Florida is a judicial foreclosure state. Therefore, a bank or HOA seeking to foreclose a home must receive approval from a judge. See Florida Statute 45.031. During the court process, the homeowner will have an opportunity to raise defenses and challenge the foreclosure. Therefore, if you are being threatened with foreclosure you should contact an experienced Tampa foreclosure defense attorney right away. A skilled Tampa foreclosure defense attorney may be able to raises defenses to the foreclosure and dismiss the case.
Foreclosure Defense of Conditions Precedent
One possible foreclosure defense is that the bank failed to fulfill all of the conditions precedent to foreclosure. A condition precedent is an event which must occur before performance under a contract becomes due. A common condition precedent in foreclosure cases is the bank’s requirement to send the homeowner notice of the default. Notice of default is just one example, there may be many other conditions precedent for the bank as well. For more information on the possible conditions precedent your lender may be required to fulfill contact a foreclosure defense law firm in Tampa for assistance.
Lack of Notice of Default
Many mortgages include a requirement the bank notify the homeowner the loan is in default prior to filing foreclosure. This condition is commonly found in the 22nd paragraph of the mortgage. The notice to the homeowner must indicate the action required to cure the default. Additionally, the notice must provide at least 30 days to cure the default before the bank can initiate foreclosure. Once the borrower raises this issue as an affirmative foreclosure defense the bank will have the burden of proving the notice was sent to the homeowner pursuant to the mortgage. The bank will have to prove they sent a notice that complied with all of the conditions set forth in the mortgage. See Wells Fargo v. Samaroo.
Notice Clause in Mortgages
Below is an example of a common notice of default clause in a mortgage:
Lender shall give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Instrument. The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument, foreclosure by judicial proceeding and sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to assert in the foreclosure proceeding the non-existence of a default or any other defense of Borrower to acceleration and foreclosure.
As like most mortgages, the sample notice of default clause above is from a mortgage that contains 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. If there is no acceleration clause, the bank will be unable to demand the full loan amount.
Foreclosure Defense Law Firm in Tampa
If your mortgage company is threatening you with foreclosure call us to speak with a Tampa foreclosure defense lawyer. Homeowners have many foreclosure defenses available, and we want to make sure our clients choose the best strategic plan for their family. 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.