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Losing house in Florida, can I save it by moving there and claim it as primary residence?

Jacksonville, FL |

House #1: In California, was primary residence, had homestead exemption. Bank foreclosed Aug 12th, 2011. Move out date Sept 30th. Done deal, no more ownership here. House #2: In Florida, was investment property. On 9/24/2010 Carrington Mortgage filed NON-Homestead Residential Foreclosure and Notice of Lis Pendens Summons was issued. Affidavit of Service Summons/Served to me on 10-14-2010. According to Case Details - Duval County Clerk of the Circuit Court records no further action taken since 10/14/2010. Tenant moved out Feb 28th, 2011. Contract with property manager canceled. Working with RE Agent to do short sale on the house. Can I move to Florida, claim it as primary residence and file homeowners exemption status so I can work with mortgage co. to restructure loan?

Attorney Answers 3


  1. Best answer

    Generally speaking, the determination of a property's homestead status is made based on a "facts and circumstances" test, not necessarily on whether or not you have filed for the homestead exemption with the Property Appraiser. Bottom line - if you move to your Florida property and intend it to be your homestead, it is. Someone may require you to prove that it is your homestead and as such, you should be ready by obtaining a Florida Driver's license registered to your Florida property address, pay your income taxes listing your address as the Florida property address, have your utility bills sent to the address, etc. In this exercise, you will want to also apply for the homestead exemption.

    I think that you are alluding to the HAMP program in your reference to working "with mortgage co. to restructure loan." The HAMP program does offer modification and short sale programs related to a property owners' primary residence, however, I do not believe that applying for the homestead exemption will satisfy the test on whether or not a property is the homestead property of the borrower. Again, this is a facts and circumstances test where you need to convince the lender that the property is indeed your homestead property.

    Good luck in resolving your real estate problems.

    This response does not create an attorney-client relationship. Unless you are already a client of the Edwards Law Firm, PL, pursuant to an executed fee agreement, you should not use, interpret, or rely on this response as legal advice or opinion.


  2. Just filing "homeowner's exemption status" does nothing to slow down the foreclosure process.

    I think you are referring to claiming homestead. But again, the home is already in foreclosure. Just because you claim it as your homestead property does not take it out of foreclosure.

    You will still have to address someway to catch up the mortgage payments, get the mortgage company to agree to modify, or file a chapter 13 bankruptcy to catch up the past due payments in order to keep the home and prevent it from being lost at auction at the end of the foreclosure.


  3. To add to the above answers:

    If you move to the residence in Floria and make it your primary residence, you may think that you will then be eligible for the mandatory Residential Mortgage Foreclosure Mediation program (RMFM). In fact, you may well be, but you can ask the Court for mediation without moving to the home and without using the RMFM program. The RMFM program is free and you would have to pay for "private" mediation, but the end goals are the same: modification of the mortgage to allow you to remain in the home.

    The vast majority of these mediation efforts do not result in any sort of work out. If the loan is FHA, there will be no principle reduction offered. If you are behind a year's worth of payments, you will be expected to bring a sum of cash to any deal, and so on.

    Consider asking, and paying for, mediation regardless of resident status. Also, considering hiring a foreclosure defense attorney to keep the case as slowed-down as ethically is possible to facilitate the short sale. Good luck.

    The above is provided for educational purposes only and is not legal advice nor makes you a client of the Mosca Law Firm, PA. Please consult with a lawyer in order to obtain confidential legal advice that is tailored to your specific situation and facts.