this is a breach of contract suit, I responded to the intial paperwork they sent me but they believe I have no ground to stand on and they are asking for the courts in orange county florida to enter a final summary judgement, can they garnish my wages, I am a 1099 employee
When you took out your second mortgage, you borrowed money and signed a promissory note promising to pay back the money you borrowed. If you did not pay it back, the lender can get a judgment against you for the amount you owe plus attorneys' fees and court costs. Once they get the judgment, they can use all the tool for collection of the judgment that are available to them. While they cannot garnish your wages if you are the head of the household, they can garnish your bank accounts and levy on your personal property. After they get the judgment, they will require you to come to a deposition in aid of execution at which time you will have to disclose all of your assets. To avoid this, you should consult an experienced bankruptcy lawyer in your area.
Disclaimer: This answer is provided for informational purposes only, does not constitute legal advice, and does not create an attorney-client relationship. Actual legal advice can only be provided after completing a comprehensive consultation in which all of the relevant facts are discussed and reviewed.
It does not seem, from your question, that the second mortgagor (the owner of the second mortgage) is trying to foreclose on your property (are they?). If they are, the property is first sold, and the initial funds from the sale are to pay the first mortgage, as well as court costs and fees for the forced sale,etc. Then, if there is any remaining funds from the sale (usually there are none) the remainder is used to pay the second mortgage. If after the sale there is what is called a "deficiency" (that is, after everyone is paid there are monies owed, for instance to the second mortgage company), the person or entity to which the deficiency is owed has to file another lawsuit against you to obtain a "deficiency judgment". It may take years before the deficienty judgment (if it is won in court) can be enforced against you.
If it is not a foreclosure, but as you say: a breach of contract only without asking for a foreclosure, and they are proceeding with a summary judgment motion, if they win it and get a judgment, they can "enforce" that judgment against you. How would they do that? trying to get the sheriff to do a writ of execution (to force the sale of your paid off cars, trucks, boats, etc.), or a writ of garnishment (to try to get possession of your bank accounts, etc.). All of this takes time, money, and effort. So, some creditors go all the way, while others just get a judgment and use it to write off the debt. You never know where they are going to end up.
If they obtain a judgment against you, you can either negotiate a re-payment plan with them (if you can) or, as a last alternative, you can file for a Chapter 7 or a Chapter 13 bankruptcy to control the debt judgment collection against you and to slow down the creditors from coming after you.
Alejandro R. Lopez, Esq.
Law Office of Alejandro R. Lopez, P.A.
4465 Edgewater Dr.,
Orlando, Fla. 32804
E-mail: [email protected]
This is the way most second mortgage holders are pursuing collection in Florida. Florida permits judgment creditors to garnish wages unless applicable exemptions apply and to pursue levies and sales of any nonexempt assets you have or acquire in the future. The lien of the judgment had a potential life of 20 years and can follow you anywhere you may move. They are very dangerous. If you qualify for bankruptcy relief you might be able to discharge the debt however you should consult a bankruptcy attorney BEFORE the plaintiff obtains judgment as more options exist at that point.
Please note that the above is not intended as legal advice, it is for educational purposes only. No attorney-client relationship is created or is intended to be created hereby. You should contact a local attorney to discuss and to obtain legal advice.
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