Foreclosure

Foreclosure Home For Sale Real Estate Sign in Front of New House - Left Facing.We are committed to helping homeowners explore all the options and find the best solution for their situation. Dealing with the potential loss of your home is a stressful and traumatic experience. In 2012 one out of every 338 homes in the State of Florida was facing foreclosure. Our focus is to help you avoid foreclosure and inform you of all programs available. As a defense oriented firm, we will provide you with affordable and aggressive representation. Our attorneys have a proven track record, representing hundreds of Florida home owners just like you.

Many homeowners in Florida live in dread of foreclosure – a nightmare that in today’s economic environment is a real possibility. If you are having trouble making your mortgage payment, you need to take action now to protect your home.

The Law Offices of Robert D. Eckard & Associates, P.A. is a firm dedicated to helping its clients take steps to stop a foreclosure before it starts. If a foreclosure is in process, we can help slow the process or stop it completely, avoiding the forced sale of your home.

At the Law Office of Robert Eckard and Associates, we understand that times are difficult.  That is why we provide a selection of services that allows you to choose what best suits your needs and your budget.

Foreclosure Litigation Defense

This service addresses the legal component of foreclosure. It includes the drafting and arguing of pleadings and motions in defense of a foreclosure complaint.

Mediation/ADR/Conciliation

Recent administrative orders from the Supreme Court of Florida and local circuit courts require the lender to “come to the table” in an effort to resolve foreclosures. This can create a unique opportunity to negotiate a modification or another alternative.

Loss Mitigation Negotiation

By the time most of our foreclosure clients have come to us, they have spent weeks on the phone with their lender. Let us handle your negotiation for a deed-in-lieu, modification, short sale or other foreclosure alternative and you could potentially save yourself thousands of dollars in a deficiency judgment.

Counterclaims

You may have claims against the lender when your lender has acted improperly in the servicing and collection of your debt.  Pursuing these claims not only creates better leverage to resolve your foreclosure, you may be entitled to money damages.

Pre-Foreclosure Package

Avoid foreclosure before it starts, and to prepare yourself in the event it does. Includes Loss Mitigation Negotiation, Qualified Written Request under RESPA, and Loan Audit.

Give yourself the best possible defense against foreclosure.

Understanding Foreclosure

A foreclosure takes place when a lender reclaims a property after a borrower fails to make the appropriate mortgage payments and defaults on their loan. During the foreclosure process, the homeowner loses all right to their property and the bank or mortgage company sells the property to recover their investment. Due to the current economic crisis, foreclosure rates are on the rise. According to RealtyTrac, over 800,000 foreclosure filings were recorded in the first quarter of 2009 – double the number of foreclosures filed over the same period in 2007.

What Are The Most Common Reasons For Foreclosure?

  • Foreclosures don’t just happen to people who are irresponsible with their finances. On the contrary, most people facing foreclosures have simply been faced with an unforeseeable life event that was out of their control. Some of the most common reasons families face a foreclosure are:
  • A medical emergency. Unexpected illnesses can lead to lost wages, piles of medical bills, and permanent disabilities that require ongoing care. Especially when a family lacks proper health insurance or an emergency fund, medical issues can quickly lead to a foreclosure.
  • A death in the family. If one of the primary wage earners in a household dies, a family could lose everything, including their house. A lack of life insurance or a lack of savings could lead to a lost house within months of a death in the family.
  • Job loss. With many Americans living paycheck to paycheck, getting laid off from a job could lead to immediate problems paying the mortgage. Foreclosure could even become a danger when a two-income family suffers from one job loss.
  • Divorces can be expensive and contentious — and both factors can lead to a foreclosure. Mortgage payments can fall onto the back burner during a divorce – or an argument about what will happen to joint property can lead to home payment neglect.
  • Predatory lending and subprime lending. The current foreclosure crisis is due largely to poor lending practices on the part of mortgage companies. Families were given loans when it was clear that they could not afford the payments, while others signed up for adjustable loans that reset to outrageous rates after a few years.

The Foreclosure Process

In Florida, lenders may foreclose on a mortgage in default by using the judicial foreclosure process. This is commenced by filing a lawsuit in the Circuit Court in the county where the property being foreclosed is located. Again, this is a judicial process – there is not a non-judicial foreclosure process in the State of Florida.

Mortgage and Note. When you purchased your home you signed many documents at closing. Two of those documents were the Mortgage and the Note. The Mortgage pledges the property as security for the debt which is owed to the bank. The debt is determined pursuant to the terms of the Note. In other words, the Note is basically your promise to pay. The Mortgage is the tool the bank uses to take back the property in the event you do not pay.

The Notice of Default. As a borrower, you have promised to make your mortgage payments, pay your taxes and insurance, and pay your homeowner association fees. If you fail to do so, pursuant to the terms of the Note and Mortgage, your lender may declare you in default of your Mortgage. Declaring that you are in default is the beginning of the foreclosure process.

Service. As in any lawsuit, the borrower must be served with notice of the lawsuit and must be given an opportunity to appear and defend his or her rights. The lender will try to show that the borrower is in default, and that foreclosure is therefore necessary under Florida equity law. The Florida legislature has passed very few statues regulating foreclosures. The legislature’s mortgage foreclosure effort may be viewed Florida Statutes, Chapter 702.01, which is the statutory scheme that regulates mortgage foreclosures in Florida. Most of the law on the subject of foreclosures in Florida is found within cases that have been decided before Florida’s judges. Some of the highlights of both the Florida Statutes and judicial decisions are set forth as follows:

An Equitable Action. In Florida, all mortgages shall be foreclosed in equity, not at law. This means that the foreclosure claim shall be tried to a judge – Florida residents are not entitled to a jury trial in a mortgage foreclosure action. As such, if any counter-claims are filed by the borrower-homeowner, the court shall server for separate trial all counterclaims against the foreclosing mortgage. The foreclosure claim shall, be tried before the court without a jury. Counterclaims brought by a borrower-homeowner may be tried to a jury, but they must be tried separately from the main foreclosure lawsuit.

No Injunctive Relief for Borrower-Homeowner. In Florida, because the lawsuit to foreclose on a borrower is a suit in equity, it is impossible to obtain an injunction to stop a court ordered sale. A sale can be set aside if there is an error in the procedure to foreclose. The sale, however, cannot be set aside due to a low sale price. The court order commanding foreclosure will specify how the foreclosure must take place, and the foreclosure must take place on those terms.

Disputing the Validity of the Debt.

Opportunity to Cure.