Where is the Note?

Ray Garcia

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Real Estate Attorney - Miami, FL

Contributor Level 11

Posted almost 4 years ago. Applies to Florida, 2 helpful votes

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Obtaining Judgment

A bank must first obtain a Final Judgment of Foreclosure. There is a specific procedural process that must be followed before a court may enter a Final Judgment of Mortgage Foreclosure. Many banks, specifically in South Florida, have been circumventing these procedural safe guards in order to obtain these final judgments on an expedited basis. As a homeowner in South Florida, it is imperative that you hire a foreclosure defense attorney to protect these essential procedural practices.

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Obtaining the Note

Before a bank obtains the Final Judgment of Foreclosure, it must establish that it legally holds and owns the note and mortgage, and therefore, is entitled to enforce both. Ideally, both documents should be attached to the Foreclosure Complaint, but this is not always the case. Many times, the bank will allege that the note has been lost, and will include a count to establish the lost note. More often than not, the bank will find the note, and move the court for entry of a Final Judgment of Foreclosure.

Additional Resources

Pursuant to Florida Rules of Civil Procedure, all evidence upon which the bank relies to establish ownership of the note and mortgage, must be served upon all parties twenty days prior to the hearing on the Final Judgment of Foreclosure. In South Florida, specifically Miami-Dade and Broward counties, these procedural safeguards are consistently violated by banks. However in, Verrizzio v. Bank of New York, the Second District Court of Appeals of Florida held that these sloppy and loose procedural practices are not to be tolerated.

http://raygarcialaw.com/blog/2012/04/tips-to-avoid-mortgage-modification-scams/

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