continue to pay the mortgage. But this isn’t always very fruitful. It could be many years before you break even and begin to build positive equity again. In this scenario it is best to part ways with the bad investment. Finding a viable alternative to what will inevitably end in foreclosure will save you a lot of grief and cause the least amount of damage to your credit.
Whatever your choice, it requires careful consideration. If you are thinking about walking away from your underwater mortgage, consult with a qualified Foreclosure Attorney to discuss the particulars of your case and explore your options in greater detail. An experienced attorney can negotiate the best terms for the resolution of your mortgage and ensure that your interests are well represented.
Stephen K. Hachey, a Florida real estate 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.
This post was written by Stephen Hachey. Follow Stephen on Google, Facebook, Twitter & Linkedin.
Surplus proceeds refer to the extra money that remains after a foreclosure sale once all the debts secured by the property have been paid off. This situation can arise when the foreclosure sale price exceeds the total amount owed on the property. According to Florida Statutes 45.032 and 45.033, the former property owner has the right to claim these surplus proceeds, provided certain conditions are met.
Claiming Surplus Proceeds
The former property owner is entitled to claim the surplus proceeds if they did not assign their rights to someone else between the time the lis pendens (a written notice that a lawsuit concerning real estate has been filed) was recorded and the time of the judicial sale. However, there is another stipulation: there should be no other “subordinate lienholders” (people or companies who are owed money) who have filed a claim for the funds. If no subordinate lienholders file a claim, the property owner receives the surplus money, minus the court’s fees. The property owner has 60 days from the date of the sale to request the surplus funds.
Role of Subordinate Lienholders
Subordinate lienholders are individuals or entities that have a claim on the property but whose claim is ranked below that of the primary lender. If there are subordinate lienholders who have filed a claim, they may be entitled to a portion of the surplus proceeds. The distribution of surplus proceeds in such cases can be complex and may require legal assistance to navigate.
Transfers of Ownership and Surplus Proceeds
Transfers of ownership can complicate the distribution of surplus proceeds. For example, if a homeowner received a foreclosure notice and transferred ownership to someone else, the court must determine whether the transfer was voluntary or involuntary. A voluntary transfer would be one made in writing that followed all of Florida Statute 45.044(3) guidelines. An involuntary transfer is one made by inheritance or guardianship. If the court determines that the transfer was made in “good faith,” the transferee may be entitled to the surplus funds. If not, the court can award the surplus to the original owner, and the transferee would have the option to sue the owner for a refund.
Seeking Legal Advice
Dealing with surplus proceeds from a foreclosure sale can be complex. It’s crucial to seek professional advice to navigate these challenges. A foreclosure attorney can guide you through the process, help you understand your rights and options, and work to protect your interests. If you’re facing a situation involving a foreclosure sale and potential surplus proceeds, don’t hesitate to consult with a qualified attorney.
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.
If you, or someone you know, is going through the foreclosure process you may have heard the term “case management conference”. If you are wondering what that is, here’s the answer.
In terms of foreclosure, a case management conference is when both parties meet to talk about the foreclosure case because nothing has changed. This conference will help decide the next step in the foreclosure process, which can possibly be an alternative to a foreclosure such as a deed in lieu, short sale, or mediation.
However, you should also be aware that a case management conference could potentially speed up the foreclosure process. You should bring documentation for that explains why you have missed your payments.
For the case management conference, both parties may fill out a Case Management Report where they will include information like the date of filing of complaint and status, the status of pleadings of each defendant, the property and the documents. The report also includes the status of loss mitigation, the case, and it documents if any discoveries have occurred.
In addition, the Case Management Report will touch on the status of related cases, the status for trial, and the record activity. All of these components will help the case management conference run more smoothly.
The information needed will be easily accessible and help both parties understand the circumstances and what exactly is going on. Accuracy is important, because the information in the report and brought up at the conference can heavily influence any action taken toward the foreclosure.
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.
This post was written by Stephen Hachey. Follow Stephen on Google, Facebook, Twitter & Linkedin.
Foreclosures can be a lengthy, stressful process in which all sides stand to lose. Chances are your lender wants to work it out as much as you do; it is easier and cheaper to come to an amicable agreement then to have a drawn out slugfest play through the court system. But if you’ve been hit with a final notice of sale, it’s time to think outside the box.
In the ideal scenario, getting a loan modification (renegotiating the terms of your loan in order to achieve a lower, more affordable payment) is the best option for underwater homeowners. Still, attaining a loan modification on your own isn’t always easy or possible. A foreclosure prevention counseling service can help ensure your bank is reviewing the facts of your case fairly. These services are federally sponsored and completely free of charge, so be wary of any company promising to help you keep your home for a fee.
Delaying the sale
Filing lawsuit for a separate claim, such as force insurance, is not a viable postponement strategy as it will have no effect on the foreclosure proceedings. If your sale date is looming close, then it is time to seriously consider filing bankruptcy. Any type of bankruptcy will put an automatic stay on your foreclosure. However, unlike Chapter 7 bankruptcy, which would release you from liability for the mortgage debt, Chapter 13 bankruptcy affords you the opportunity to reorganize your debt into a manageable, affordable payment plan. In essence, a Chapter 13 not only halts the foreclosure sale, it can help you get the loan modification you need.
The most secure and effective way to ensure you’re being treated fairly and that you’re doing everything you can to come out a winner is to have proper legal representation. With the help of a capable attorney, a Chapter 13 bankruptcy filing can ultimately help you craft a reasonable deal with your lender. An experienced bankruptcy attorney can help you assess your unique financial position and explore the best options for your situation.
Stephen K. Hachey, a Florida real estate 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.
This post was written by Stephen Hachey. Follow Stephen on Google, Facebook, Twitter & Linkedin.
