Florida foreclosures usually take a long time. In fact, the state has one of the lengthiest foreclosure timelines in the country. But under the proper conditions, the foreclosing party (the original lender or the subsequent loan owner) can significantly shorten the time it takes to complete one. Florida law provides a procedure designed to speed up the process in uncontested cases or in cases where the homeowner doesn’t have a genuine defense.
Read on to learn about Florida’s fast-track foreclosure procedures and how to fight this kind of foreclosure. By challenging a fast-track foreclosure you could get the process significantly delayed, giving you more time to live in the home without making a payment or to work out a loss mitigation option.
The process starts when the lender or current loan owner (the plaintiff) files a complaint for foreclosure with the court. To fast track the foreclosure of an owner-occupied property, the plaintiff then files a motion (a request) for an order to show cause why the foreclosure should not proceed. After getting the request, the court reviews the complaint to make sure it’s verified (that is, the plaintiff verified under penalty of perjury that it has the right to foreclose under the promissory note) and that the complaint alleges a cause of action to foreclose. (Fla. Stat. § 702.10, Fla. Rule of Civ. Pro. 1.115).
If the court finds that the foreclosure complaint is proper and satisfies all legal requirements, it will issue an order directing you (the borrower) to show cause why a final judgment should not be entered against you. The order to show cause will be served to you, perhaps along with the complaint, and you’ll get a limited amount of time to respond. The court also sets a hearing date.
Then, the burden of proof shifts to you to show whether the foreclosure is improper. To fight the foreclosure, you have to file a response—generally, an “Answer” or a “Motion to Dismiss.” In the response, you should raise any genuine issues of material fact or legal defenses you have showing why the foreclosure shouldn’t go forward. You’ll also have to present your defenses at the hearing.
The hearing will be no sooner than the later of 20 days after you’re served with the order to show cause or 45 days after service of the initial complaint (or no sooner than 30 days after the first publication, if the complaint is served through publication). (Fla. Stat. § 702.10). At the hearing, you’ll need to present your specific, allowable defenses to prevent the foreclosure.
If you waive the right to be heard—like by failing to file a response, filing a response that doesn’t contest the foreclosure, or by not showing up at the hearing—or you lose at the hearing because your defenses are insufficient, the court can enter a final judgment of foreclosure and order the clerk of the court to conduct a foreclosure sale. But if you raise a potentially legitimate defense to foreclosure, the court won’t enter a final judgment. Instead, because the case is now at issue, it’s ready to be set for trial and discovery will begin.
The plaintiff can’t get a deficiency judgment in a fast-track foreclosure, even if it gets a final judgment at the show cause hearing. But it may file a separate lawsuit later on to get a deficiency judgment if the proceeds from the foreclosure sale aren’t sufficient to pay off your total mortgage debt. (Learn more about deficiency judgments after foreclosure in Florida.)
If you’re facing a foreclosure (fast-track or regular) and want to challenge the action, consider talking to a local foreclosure lawyer. A foreclosure lawyer can tell you the procedural requirements for filing a response, advise you about potential defenses, represent you in court, and give you information about any other options you might have in your particular circumstances.