Proposed rules dealing with foreclosures (2022)

Proposed rules dealing with foreclosures

September 15, 2009 RegularNews

Proposed rules dealing with foreclosures

The Supreme Court Task Force on Residential Mortgage Foreclosure Cases (Task Force) has submitted to the Florida Supreme Court a petition to amend the Florida Rules of Civil Procedure and Forms for Use with the Rules of Civil Procedure. The Task Force proposes an amendment to Florida Rule of Civil Procedure 1.110 (General Rules of Pleading) and proposes two new forms: an Affidavit of Diligent Search and a Motion to Cancel and Reschedule Foreclosure Sale. The amendment and forms are meant to facilitate the early and equitable resolution of residential mortgage foreclosure cases. The Task Force also proposes amendments to form 1.997 (Civil Cover Sheet) that are being considered in another case, In re Amendments to the Florida Rules of Civil Procedure—Management of Cases Involving Complex Civil Litigation, SC08-1141. The Court invites all interested persons to comment on the Task Force’s proposals, which are reproduced in full below, as well as online at http://www.floridasupremecourt.org/decisions/proposed.shtml. An original and nine paper copies of all comments must be filed with the Court on or before October 1, 2009, with a certificate of service verifying that a copy has been served on the Task Force chair, The Honorable Jennifer D. Bailey, 73 W. Flagler Street, Suite 1307, Miami, Florida 33130-4764, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The Task Force chair has until October 12, 2009, to file a response to any comments filed with the Court. Electronic copies of all comments also must be filed in accordance with the Court’s administrative order In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004).

IN THE SUPREME COURT OF FLORIDA

IN RE AMENDMENTS TO THE FLORIDA RULES OF CIVIL PROCEDURE, SC09-1460

RULE 1.110. GENERAL RULES OF PLEADING

(a) [no change]

(b) Claims for Relief. A pleading which sets forth a claim for relief, whether an original claim, counter­claim, crossclaim, or third-party claim, must state a cause of action and shall contain (1) a short and plain statement of the grounds upon which the court’s jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) a short and plain statement of the ultimate facts showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief to which the pleader deems himself or herself entitled. Relief in the alternative or of several different types may be demanded. Every complaint shall be considered to demand general relief.

When filing an action for foreclosure of a mortgage on residential real property the complaint shall be verified. When verification of a document is required, the document filed shall include an oath, affirmation, or the following statement:

“Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief.”

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(c) – (h) [no change]

Committee Notes
[no change]

NEW FORM FOR AFFIDAVIT OF DILIGENT SEARCH AND INQUIRY

I, (full legal name) _________________________ (individually or an Employee of ____________________), being sworn, certify that the following information is true:

      I have made diligent search and inquiry to discover the current residence of ____________________. Refer to checklist below and identify all actions taken (any additional information included such as the date the action was taken and the person with whom you spoke is helpful) (attach additional sheet if necessary):

[√ all that apply]

_____ Inquiry of Social Security Information

_____ Telephone listings in the last known locations of defendant’s residence

_____ Statewide directory assistance search

_____ Internet people finder search {specify sites searched}

_____ Voter Registration in the area where defendant was last known to reside.

_____ Nationwide Masterfile Death Search

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_____ Tax Collector’s records in area where defendant was last known to reside.

_____ Tax Assessor’s records in area where defendant was last known to reside

_____ Department of Motor vehicle records in the state of defendant’s last known address

_____ Driver’s License records search in the state of defendant’s last known address.

_____ Department of Corrections records in the state of defendant’s last known address.

_____ Federal Prison records search.
_____ Regulatory agencies for professional or occupational licensing.

_____ Inquiry to determine if defendant is in military service.

_____ Last known employment of defendant.

{List all additional efforts made to locate defendant}
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________

Attempts to Serve Process and Results
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________

      _________________________ current residence

[√ one only]

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_____ a. _________________________ ‘s current residence is unknown to me

_____ b. _________________________ ‘s current residence is in some state or country other than Florida and _________________________ ‘s last known address is:

      ________________________________________________________
      ________________________________________________________

_____ c. The _________________________ , having residence in Florida, has been absent from Florida for more than 60 days prior to the date of this affidavit, or conceals him (her) self so that process cannot be served personally upon him or her, and I believe there is no person in the state upon whom service of process would bind this absent or concealed ____________________.
I understand that I am swearing or affirming under oath to the truthfulness of the claims made in this affidavit and that the punishment for knowingly making a false statement includes fines and/or imprisonment.

Dated: _______________ _________________________________________
Signature of Plaintiff
Printed Name: _____________________________
Address: _________________________________ City, State, Zip:____________________________
Phone:___________________________________
Telefacsimile:_____________________________

STATE OF ____________________
COUNTY OF __________________

Sworn to or affirmed and signed before me on this _____ day of _____________________, 2009 by __________________________________.

                          NOTARY PUBLIC, STATE OF _______________

                          (Print, Type or Stamp Commissioned Name of Notary Public)

_____ Personally known
_____ Produced identification
Type of identification produced _______________________________________

NOTE: This form is used to obtain constructive service on the defendant.

NEW FORM FOR MOTION TO CANCEL AND RESCHEDULE FORECLOSURE SALE

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Comes now, Plaintiff, by and through undersigned counsel, and respectfully moves this Court to cancel and reschedule a mortgage foreclosure sale and as grounds therefore states as follows:

1. On this Court entered a Summary Final Judgment of Foreclosure pursuant to which a foreclosure sale was scheduled for, 20.

2. Said sale needs to be canceled for the following reason(s):

a_______ Plaintiff and Defendant are continuing to be involved in loss mitigation;

b._______ Defendant is negotiating for the sale of the property which is the subject of this matter and Plaintiff is desirous of allowing the Defendant an opportunity to sell same and pay off the debt which is due and owing to Plaintiff.

c.________ Defendant has entered into a contract to sell the property which is the subject of this matter and Plaintiff is desirous of allowing the Defendant an opportunity to consummate the sale and pay off the debt which is due and owing to Plaintiff.

d.________ Defendant has filed a Chapter ____ Petition under the Federal Bankruptcy Code;

e.________ Plaintiff has ordered but has not received a statement of value/appraisal for the property;

f. _______ Plaintiff and Defendant have entered into a Forbearance Agreement;
g.________Other
_____________________________________________________________ _____________________________________________________________ _____________________________________________________________

3. Should this Court cancel the foreclosure sale Plaintiff respectfully requests that the Court re-schedule same.

WHEREFORE PREMISES CONSIDERED Plaintiff requests that this Court cancel the foreclosure sale previously scheduled for and to re-schedule same.
______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

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I hereby certify that a copy of the foregoing Motion has been furnished by U.S. mail postage prepaid, facsimile or hand delivery to this ______ day of, 20.

NOTE. This form is used to move the court to cancel and reschedule a foreclosure sale.

FAQs

How can I avoid foreclosure? ›

Here are some foreclosure prevention alternatives to consider when you think foreclosure is on the horizon.
  1. Reinstate Your Loan. ...
  2. Enter Into a Repayment Plan. ...
  3. Enter Into a Forbearance Agreement. ...
  4. Work Out a Loan Modification. ...
  5. Refinance. ...
  6. File for Chapter 7 or Chapter 13 Bankruptcy.

What is the most common method of foreclosure? ›

The Most Commonly Used Foreclosure Procedure In the State

A foreclosure can be either: judicial (the foreclosing party files a lawsuit, and the case goes through the court system) or. nonjudicial (the foreclosing party follows a set of state-specific, out-of-court procedural steps to foreclose).

How do you use foreclose in a sentence? ›

Examples of foreclose in a Sentence

They've been unable to make their mortgage payments, and the bank has threatened to foreclose. The bank has threatened to foreclose their mortgage.

What is foreclosure in basic terms quizlet? ›

What is foreclosure in basic terms? A borrower defaults on a loan, causing the lender to force the sale of the property to free up its investment.

What are the ten steps people should take to avoid foreclosure? ›

Below are ten things you can do to try to prevent a foreclosure from happening.
  • Gather your loan documents and set up a case file. ...
  • Learn about your legal rights. ...
  • Organize your financial information. ...
  • Review your budget. ...
  • Know your options. ...
  • Call your servicer. ...
  • Contact a HUD-approved housing counselor.

What are foreclosure alternatives? ›

Your mortgage servicer might offer the following options as an alternative to foreclosure:
  • Forbearance. This option temporarily suspends payments, allowing you time to make up the shortfall. ...
  • Repayment Plan. ...
  • Loan Modification. ...
  • Refinance. ...
  • Partial Claim. ...
  • Forgiving a Payment.

What is foreclosure in law? ›

Foreclosure is a catch-all term for the processes used by mortgage-holders, or mortgagees, to take mortgaged property from borrowers who default on their mortgages. Foreclosure, like mortgages generally, is governed by the law of the place where the mortgaged thing is.

What are the 2 kinds of redemption in case of foreclosure? ›

After the property is auctioned off at the foreclosure sale, you may either redeem the property within the period allowed by law or file a case to annul the mortgage and/or the extrajudicial foreclosure sale, should the circumstances warrant it.

How can a foreclosure process be temporarily stalled? ›

You can stop a foreclosure in its tracks—at least for a while—by filing for bankruptcy. Filing for Chapter 7 bankruptcy will stall a foreclosure, but usually only temporarily. You can use Chapter 7 bankruptcy to save your home if you're current on the loan and you don't have much equity.

What is foreclosure in simple words? ›

Foreclosure is a process that begins when a borrower fails to make their mortgage payments. When a home is foreclosed upon, the lender typically repossesses and attempts to sell the house. This happens because mortgage loans are secured by real estate, meaning your home is used as collateral.

What is an example of foreclosure? ›

Example of Foreclosure Events: The 2007 Housing Market Crash

Home sales and prices soared, largely fueled by subprime mortgages. Eventually, the bubble burst when home prices started to drop, causing a full collapse of the housing market and, inevitably, a large-scale economic crisis.

What is identity foreclosure example? ›

Identity foreclosure occurs when people think they know who they are, but they have not even explored their options yet. Perhaps they grew up in a Christian home, attended Christian schools, and associated primarily with others in the faith. They may identify as a Christian without ever questioning their belief system.

What's the most common cause of default by homeowners? ›

While missing monthly payments is the most common way for a home loan default to occur, it's not the only one. Homeowners can also go into default if they: Fail to pay their property taxes. Fail to pay their homeowners insurance.

What is a strict foreclosure quizlet? ›

In a strict foreclosure, a lender takes title to the liened property directly. a lender receives the proceeds from the forced sale of the liened property. the defaulting owner does not have the opportunity to prevent the foreclosure by paying the amounts owed.

What action must the lender take when a notice? ›

What action must the lender take when a notice of reinstatement occurs? The lender must dismiss the suit and continue the mortgage.

What is a way to avoid foreclosure quizlet? ›

what is one way to avoid foreclosure? short sale. After a borrower makes the final payment of home mortgage, there will still be a lien on property until the lender records.. satisfaction of mortgage.

What advice would you give to prospective debtors to avoid foreclosure? ›

Below are some tips on avoiding foreclosure.
  • Don't ignore the problem. ...
  • Contact your lender as soon as you realize that you have a problem. ...
  • Open and respond to all mail from your lender. ...
  • Know your mortgage rights. ...
  • Understand foreclosure prevention options. ...
  • Contact a HUD-approved housing counselor. ...
  • Prioritize your spending.
5 Feb 2021

Can you recover from foreclosure? ›

A foreclosure can cause your credit scores to drop dramatically, but it's possible to bounce back from one. After your home is foreclosed upon, you can immediately start taking steps to restore your credit.

What are the 4 C's in lending? ›

Standards may differ from lender to lender, but there are four core components — the four C's — that lender will evaluate in determining whether they will make a loan: capacity, capital, collateral and credit.

Can a mortgage company refuse payment? ›

Your mortgage company may refuse payment from you if they have started the foreclosure process. They may attempt to collect the full amount of arrears that you owe to bring your account up to date. If you go to court, you can force the lender to accept payments and start a payment plan to catch up.

What is a loan modification foreclosure? ›

A mortgage loan modification is one of the most common types of loss mitigation, the term for techniques to prevent a foreclosure. The modification changes the original terms of the promissory note to reduce the amount of the monthly payments, usually while lengthening the term of the mortgage to compensate.

What is the first step in the foreclosure process? ›

  1. Phase 1: Payment Default.
  2. Phase 2: Notice of Default.
  3. Phase 3: Notice of Trustee's Sale.
  4. Phase 4: Trustee's Sale.
  5. Phase 5: Real Estate Owned (REO)
  6. Phase 6: Eviction.
  7. Foreclosure and COVD-19 Relief.
  8. The Bottom Line.

What is a foreclosure statement? ›

When a borrower repays the entire outstanding loan amount in one payment rather than in EMIs, they need to write a letter for the foreclosure of the loan, which is known as the foreclosure letter.

What is a foreclosure notice? ›

Foreclosure is when someone who has lent money to a person or organization so that they can buy property takes possession of the property because the money has not been repaid.

Who has the right of redemption of property? ›

The mortgagor is entitled to get back his property on payment of the principal and interest after the expiry of the due date for the repayment of the mortgagee's money. This right of the mortgagor is called the Right of Redemption. Section 60 of the Transfer of Property Act reserves this right.

Can clients redeem their foreclosed assets? ›

All homeowners, no matter what state they reside in, have the right to redeem the property and save a home from foreclosure by paying off the entire mortgage balance, plus fees and costs, before a foreclosure sale. This right is called the "equitable right of redemption."

Which type of foreclosure does not require the action of the court? ›

Non-judicial foreclosures do not require a court process. If a mortgage has a power-of-sale clause, the lender can sell the property without going to court if the borrower defaults in a way that triggers the foreclosure rights according to the terms of the loan.

What is foreclosure defense? ›

In simple terms, Foreclosure Defense is the fight that you engage in with your lender, who is attempting to foreclose on your property. The goal of your defense is to either stall or stop the foreclosure in its entirety.

Which of these is a reason for a foreclosure? ›

Major reasons for foreclosures are:

Job loss or reduction in income. Debt, particularly credit card debt. Medical emergency or illness resulting in a lot of medical debt. Divorce, or death of a spouse or partner who contributed income.

What is the difference between foreclosure and short sale? ›

Short sales are voluntary actions by the homeowner; they require approval from the lender. Foreclosures are involuntary for the homeowner; the lender takes legal action to take control of and sell the property. Homeowners who use short sales are responsible for any deficiencies payable to the lender.

What is it called when the bank takes your house? ›

What Is Foreclosure? Foreclosure is when the bank or mortgage lender takes possession of property that is in default, often against the homeowner's will. Your mortgage agreement states that if you stop making payments on your loan, the bank can reclaim the property through foreclosure.

Does foreclosure reduce interest? ›

What Is Foreclosure Of A Loan? Foreclosure is a legal process where the borrower repays his debt in full before the term of the loan ends. This helps them in significantly reducing the interest liability and closing down the loan account well before its tenure.

Which of these is a reason for a foreclosure quizlet? ›

Which of these is a reason for a foreclosure? The borrower defaults on the mortgage loan.

How does a foreclosure affect you? ›

A foreclosure is a significant negative event in your credit history that can lower your credit score considerably and limit your ability to qualify for credit or new loans for several years afterward.

What is the difference between foreclosure and repossession? ›

In foreclosure, a house is sold as collateral after the homeowners default on their loan. Housing repossession is a more general term for when a mortgage lender or loan provider takes ownership of a property because the owners haven't paid their bills. It's a consequence of foreclosure.

What is pre foreclosure? ›

Pre-foreclosure is the time period that begins when a borrower defaults on a mortgage and ends when the lender either forecloses the property or agrees to an arrangement that allows the homeowner to stay put.

What are the 4 types of identity status? ›

Erikson's observations about identity were extended by Marcia, who described four identity statuses:identity diffusion, foreclosure, moratorium and identity achievement. The present article describes the features of these four categories of identity status.

What type of goals is a person committed to in identity foreclosure? ›

Identity foreclosure: have committed themselves to values and goals without exploring alternatives. They accept a ready-made identity chosen for them by authority figures-usually parents but sometimes teachers, religious leaders, or romantic partners.

What are the 4 stages of identity development? ›

Marcia's four identity stages are diffusion (low exploration, low commitment), foreclosure (low exploration, high commitment), moratorium (high exploration, low commitment), and achievement (high exploration, high commitment).

What's the difference between default and foreclosure? ›

After two payments go unpaid, the borrower's situation becomes more challenging and the lender will increase efforts to make contact. The worst-case scenario for a homeowner who has defaulted on a mortgage is foreclosure, a legal process that results in a homeowner's rights to a property being eliminated.

What is a 5'2 arm? ›

If a mortgage were a “5-2” ARM, the interest rate would change every 2 years. The change of the interest rate will depend on what the ARM is linked to. If the index that the ARM is linked to has increased, then the rate of interest on the mortgage will increase, and the mortgage will become more expensive overall.

Are default and foreclosure the same thing? ›

Technically speaking, a notice of default is not a foreclosure. Instead, it serves as notice that you are behind in your payments and that your property may be sold as a result of foreclosure if you don't act soon.

What is the first step in foreclosure quizlet? ›

First, the lender must give appropriate notice to the delinquent borrower. Next, the lender prepares and records the paperwork. After a prescribed period, the lender files suit in court. The court orders the borrower to pay the mortgage debt by a certain date.

When property fails to sell at a court foreclosure sale for an amount sufficient to satisfy the unpaid mortgage debt the mortgagee may sue for? ›

If a property sold at a court foreclosure does not sell for an amount sufficient to satisfy the outstanding mortgage loan debt, the mortgagee may sue for: a deficiency judgment.

Which of the following is an alternative to foreclosure? ›

Loan Modifications

Probably the most common alternative to a foreclosure is a mortgage loan modification. This is a permanent solution for a homeowner who is unable to keep up with monthly payments.

How do you respond to a notice of default? ›

Write to the agency making the claim. Present evidence of why the NOD was improperly issued or why you legitimately cannot make payments. Ask the agency in the letter if they will take a lower monthly payment, total settlement or a payment plan. Send a copy of your letter by certified mail.

When a lender is forced to go before a judge to enter an order of foreclosure it is referred to as? ›

Because of the shorter amortization period, the payments are often much higher than the 30-year loan. When a lender is forced to go before a judge to enter an order of foreclosure, it is referred to as: Judicial foreclosure.

How many methods are used for the foreclosure process? ›

There are two types of foreclosure: judicial foreclosures, which require a court order, and non-judicial foreclosures, which do not. In judicial foreclosures, the mortgagee must go to court and prove that it owns the mortgage and has the right to foreclose on it.

How do I get rid of foreclosure in Louisiana? ›

Redeeming the Property

One way to stop a foreclosure is by "redeeming" the property. To redeem, you have to pay off the full amount of the loan before the foreclosure sale. Under Louisiana law, you can prevent the sale by paying the sheriff the amount of the judgment with interest and costs.

How do you stop foreclosure in Missouri? ›

How Can I Stop a Foreclosure in Missouri? A few potential ways to stop a foreclosure include reinstating the loan, redeeming the property before or after the sale, or filing for bankruptcy. (Of course, if you're able to work out a loss mitigation option, like a loan modification, that will also stop a foreclosure.)

How can I stop foreclosure in NC? ›

How Can I Stop a Foreclosure in North Carolina? A few potential ways to stop a foreclosure include reinstating the loan, redeeming the property, or filing for bankruptcy.

How can I stop foreclosure in Colorado? ›

You must file a notice of intent to cure with the trustee no later than 15 calendar days before the sale date. You'll then get a cure statement explaining the amount that you have to come up with to stop the foreclosure. You have to pay the total amount due to the public trustee before noon on the day before the sale.

How long does a foreclosure take in Louisiana? ›

Since Louisiana is a judicial foreclosure state, the time frame for foreclosing on a Louisiana property can vary depending on the court schedule, just as it can in other judicial foreclosure states. It usually takes a lender about 6-9 months to foreclose on a Louisiana property.

What is foreclosure defense? ›

In simple terms, Foreclosure Defense is the fight that you engage in with your lender, who is attempting to foreclose on your property. The goal of your defense is to either stall or stop the foreclosure in its entirety.

Which type of foreclosure is faster? ›

Nonjudicial foreclosures happen much faster, often in a matter of months, because the trustee doesn't need the court's involvement to auction off the property.

How long does a foreclosure take in Missouri? ›

A typical foreclosure in Missouri takes about 30 days, but if the borrower files for bankruptcy the foreclosure process will take longer or be halted altogether. In Kansas, the foreclosure process starts when the lender initiates a judicial foreclosure.

How long does it take to foreclose on a home in Missouri? ›

How Long Does the Typical Foreclosure Process Take in Missouri? An uncomplicated foreclosure on a Missouri property takes about 60 – 90 days. If the borrower contests the foreclosure or files for bankruptcy then the time frame is likely to be greater than 90 days.

How many missed payments before foreclosure in Missouri? ›

Be aware in the State of Missouri you only need to be ten (10) days late before the mortgage company begins the foreclosure proceedings.

How long does it take to foreclose on a house in NC? ›

How Long Does the Typical Foreclosure Process Take in North Carolina? It takes approximately three months to complete a non judicial foreclosure in North Carolina if everything goes smoothly. It may take longer than three months if the borrower fights the foreclosure or if the lender seeks a judicial foreclosure.

What is the redemption period in North Carolina? ›

Redeeming the House

While many states say that sales are final, you are given a short period in which you can redeem your home under North Carolina law. This period lasts for just ten days after the home is sold.

What foreclosure type does North Carolina typically use? ›

North Carolina is a power of sale foreclosure jurisdiction. This means that unlike many other states in which a lender seeking to foreclose must go through a lengthy judicial process in order to regain collateral (your house), North Carolina lenders may foreclose through a private sale process.

What is a Rule 120 hearing in Colorado? ›

A Rule 120 hearing is the result of motion that is being filed by the lender asking the District Court of the county where your house is located for an order authorizing the foreclosure sale. A Rule 120 hearing determines if the lender has the right to foreclose on the property and have it sold at a public auction.

How long does it take to foreclose on a house in Colorado? ›

How Long Does the Typical Foreclosure Process Take in Colorado? Typically, it takes about 110 -125 days from the date that a notice of election and demand is filed with the county until the foreclosure sale takes place on a Colorado property.

Which of the following is the first step in a foreclosure in Colorado? ›

Which of the following is the first step in a foreclosure in Colorado? The lender files a notice of election and demand for sale with the public trustee.

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