To speed up the Florida foreclosure process, governor Rick Scott signed a foreclosure bill (House Bill 87) into law on June 7, 2013. The main goal of this law was to speed up the Florida foreclosure process. Ultimately, House Bill 87 changed foreclosure law to both the benefit and detriment of homeowners. Specifically, the law:
Read on to learn more about these changes affect Florida homeowners facing foreclosure.
In Florida, foreclosures are judicial, which means the lender must file a lawsuit in state court. The lender initiates the process by filing a complaint with the court and having it served to the borrower, along with a summons. If you lose the case, the court will enter a judgment of foreclosure and the property will be sold to satisfy the debt. (To learn more about Florida foreclosure procedures generally, see Florida Foreclosure Laws and Procedures.)
House Bill 87, sometimes called the Florida Fair Foreclosure Act, made several substantive changes to how foreclosures are conducted in the state. But just how fair is the law to distressed homeowners? In actuality, the law is both harmful and beneficial to homeowners.
Because the overriding goal of the law was to speed up the foreclosure process, it can be detrimental to homeowners.
Florida law already provided for a procedure designed to speed up the foreclosure process in uncontested cases or in cases where the homeowner does not have a legitimate defense. Previously, after the foreclosure complaint had been filed, the mortgagee (the lender) could request an order to show cause why the foreclosure should not proceed. If the defendant homeowner waived the right to be heard (by failing to file a response, by filing a response that does not contest the foreclosure, or by not showing up at the hearing) or lost at the hearing, the court could enter a final judgment of foreclosure and order the clerk of the court to conduct a foreclosure sale. Now, any lienholder—including homeowners’ associations and condo associations—may make a request to route foreclosures through the expedited process rather than through a typical court proceeding. (Fla. Stat. § 702.10).
In a fast-track foreclosure, you'll have less time to arrange a loan modification, forbearance, repayment plan, short sale, or deed in lieu of foreclosure, or to prepare to transition out of the property. (To get details about how the expedited process works, see Fast-Track Foreclosure Process in Florida.)
Additionally, the law makes foreclosure judgments final. Any action to set aside, invalidate, or challenge the validity of a final judgment of foreclosure is limited to monetary damages when the lender meets certain conditions. This means that a victim of a fraudulent foreclosure will not get the home back if:
With this provision, the law strengthens the finality of foreclosure judgments once the lender transfers the foreclosed property to a new owner. The former owner can continue to pursue money damages against the lender, but can't regain title to the property.
On the other hand, the law provides a couple of consumer protections.
When you took out your loan, you signed both a mortgage and a promissory note. The promissory note is what establishes your liability to pay your mortgage loan. The mortgage creates a lien on the property. The holder of the note is the only party that has the right to foreclose on the property.
As of July 1, 2013, the plaintiff (the owner of the loan) must prove its right to foreclose by filing additional items along with the foreclosure complaint, including:
This requirement helps to ensure that the proper entity is pursuing the foreclosure—that is, the foreclosing party has "standing" to foreclose.
When a lender forecloses, the total debt the borrower owes sometimes exceeds the foreclosure sale price. The difference between the total debt and the sale price is called a “deficiency.” In some states, including Florida, the lender can seek a personal judgment (a "deficiency judgment") against the borrower to recover the deficiency. Generally, once the lender gets a deficiency judgment, the lender may collect this amount from the borrower.
Effective July 1, 2013, the period of time in which the lender may seek a deficiency judgment is reduced from five years to one year for residential properties with no more than four dwelling units. The one-year time frame starts on the day after the court clerk issues a certificate of title to the buyer who purchased the home at the foreclosure sale. (Be aware that, in certain circumstances, the lender can get a deficiency judgment as part of the foreclosure action.)
Additionally, the deficiency judgment can't exceed the difference between the judgment amount and the fair market value of the home as of the date of sale if the property is:
Deficiency judgments for short sales involving owner-occupied residential properties are limited to the difference between the outstanding debt and the fair market value. (Read more about deficiency judgments in Florida.)
If you need more information about how foreclosures work in Florida, or want to learn whether you have any potential defenses to a foreclosure, consider talking to a foreclosure lawyer. For more articles on foreclosure in Florida, visit our Florida Foreclosure Law Center.