I had a house foreclosed on in 2009. A definciency exists. I know they will come after me one day. My mother wants to leave me her house when she passes. If she leaves it to me, and I immediately homestead it in my name, can a lien ever be filed against it from my previous foreclosure? Can the sale of the home be forced? I live in Florida.
Construction / Development Lawyer
Not if you homestead the house. To do that, you must be a Florida resident. The house will need to be your primary residence. The value of the property that can be protected is unlimited, so long as the property occupies no more than ½ acre within a municipality, or 160 acres outside of a municipality. The homestead even protects the sale of the home, so long as the homeowner has a bona fide intent to use it to purchase another home in Florida entitled to the exemption within a reasonable period of time. This protection is lost if the funds are commingled with other funds not designated for such a purchase. If the house is ever not used as your primary residence in the future then you can have a creditor attach a lien as you lose the homestead protection. You may want to consider a bankruptcy to eliminate the deficiency judgment.
Mr Prest is correct, but I would add one caveat so if it occurs you will know what to do: Once the house becomes your homestead, judgment liens cannot attach to it -- BUT that does not mean the bank that holds the deficiency claim won't try. You may find that they have recorded a lien against the house once they learn you are there BUT, there is a simple procedure that take 40 days to complete that will wipe the "lien" off, since it cannot attach to homestead property.
Real Estate Attorney
In addition to the advice provided above, you should know that a lender must bring a suit against you for collection of the deficiency, and reduce the unpaid amount to a judgment, before they can attach anything that you own. There are time limits in many states for how long a lender can wait to attempt to enforce a deficiency. You should consult a lawyer to see if the Lender's deficiency is outside those time limits.
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