Florida is a judicial foreclosure state, meaning that before your house can be sold to pay off any debt you owe, your lender must get a court order allowing the sale. To do that, your lender must first file a lawsuit against you. While being on the receiving end of a lawsuit sounds like-and usually is-a bad place to be, judicial foreclosures may provide important protections to Florida homeowners that homeowners in other states don't have.

Foreclosure cases, just like any lawsuit, have two sides, two stories, and two potential winners. Florida court procedures are designed to ensure that every party gets a fair chance to present its case. For some homeowners, this may be the first time they have anyone-in this case, the court-looking to protect their rights.

How to fight foreclosure

There are two main approaches, which may be used separately or together, to fighting a foreclosure case:vigorous defense and aggressive counterattack. A vigorous defense takes advantage of the fact that the lender, as plaintiff, has the burden of proof- the responsibility to produce evidence to prove each part of its case-and works by finding gaps or holes in the lender's evidence. For example, in many cases, the lender may have misplaced or lost critical documents that it needs in order to prove that it has the right to foreclose. In such cases, courts have been willing to throw the foreclosure case out of court entirely.

The other approach, the aggressive counterattack, can be used if the lender has in some way violated the many laws and regulations that apply to lenders. Proving a violation may allow you to get an offset-a credit that could reduce the amount owed or even cure the default entirely. In some cases, proving a violation may bar the lender from foreclosing at all. An experienced attorney would be able to advise you on these two approaches after reviewing your court documents and loan paperwork.

The foreclosure process

A typical foreclosure process is outlined in the following steps:

  1. The lender files a lawsuit and arranges to have a summons(a request to appear before a court or a judicial officer) served on everyone who may have some interest in the property. Once the summons has been served, the court has power, or jurisdiction, over the person served, and the person served is a party to the lawsuit.

  2. Each person who has an interest in the property (defendant) has twenty days from service of the summons to respond with an answer. The answer admits or denies each allegation listed in the complaint. Failure to file a response will lead to default (automatic foreclosure).

  3. If one or more defendants files an answer, the case enters the discovery stage, during which each party may investigate the facts of the case. Discovery usually involves the exchange and examination of relevant documents; requesting and providing answers to written questions; or live, sworn, witness testimony before a court reporter. The discovery phase may last one to several months, depending on the complexity of the case.

  4. Once discovery is complete, one or more parties may ask the court to enter summary judgment: an order granting partial or complete victory to one side or the other. Summary judgment is usually entered when there are no material facts in dispute, only questions of law. If a defendant has defaulted, he or she loses the right to dispute any facts alleged by the lender. In most cases, the court will grant the lender complete relief at this stage.

  5. If any facts remain in dispute, the case will go to trial, where each party will present evidence in the form of witness testimony and documents. The judge will then make a decision and issue a final order on the case.

  6. If the lender wins, the home may be sold at auction at a date and time set by the court. Until then, the homeowner has the right to redeem, or pay off, the debt and get the sale cancelled.

When the homeowner defaults, the time from summons to sale can be fewer than 90 days. Contested cases, by contrast, may take anywhere from several months to up to a year or more.

In closing

If your lender moves to foreclose on your home, defending your foreclosure can buy you time, but most of all, can force your bank to come to the bargaining table and negotiate with you in good faith. That could mean that everyone gets what they want-the bank gets some money, and you get to keep your home. Get help from an experienced attorney to ensure that your foreclosure is expertly defended.

Additional resources:

RealtyTrac: Florida Foreclosure Laws

U.S. Department of Housing and Urban Development: Avoiding Foreclosure: Florida

Related Legal Guides:

Bankruptcy vs. Foreclosure