Foreclosure Defense in Miami

Arturo R. Alfonso P.A. represents Miami-Dade homeowners who have been served with a mortgage foreclosure lawsuit, in English and Spanish. This page explains how the firm handles a foreclosure case from the summons to the sale date, what we check in the lender’s papers, and what documents and deadlines you should expect along the way.

If your foreclosure comes from a homeowners’ association rather than a mortgage lender, the notice rules are different; see Can an HOA foreclose on my home in Florida? If you are weighing a bankruptcy filing, see Can bankruptcy stop foreclosure in Florida?

Stage 1: The First 20 Days After You Are Served

A Florida mortgage foreclosure is a lawsuit filed in the circuit court. In Miami-Dade County that is the Eleventh Judicial Circuit, and the file is kept by the Clerk of the Court and Comptroller. Under Florida Rule of Civil Procedure 1.140(a)(1), a defendant generally must serve an answer within 20 days after being served with the summons and complaint, and the Clerk’s mortgage foreclosure page gives homeowners the same 20 days. Missing that deadline can lead to a default, so the first thing we do is calendar it.

In the first meeting we read the complaint with you, confirm the date and manner of service, and ask what you want: to keep the home, to sell it, or to leave on a schedule you control. The answer to that question shapes every step after it.

Stage 2: Reviewing the Lender’s Papers

Florida law requires specific disclosures in a foreclosure complaint on a one-to-four family home, including condominium units. Under Section 702.015, the plaintiff must allege that it holds the original note or state with specificity why it is entitled to enforce the note. A plaintiff in possession of the original note must file a sworn certification with the complaint, and the original note must be filed with the court before any judgment. A plaintiff claiming the note was lost, destroyed, or stolen must attach a sworn affidavit detailing the chain of endorsements and transfers. The court may sanction a plaintiff that does not comply.

We also check timing. Under Section 95.11(2)(c), an action to foreclose a mortgage carries a five-year limitations period; when that period starts depends on the payment and acceleration history, which we review from your records. For most residential loans, the federal mortgage servicing rule in 12 CFR 1024.41(f)(1) bars the servicer from making the first foreclosure filing unless the loan is more than 120 days delinquent, subject to limited exceptions. Whether any of these points is a defense in your case is something we answer only after reading your file.

Stage 3: Working the Case and the Alternatives Together

Defending the lawsuit and talking to the lender often happen at the same time. Under 12 CFR 1024.41(g), if a borrower submits a complete loss mitigation application more than 37 days before a foreclosure sale, the servicer may not move for a foreclosure judgment or order of sale, or conduct the sale, unless the borrower has been found ineligible for every option and any appeal is over, the borrower rejects the options offered, or the borrower does not perform under an agreed option. Because the date the application is complete matters, we help you assemble it and keep a record of what was sent and when.

Depending on your goals, the options we review with you can include a loan modification or repayment arrangement, a sale of the home before the auction, a short sale, a deed in lieu of foreclosure, or contesting the case through trial. For some homeowners, a bankruptcy filing is part of the plan; our bankruptcy guides explain how that works.

Stage 4: Judgment, the Sale Date, and Afterward

If the court enters a final judgment of foreclosure, Section 45.031 directs the clerk to sell the property on a day not less than 20 or more than 35 days after the judgment, and allows the clerk to conduct the sale electronically. The Miami-Dade Clerk holds these sales online at miamidade.realforeclose.com. After the sale the clerk files a certificate of sale, and a party has 10 days after that filing to serve objections.

Up to the end of the sale process you may still be able to redeem. Under Section 45.0315, the homeowner may cure the default and redeem before the later of the clerk’s filing of the certificate of sale or the time set in the judgment.

Two more issues matter after a sale. If the sale brings in more than the judgment, Section 45.032(2) presumes that the owner of record when the lis pendens was filed is entitled to the surplus, after subordinate lienholders who timely filed a claim. If the sale brings in less, Section 702.06 leaves any deficiency judgment to the court’s discretion and, for an owner-occupied home, caps it at the difference between the judgment amount and the fair market value on the date of sale. A separate action for a deficiency on a one-to-four family residence must be brought within one year under Section 95.11(6)(g).

What to Bring to Your First Meeting

• The summons, the complaint, and every paper served with them, with the date you were served.
• Your note and mortgage, if you have them, and your most recent mortgage statements.
• Letters from the lender or servicer, including any notice of default or acceleration.
• Copies of any loss mitigation application you have sent, and proof of when it was sent.
• Any HOA or condominium association notices, and your homestead exemption information.

Related Pages

• Real Estate Law in Miami
• Can bankruptcy stop foreclosure in Florida?
• Can an HOA foreclose on my home in Florida?
• Will I lose my house if I file bankruptcy in Florida?
• What is a lien and how does it affect selling my home?