West Palm Beach Foreclosure Defense Lawyer
Let Asghar Law Fight to Protect Your Property from the Bank
Have you recently received court papers from your lender threatening to foreclose on your property? Did you attempt to negotiate a loan modification or short sale but your lender won’t cooperate? Are you current on house payments but want to repair your depleting bank account without destroying your credit? If one or more of these apply, please call Asghar Law to speak to an attorney about your options.
Call (561) 609-0032 now or contact our West Palm Beach real estate lawyer online to schedule your consultation.
How Asghar Law Can Help
From the minute you speak with an attorney from Asghar Law, we are confident you will immediately feel a sense of comfort moving forward. We understand a client's worst fear is the unknown, especially when it comes to their home. Our priority is to help you feel confident and hopeful about your situation.
During your initial consultation, we will:
- Listen to you explain the facts to help you better understand your particular situation
- Review any and all legal documents which have been filed in your case
- Educate you on recent court decisions, changes in the law, and loan modification/short sale programs based upon your specific lender
- Discuss all of your options—both good and bad—which are available to you
- Strategically create a plan of action based upon the option which you have elected to pursue
Once you have a better understanding of your options, how the legal process works, and our plan moving forward, the fear, anxiety, and sleepless nights begin to slowly disappear.
If you would like to schedule a consultation with an attorney from our office please call (561) 609-0032.
Residential real estate foreclosure law varies from state to state. States are either considered judicial states—the lender goes through the court foreclosure process once the borrower defaults on their mortgage payment—and non-judicial states—once the borrower defaults on their mortgage payment, the lender is not required to go through the judicial process to obtain possession of the property.
It doesn’t seem fair, does it? Some states allow the borrower to have their day in court before their house can be taken from the lender, while others are forced out of the house once they fall behind on their mortgage payments. However, there is a catch. In a judicial state, the borrower signs a mortgage and a promissory note. However in a non-judicial state the borrower only signs a mortgage.
The difference between a mortgage and a promissory note is:
- Mortgage: Mortgage is a debt instrument (contract) between a lender (bank) and a borrower (you) in which the lender agrees to loan money to the borrower in order to purchase a property. The mortgage is secured by collateral (house) in case the borrower defaults on his loan payments.
- Promissory note: A promissory note is a separate legal debt instrument (contract) between the lender and the borrower. The borrower agrees to pay the lender a specific dollar amount either at a fixed or determinable future time or based upon a breach in a specific term of a contract (such as missing a mortgage payment).
If the borrower does not make their mortgage payment to the lender under a promissory note, the lender can then initiate a foreclosure action in court to have your house auctioned to another buyer for less than you still owe the lender. After that, the lender can still come after you for the outstanding balance remaining. This is called the deficiency judgment which we will talk about later.
Florida is a judicial state, which means the lender must go through the judicial process in order to foreclose on your property and obtain your home. This also means you as the borrower may also be faced with a large amount of money if the bank is able to foreclose on you and obtain a deficiency judgment.
What Are Your Options?
One way to avoid penalties is through reinstating your loan. If you missed one to three payments mortgage payments because of unexpected financial expenses, reinstating the loan can help you avoid foreclosure.
Another option is a loan modification, where you and your lender adjust the terms of your mortgage and promissory note.
There are three types of ways a lender will agree to modify the terms of a loan:
- Reduce the interest rate
- Extend the term of the loan
- Reduce the principle balance
Although the three options are available to the lender, they rarely reduce the principle balance. Instead, they may help by most likely reducing the interest rate and/or extending the length of the loan.
You may also consider a short sale where you and the lender sell your home for less than what you currently owe. It is highly recommended you have an attorney review any short sale documents before you close. If you are not careful, the lender may agree to the sale of the house but still go after you for the remaining balance.
Finally, Deed in Lieu is the option where the lender takes back the property without going after you for the balance owed. This means the lender agrees to potentially absorb a loss of money which you are contractually obligated to pay, as well as pay additional money to pay for electric, air conditioning, and other additional costs while they wait for a realtor to sell the property. This option usually only reached through litigation.
Foreclosure Process & Basic Terminology
The first thing a lender should do is issue a default letter, giving you up to 30 days in which to pay the outstanding balance of missed payments. If you do not pay the balance or fail to establish a payment plan to catch up, the lender will begin a foreclosure action.
You will know the foreclosure process has begun once you are served a packet of papers by a process server. This packet includes a Summons, Lis Pendens, and Complaint. You then have 20 days to file an answer. It is important to immediately call and speak to an attorney immediately.
Your answer should either admit, deny, or state you are without knowledge to each allegation in the complaint. The defendant should also raise affirmative defenses if any are available to them.
Discovery is the opportunity for parties to exchange information related to the case with the opposing party.
Discovery is broken into a few categories:
- Requests for admissions
- Request for production
Discovery is not mandatory, so don't wait for the Lender to hand over their files, or requests files from you.
Motion for Default
If you fail to file an answer within 20 days, the lender may file a Motion for Default. Once a Default is entered by the clerk, the lender can immediately file a Motion for Summary Judgment.
Summary Judgment is a method of deciding an issue or a whole case without a trial. If you did not file an answer, the clerk enters a default against you, and the judge most likely will rule in favor of the lender and schedule a foreclosure.
Case Management Conference
To determine whether the case is ready for trial or if there are pending matters which need to be addressed—unheard motions, pending discovery requests, and recent changes in counsel—these can be brought up at a Case Management Conference. Once there are no more pending matters, the judge will now schedule a trial to take place in the near future.
Foreclosure trial is final judgment day. These can be as short as an hour or as long as a whole day in. This all depends on the strength of your case and whether or not you have a qualified attorney. It is highly recommended you attend the trial if you are interested in keeping your home. After opening statements are given, the lender will begin questioning witnesses and entering documents into evidence to support their case. A well-prepared defense attorney will cross examine the lender's witnesses and try and impeach their credibility or object to the documentation being entered into evidence.
Your attorney will then be allowed to call witnesses on your behalf and enter evidence which negates the lender's case. The lender can cross examine witnesses and object to documentation being entered into evidence. You may or may not be called as a witness, so make sure your attorney prepares you prior to trial so you know what to expect if called.
Finally, the judge will make a final determination on the case. Remember, it is up to the lender to prove their case by preponderance of the evidence, so don't give up without speaking to an attorney.
If the judge decides in the lender's favor at trial, a foreclosure auction will usually be scheduled 30-45 days after the entry of final judgment/trial. Notice of the sale must be published for two consecutive weeks in a newspaper of general circulation in the county which the property is located. The property will be sold to the highest bidder.
If there remains a deficiency after the property is sold to the highest bidder, the lender may obtain from the court what is called a Deficiency Judgment. If the judge grants a Deficiency Judgment, the lender may exercise collection remedies such as garnishing of your wages against.
If you would like to schedule a consultation with an attorney, dial (561) 609-0032 now.