Time to Remain in Home in a Florida Foreclosure

Posted over 4 years ago. Applies to Florida, 9 helpful votes



The Complaint is just the start....

The service of a Complaint for foreclosure is just the start of the process. A homeowner will have at least 20 days to serve a response. If the Complaint fails to make a proper claim, a Motion to Dismiss the Complaint is an appropriate response. If the Motion is granted, it is not the end of the case, but the Plaintiff will have to correct its pleading. If the Motion is not granted, the Court will typically allow a homeowner additional time to file an Answer and Affirmative Defenses. If a Motion to Dismiss the Complaint is not appropriate, then the Answer and any applicable Affirmative Defenses should be timely served and filed. A homeowner should at the very least consult with an attorney to review the pleadings. The Florida Bar allows a lawyer to prepare a pleading for the homeowner's signature. It does not mean the lawyer is representing the party, but enables the homeowner to have the response prepared by a professional.


Failing to respond to the Complaint will result in...

...homeowner being in "Default". A default means a Defendant admits to the well plead allegations of the Complaint. A foreclosure is a civil action, not a criminal matter. A Defendant has no obligation to defend against the Complaint. Some people are afraid to defend against allegations because they are true. Even so, a homeowner is entitled to deny them!! Why? A Defendant is always entitled to force a Plaintiff prove up its case. The Plaintiff has the burden of showing it is entitled to have relief. A denial of an allegations means the homeowner wants the Plaintiff to show to a judge, by evidence, that the allegations are true. When a Defendant denies an allegation, the Defendant is essentially saying: prove it. An Answer and Affirmative Defenses are not required to be notarized. Therefore, the Defendant is not committing perjury by denying an allegation. Again, a Defendant is entitled to have Plaintiff prove up each of the allegations.


When a Plaintiff meets its burden....

....either by trial or a Motion for Summary Judgment, the Court will enter a Final Judgment. The judgment will set forth the amount of money owed to the mortgage holder, rule as to the priority of all the interests in the property, set a sale date, provide for how the proceeds of the sale are to be applied, and provide for other procedural issues. Florida statutes provide that a foreclosure sale be held 25-35 days after entry of the judgment, but with all the foreclosures in the Florida courts, the Clerks have not been able to keep up with that time-table. Even with Clerks going to on-line foreclosure sales 5 days a week, some counties are conducting the sales several months after entry of the judgment.


What to expect the day after the sale....

Nothing. Absolutely nothing should happen. That is because the Clerk can not issue a Certificate of Title to the buyer for ten (10) days. The purpose is to enable the homeowner to object to the procedure used in the sale--IF THERE IS A GENUINE REASON. Objecting just to object is an abuse. The point to be made is that the sale date, in and of itself, is not a day that anything will happen. It just starts a required 10-day waiting period to start.


What to expect 10 days after the sale...

Probably nothing, depending upon the county in which the property is located. In some counties with a high number of foreclosure actions, the Clerks can not handle the paperwork fast enough. There have been instances where the buyer of the property has had to wait 4-6 weeks before getting the Certificate of Title. The Florida legislature appropriated $9.6 million to the Court system to be used exclusively to work on the back log of foreclosure cases. What was typical time for Certificates of Title (4) months ago may not apply when you read this.


Once the Certificate of Title is issued....

....the buyer has become the owner of the property and is entitled to take possession of the premises. However, the new owner can not simply knock on the door and require that the former owner leave, right then and there. Or, let me be more precise: although the new owner can make a demand that the former owner leave, the new owner can not force the former owner out onto the street right then and there. The former owner is not required by law to even open up the door. The burden is on the new owner to use the legal process to have the former owner to leave. This is done by the new owner....


Having the Clerk issue a Writ of Possession

Even here, there is an element of the new owner having to go through "the system". In some counties, the Final Judgment will authorize the Clerk of the Court to issue a Writ of Possession upon the request of the buyer [but only after the Certificate of Title has issued]. In other counties, the new owner must make a Motion to the Court to enter an order authoring the Clerk of the Court to issue of the Writ. The amount of time for the Order to be issued will depend upon the location. Either way, when the Writ of Possession is issued, the writ must be enforced by.....


Only the sheriff can enforce a Writ of Possession

The new owner must deliver the Writ of Possession to the Sheriff of the County in which the property is located. The new owner knocking on the door with a Writ in his/her/its hand has no bearing on the former owner's possession. Typically, the Sheriff will come out to the property and serve or post a 24-hour notice to the former owner in possession. Often, the notice is posted on a Thursday or Friday, thereby giving the former owner the weekend to vacate.



The precise time that a person will have to vacate the premises after being served with a Complaint for Foreclosure will depend upon many, many variables. The sale itself is but one of many important points in the process, and even though the sale may occur, that is not the end of the process. And, lets not forget, that the case may very well be defensible.

Additional Resources

Law Office of Jeffrey Lampert

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