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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What is a Special Warranty Deed?
A special warranty deed is a legal instrument used in real estate transactions that provides the buyer, or grantee, with a guarantee from the seller (grantor) against any legal issues or claims against the property that arose during the time the seller owned it. Unlike a general warranty deed, the protection offered by a special warranty deed does not cover any defects in title that may have existed before the seller’s ownership.
Protection for Buyers
The special warranty deed strikes a balance between the broad protection of a general warranty deed, which covers all title defects, and a quitclaim deed, which offers no warranties at all. It ensures that the seller is responsible for any title issues or claims that emerged under their ownership, but not for those that may have been present before. 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.
Legal Considerations
While a special warranty deed offers some assurance regarding the title’s integrity, it does not eliminate the need for thorough due diligence. Buyers should consider title insurance and are strongly advised to consult with a real estate attorney. An attorney can provide insights into how this deed fits within the broader context of your real estate transaction and help mitigate potential risks.
Comparing Deed Types
An attorney or law firm like us can help determine the type of deed to use, but in short, you’ll want to consider the following:
- General Warranty Deed: Offers the most comprehensive protection against all title defects, past and present.
- Quitclaim Deed: Provides no warranty, passing only the interest the seller has at the time of the sale, if any.
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.
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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When a mortgage lender forecloses on a home and the amount that is owed is more than the value of the home, the lender has the option to pursue a deficiency claim for the outstanding amount. This practice was not terribly common during the years of real estate profits because any time a foreclosure occurred, the lender could count on selling the property for at least the amount of money that was owed. Since property values have plummeted, lenders are finding themselves having to perform more foreclosures, and the properties they are taking back from borrowers are not worth as much as the loans those borrowers have defaulted on. Therefore, deficiency judgments are on the rise.
In Florida, a lender has the right to file a deficiency claim against a borrower up to one year after the date of foreclosure. When the foreclosed property is sold, they have another 5-year window to file a claim. With the value of Florida properties decreasing in recent years, lenders in the state are more likely to sue for deficiency claims against their borrowers. Lenders who are left with second mortgages are especially likely to file claims. The number of deficiency judgments filed by lenders on second mortgages has risen sharply since 2009.
If you’re worried about a deficiency judgment being won against you, talk to an attorney experienced in foreclosure law. Stephen K. Hatchey, a Florida foreclosure attorney, can guide you through the process. To receive a free consultation, contact our offices at 813-549-0096.
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A deficiency claim can be made by a mortgage lender against a borrower when there is a foreclosure and the amount owed on the property, including attorney’s fees and court costs, is more than the amount of money that the property is worth. Deficiency claims in Florida were once rare, but with the value of homes deteriorating over the last few years, lenders have been more mindful about making back the money they lose on foreclosures, short sales and deeds in lieu of foreclosure. In order to have any chance at receiving a judgment against borrowers, lenders need to follow the deficiency claim process set forth by Florida law.
A foreclosure does not automatically lead to a deficiency judgment in Florida. A lender will have to file a claim within one year of the foreclosure. There needs to be a motion made that declares the value of the property and the amount of the deficiency. The borrower will have the opportunity to contest the lender’s valuation of the foreclosed property. That will prompt an evidentiary hearing, at which the lender will have to present evidence that the property’s value is what the lender alleges it is.
While Florida statutes give the lender a year after the foreclosure date to file for a deficiency judgment, lenders have up to five years after the foreclosure sale date to initiate a new claim. There are two opportunities for lenders; one year after the foreclosure date and five years after the foreclosure sale date. If you find yourself in the middle of a deficiency claim, consider finding a real estate attorney. Stephen K. Hatchey, a Florida real estate attorney, can guide you through the process. To receive a free consultation, contact our offices at 813-549-0096.
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