It is an unfortunate reality that many individuals have had to go into foreclosure as a result of the economic downturn. Some people have been successful at paying down their mortgage by renting out extra rooms to increase cashflow. However, sometimes it is not enough and the property still goes into foreclosure. However, this creates a complex scenario where you and your tenants may have different rights going forward.
Much of the difference comes down to whether or not your tenants are “bona fide.” According to federal law, tenants are bona fide if they are not part of the immediate family of the owner/landlord, the lease was executed as an “arm’s length transaction, and they are paying a fair market rate to live there. If the tenants are not bona fide, they are not protected under the Protecting Tenants at Foreclosure act and will need to vacate the property within 60 days after receiving notice from the new owner. Bona fide tenants must vacate within 90 days after notice from the new owner.
As the previous owner/landlord, your rights are different. After the foreclosure, you may be served with a Writ of Possession that gives you 24 hours to vacate the property. The new owners may be interested in having you lease the property from them, allowing you to stay longer.
As you can see, these situations can be extraordinarily complex, so it would be beneficial for you to work with an experienced attorney that can file the necessary forms and fight for your rights and interests.
Stephen K. Hachey, a Florida real estate attorney can help your wade through this difficult 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 deficiency judgment occurs when a foreclosed home sells for less than the balance owed on the mortgage loan; in the state of Florida, your lender has the legal right to file suit against you in order to garnish your financial assets and recover the difference. If you are facing foreclosure, you may be wondering whether your retirement assets are in jeopardy of being swallowed up by a deficiency judgment. But breathe easy because under Florida law, retirement accounts are out of reach from creditors.
Pension plans and retirement accounts are protected from creditors in the state of Florida and as such cannot be attached to a deficiency after a foreclosure sale. All monies or assets in a retirement or profit sharing plans are exempt from all claims from creditors, including foreclosure and/or bankruptcy proceedings. All IRA accounts, including rollover and inherited IRAs, are protected under Florida Statute 222.21(2)(a) and will not be claimed by your lender; however, the statute does require the account be maintained with a Florida financial institution or branch in order to qualify for exempt status under Florida law. The state of Florida applies the statute broadly, adding emphasis to county and state employee pensions, such as teachers, police officers and firefighters. The rationale behind Florida’s retirement exemption is to ensure that Florida residents are able to support themselves in retirement and are not instead forced to depend on the state as a result of a default.
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.
After a foreclosure, you may be surprised to find that the nightmare is far from over, but if your mortgage lender is unable to recover their entire loan balance after a foreclosure sale, you’re still very much along for the ride.
A deficiency occurs when a mortgage lending institution is unable to cover its investment with the proceeds from the sale of a foreclosed home. In the state of Florida, your lender can file suit against you in order to collect the difference. If you paid for private mortgage insurance (PMI), the insurance company will pay off the deficiency to the bank; but the PMI company has a right to hold you accountable and seek repayment. Don’t panic! Deficiency laws are complex and generally do not allow lenders or related parties to flippantly pursue borrowers to cover their losses once a foreclosure’s taken place.
Florida’s statute of limitations for deficiency judgments resulting from foreclosures on or after July 1, 2013 is one year, beginning the very day your home is sold in foreclosure and the new owner is issued a certificate of title. Nevertheless, sitting back and ignoring a deficiency may only make things worse and even result in garnished wages; so do consider your options! Deficiency judgments are unsecured debt, therefore filing chapter 7 (or chapter 13) bankruptcy can eliminate your personal liability to repay them. Before making any final decisions however, you should consult with a bankruptcy attorney to assess your unique financial situation and determine whether filing bankruptcy is the best course of action for you.
Stephen K. Hachey, a Florida real estate attorney, can help you navigate this process and make the most of a difficult situation. 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.
If you’re facing foreclosure, you may be wondering whether your lender does in fact have a claim to your property based on poorly or wrongly executed negotiable instruments such as a mortgage Note. Most often, individuals wrongly presume that a blank or unsigned endorsement makes their Note unenforceable as a legal document and as such would make their looming foreclosure illegitimate. However, blank endorsements are commonly known and widely accepted in the legal and business domain, including in the state of Florida.
A mortgage Note or promissory Note is a promise to pay back the corresponding mortgage loan attained to buy a certain property. In Florida, a promissory Note does not require an executed (signed) endorsement from the Note bearer for such to assume its ownership. That is, the financial institution in possession of your mortgage Note is not required to sign the instrument’s endorsement in order to bring forth a claim seeking repayment. Per FL Statute 671.201(21), plaintiffs (most likely your lender or loan servicer) must meet two requirements in order to be considered owner or bearer of the Note: first, they must be in possession of the original instrument and second, the original Note must be endorsed, either in blank or in the plaintiff’s name.
Unfortunately, many Florida homeowners have lost their homes to foreclosure due to poor preparation and misinformation. If you are in danger of losing your home to foreclosure, it is imperative to seek the help of professionals and have the most accurate information possible. If you believe you’re the victim of wrongful foreclosure proceedings, the best course of action is to consult with a knowledgeable attorney to guide you in the right direction and help you keep your home.
Stephen K. Hachey, a Florida real estate attorney, can help you navigate this process and make the most of a difficult situation. 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.
The Protecting Tenants in Foreclosure Act took effect on May 20, 2009 to protect tenants from eviction because of foreclosure on the properties they occupy. This Act applies to cases of foreclosure on a “federally-related mortgage loan, any dwelling or residential real property.”
Under the Protecting Tenants in Foreclosure Act, the immediate successor in interest, the one who is now in charge of the property, must provide tenants with a notice to vacate with at least a 90-day notice before the date is effective. The day when the complete title to a property is transferred to the successor in interest is the date of a “notice of foreclosure.” If you do not have a lease, the purchaser can assume a writ of possession and have you removed immediately.
Tenants are allowed to stay on the property until their lease ends; however, there are two exceptions. The first exception is if the property is purchased after foreclosure with the intent to occupy the property as a primary residence. The second exception is if there is no lease or the lease is terminable at will under law. Although there are these two exceptions for certain situations, tenants must still receive a 90-day eviction notice.
The Protecting Tenants in Foreclosure Act applies to tenants under a “bona fide” lease or tenancy. A lease is “bona fide” only if:
• the mortgagor under the contract is not the tenant
• the lease or tenancy was a product of an arm’s-length transaction
• if the lease or tenancy requires the receipt of rent that is not substantially less than fair market rent or the rent is reduced or subsidized.
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.
Updated: 6/2/23
Can your Homeowners’ Association (HOA) foreclose on your home if you’ve defaulted on assessment fees? Yes! In fact, per Florida law, your homeowners’ association can potentially foreclose your property even if you are current on your mortgage. If you’ve fallen behind on HOA fees, read on for some insights on what to expect.
HOA Foreclosure Rights in Florida
Per Florida legislature (Chapter 720 of Florida Statutes), a homeowners association may suspend your member rights to common areas and amenities within the community and may even charge additional fees for each day assessments are in default. HOAs are generally tenacious about collection, no matter the amount or whether you are behind by one or more payments and with complete disregard to the status of your mortgage, so be proactive about getting caught up on missed payments; once the past due amount reaches over $1,000 your HOA has the authority to place a lien on your property. An assessment lien makes it difficult to sell or refinance your home and could result in a foreclosure whether or not you’re up-to-date on your mortgage.
Consequences of Defaulting on HOA Fees
When a homeowner falls behind on their HOA fees, the consequences can be significant. The HOA may suspend the homeowner’s rights to use common areas and amenities within the community. Moreover, for each day that assessments are in default, the HOA may charge additional fees. It’s worth noting that HOAs are generally diligent about collection, regardless of the amount owed or the number of missed payments.
The Lien and Foreclosure Process
If the past due amount exceeds $1,000, the HOA has the authority to place a lien on the property. An assessment lien can make it difficult to sell or refinance your home. Furthermore, it could lead to foreclosure, irrespective of whether your mortgage is up-to-date.
However, the foreclosure process is not immediate. The HOA is required to file a lawsuit and must wait for the court to assign a foreclosure sale date, either through a summary judgment or a regular trial.
The Position of Your Mortgage
It’s important to understand that even if the HOA initiates foreclosure proceedings, your mortgage remains in the first position. This means that the HOA cannot take possession of your home or receive any money until the first position lien, i.e., your mortgage, has been paid in full.
Seeking Resolution
If you find yourself facing an HOA lien on your property, it’s crucial to act promptly. Contact your HOA immediately. In many cases, homeowners can negotiate an agreement with the HOA board, thereby avoiding the need for costly and time-consuming court proceedings.
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.
Tenants and landlords share many responsibilities, but when it comes to the property the bulk of liability falls to the owner. For the most part, tenant responsibilities amount to operating appliances in a reasonable manner and keeping the premises which they occupy safe and clean.
Unless you yourself destroyed the landlord’s property, neither your landlord nor any other party can hold you responsible for any preexisting disrepairs. If your landlord loses the home in a foreclosure, the new owner will take over liability for any repairs the property may require.
In order to ensure that all goes well at the time of your move, make sure that the property is in the same condition as the day in which you moved in. When you move out, be sure to clean thoroughly, remove all of your possessions from the premises and record any issues or disrepairs your landlord may have neglected or did not get around to address. Once you’ve finished vacating, meet with your landlord or new owner to turn in your keys. If you’re unable to meet with your landlord or the home’s new owner, mail the keys in a padded envelope via certified mail.
Remember, even if the property sells in a foreclosure you are not responsible for damages you yourself did not cause. If your rental is facing foreclosure consult with a local real estate attorney to examine the terms of your lease, discuss your rights as a tenant and plan a proper course of action.
Stephen K. Hachey, a Florida real estate attorney, can help you navigate this process and make the most of a difficult situation. 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.
When you’re a tenant, there’s always a chance that your landlord will sell the property you rent. Generally speaking, a regular sale will not have adverse effects on tenants; your lease will not be terminated, but rather acquired by the new owner and in most cases you will be able to continue to occupy the property. In a foreclosure sale however, things play out a bit differently.
If you’ve received a notice of foreclosure against your landlord, it is wise to file an Answer to the foreclosure noting that you have a lease and pay rent. Moreover, include a copy of your lease, explaining its terms and when it expires. If your landlord is unable to halt the foreclosure proceedings, a judgment is then entered against them and the property is eventually sold at foreclosure sale.
The new property owner may request that you vacate the premises but, as of 2009, the Obama administration passed a nationwide law protecting tenants from a sudden eviction as a result of a foreclosure. Under this law, the new owner must either honor the lease or give the tenant at least 90 days notice prior to eviction.
A foreclosure sale can be a confusing and distressing experience for an unwitting renter, but keep in mind that a foreclosure sale is not an automatic eviction; as a tenant you have rights designed to protect your interests. Stephen K. Hachey, a Florida real estate attorney, can help you navigate this process and make the most of a difficult situation. Contact him at 813-549-0096.
This post was written by Stephen Hachey. Follow Stephen on Google, Facebook, Twitter & Linkedin.
A deficiency judgment is entered against a borrower when proceeds from a short sale, a deed in lieu of foreclosure sale or a foreclosure proceeding on their property are insufficient to pay the entire balance of the original unsecured debt. These judgments are enforced by the courts and how they can affect you varies by state.
Borrowers do not have control over a deficiency judgment as their lender has the legal right to seek full restitution on their debt. Whether or not a foreclosure transaction results in a deficiency judgment is entirely at the lender’s discretion. The amount of a deficiency judgment is generally determined after the original loan principal, interest accrued and attorney fees are deducted from the amount paid by the lender at the time of foreclosure sale.
Though they can opt to cancel the debt and forfeit collecting the deficiency, lenders are more likely to seek repayment from borrowers with greater assets. As a result, people entering foreclosure proceedings often file bankruptcy to avoid having a judgment entered against them or to discharge the debt in its entirety. Therefore, provided that you are an adequate candidate, filing Chapter 7 bankruptcy to avoid a deficiency judgment is completely legal under Florida state law.
When considering bankruptcy in the state of Florida bear in mind that the lender has only a year from the foreclosure sale date to enter a deficiency claim with the courts under the foreclosure proceedings, but up to five years if it files a separate suit to collect the deficiency under the terms outlined in the original promissory note.
In the event that your lender has already foreclosed on the property, a short sale (usually the best way to avoid the pitfalls of foreclosure and the ensuing credit disaster) is no longer a viable option; filing bankruptcy is possibly your best bet against further losses credit or damage.
While the process can be complicated, help is available. Stephen K. Hachey, a Florida real estate attorney, that can help you navigate this process and make the most of a difficult situation. Contact him at 813-549-0096.
This post was written by Stephen Hachey. Follow Stephen on Google, Facebook, Twitter & Linkedin.
Today’s housing market is in shambles and with homeowners upside down on their mortgage or in risk of foreclosure, the future is uncertain for many people. Unfortunately, there are always those who will take advantage of this situation and target desperate homeowners using foreclosure resolution scams. Thankfully, there are several safety measures homeowners can take to avoid being scammed.
1. Always work with a reputable company that is approved by the U.S. Department of Housing and Urban Development (HUD). Visit the HUD website before conducting any business to assure your safety.
2. Foreclosure-related services can be expensive but be careful who you pay. Most HUD-approved counselors provide low cost or free services. Never pay anyone until you know what you are getting and be weary of those who collect high fees before rendering services.
3. Get everything in writing. Many times con artists will guarantee that you can keep your home or promise “sure things”. Don’t take anyone’s word for it, always get everything in writing and keep copies for your records. Never make a verbal agreement.
4. Don’t sign anything you don’t understand. Understand deadlines for court papers and lenders but never sign something that has not been fully explained. Many scammers will try to force you to sign under pressure. Instead take time to review and read all documents before signing. It is preferred that you have a lawyer representing your interest review documents before giving the John Hancock. Additionally, never sign blank forms, incomplete forms, or a page with just a signature line. These documents could be manipulated into something you didn’t agree to.
5. Make sure you are formally released from liability for your mortgage debt before signing any sale of load consumption paperwork. Don’t sign away ownership without being sure you are no longer responsible for the debt. It is recommended that you have a real estate lawyer review any deed transfer papers or any other documents related to your foreclosure.
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.
This post was written by Stephen Hachey. Follow Stephen on Google, Facebook, Twitter & Linkedin.
