Florida is a judicial foreclosure state. Therefore, the bank must go to court and receive approval from a judge before foreclosing on a home. Not all states are judicial foreclosure states, only 22 states require a judicial foreclosure process. Generally, a Florida foreclosure case must be filed in the circuit court for the county where the property is located. Under Florida foreclosure law, a homeowner is not entitled to a jury trial. Instead, all Florida foreclosure cases are ruled on by a judge, not a jury See Florida Statute 702.01. If you are being threatened with foreclosure, contact a Tampa foreclosure defense lawyer, there may be legal defenses to stop the foreclosure.
When a foreclosure case is filed in Florida the homeowner will have the opportunity to challenge the foreclosure and assert defenses in court. There are many defenses under Florida foreclosure law that may be applicable in a foreclosure case, including procedural failures by the bank and substantive legal defenses. Homeowners facing foreclosure should contact a Tampa foreclosure defense law firm for legal assistance right away. Typically, the sooner an experienced attorney gets involved the greater the chances are of preventing the foreclosure.
Statute of Limitations for Foreclosure
Statute of limitations is a time limit set by law on when you can bring a lawsuit for a specific act. If a case is not filed within the statute of limitations that case is barred. Under Florida foreclosure law, the statute of limitations for a bank to file foreclosure is 5 years. See Florida Statute 95.11.
The statute of limitations in Florida for foreclosure is 5 years; however, it is not always as clear as it may seems. If you need help with a foreclosure statute of limitations issue contact a Tampa foreclosure defense lawyer for assistance. For instance, in many circumstances the 5 year statute of limitations does not begin when the homeowner misses a payment, instead it begins sometimes years later. Therefore, it is important to seek the advice of an experienced Tamoa foreclosure defense lawyer when you think there is a statute of limitations issue in your case. It is up to the homeowner to raise a statute of limitations defense; the bank or judge will not address a statute of limitations issue unless the homeowner first makes the allegation.
Florida Foreclosure Law for Mortgages With an Acceleration Clause
The vast majority of mortgages contain an acceleration clause. Acceleration refers to the bank demanding the full amount of the mortgage, not just the missed monthly payments. If the loan does not have an acceleration clause the lender can only demand payment of the amounts past due. The lender can only demand the full loan amount if there is an acceleration clause.
The statute of limitations on mortgages without an acceleration clause begins to run on the date each payment becomes due. Therefore, under Florida foreclosure law, a bank must file a lawsuit within 5 years of the payment due date. On the other hand, if the loan contains an acceleration clause the statute of limitations begins to run when the loan is accelerated, not the date the payment was due. In some cases, the bank does not accelerate the loan until years after the payment due date. Simply missing a payment does not automatically accelerate the loan, the bank must take affirmative action to accelerate the debt. See Reed v. Lincoln.
Winning a Case on Statute of Limitations
If the bank files for foreclosure more than 5 years from the date the loan is accelerated, it may be dismissed for failure to comply with Florida foreclosure law for statute of limitations. Additionally, under Florida Statute 57.105, if the case gets dismissed the bank may be held responsible for reimbursing you for all the fees you paid to your foreclosure defense lawyer in Tampa. However, it does not mean the homeowner will be able to keep the house free and clear of the mortgage. The bank may have the ability to file for foreclosure again at a later time.
Under Florida foreclosure law, if the bank does file for foreclosure again they will not be able to rely on the same missed payment date they did in the earlier case. The bank will have to accelerate the loan within 5 years of filing the new case. Additionally, the case must be based on a different missed payment date. Further, the bank will be barred from collecting payments that are due more than 5 years before the subsequent acceleration date.
Foreclosure Defense Law Firm in Tampa
If your mortgage company is threatening you with foreclosure contact a foreclosure defense law firm in Tampa for legal counsel. Homeowners have many options when it comes to fighting foreclosure. Whether you want to keep your home and prevent foreclosure or walk away from your home without being responsible for any of the debt, Florida Law Advisers, P.A. can help. Our initial consultation is free and we offer flexible payment options to all of our clients. To speak with a foreclosure defense lawyer in Tampa call us today at 800 990 7763.