Authored By: Community Legal Services of Mid-Florida
I'm behind in my mortgage payments...now what?
If you have a mortgage on your home and you are behind in your payments, pay close attention to any letters you receive. Your rights may depend on the type of mortgage you have. Be sure to keep copies of all letters and notices; do not throw them out! Do not ignore letters from the mortgage company. Call them immediately to see if you can work out an agreement to save your property. Contact a HUD approved counseling service.
If you believe you have been the victim of consumer fraud, you may contact the Florida Attorney General at (866) 966-7226.
If you have a:
- Conventional Loan Write a letter to the mortgage company requesting to pay the back payments over time. The mortgage company may accept your offer.
- Veterans Administration Loan Contact the V.A. as soon as you are behind in your mortgage. They may be able to help you with your mortgage payments.
- Farmers Home Mortgage You may get a letter saying you are behind in your payments. Call the Farmers Home office and ask for help with your mortgage. They may be able to give you interest credit, delay your payments, or provide some other help. If you are turned down, you can ask for an appeal hearing.
I've been served court papers for foreclosure...now what?
If the bank or mortgage company has started a foreclosure suit against you, you will be served court papers by the sheriff or a process server. You will probably receive a summons, a complaint, and an order to show cause. These papers come with a deadline: You must respond within 20 days. As soon as you receive court papers, read them. Talk with an attorney to get advice.
What about the new law?
Under the new law the bank has to certify to the court that it has possession of the original note prior to filing the foreclosure case against you or that they have lost the note while it was under their possession. Also, the new law makes the foreclosure judgment final, which means you cannot get the house back after the house is sold and title is transferred to the new owner.
Can I get the house back after it is sold and the title has been transferred?
No, you cannot get the house back after it has been sold and title has been transferred to another person. Under the new law the foreclosure judgment has finality, even if you ask the court to set aside the judgment because there were irregularities in the process. In that particular situation all you can get is a money judgment against the bank/lender for any irregularity in the process.
If my house is sold am I still personally liable?
Yes, if the house is sold for less than the amount you owed, you will be personally liable to the lender for the difference (deficiency), unless you had agreed with the bank to have the deficiency waived, or you file for protection under bankruptcy. The lender has one (1) year from the moment the title to your house is transferred to the new owner to file an action to recover the deficiency.
Where can I get help?
There are limited circumstances were a default may be challenged. Contact your local Legal Services office, if you do not understand the time frames or if you received a default judgment and you have not been previously notified of the lawsuit.
What happens after I file my answer?
After you file your answer, the court will advised you of any hearings scheduled in your case so you may attend and defend your case.
What will happen if I do not respond?
If you fail to file your answer to the foreclosure complaint within the twenty (20) days after being served, the court will enter a default against you and the foreclosure case will continue without any further notice to you from the court or lender. If you fail to file your answer after being served, or the answer does not have any defenses (reasons why your house should not be sold), the lender may ask the court to enter an Order to Show Cause why your house should be foreclosed. The hearing on Order to Show Cause may take place 45 days after the expiration of the time you had to respond. So it is imperative you file your answer within the 20 days from the moment you got served, because if you fail to do so, you may lose your house.
What to say in the answer?
You must admit or deny every single paragraph in the complaint. If you do not know the facts stated in any specific paragraph, you must deny it for lack of information or knowledge. If you believe your house should not be foreclosed, then you must write your reasons in your Answer in separate paragraphs.
Examples of reasons could be:
- you never received any letter from the bank stating they were accelerating the mortgage (declaring the full amount due),
- the bank never informed you about options to avoid foreclosure,
- you sent payments to the bank and the bank never credited those payments and the bank never returned the money to you.
Make sure to write at the top of your Answer the information about the court where the case is pending, your name, and the name of the Plaintiff (lender) as it appears on the Summons.
Where to file an answer?
The original of your Answer should be filed with the Clerk of the Court where the case is filed. You must send a copy of your Answer to the Plaintiff’s attorney. Look at the Summons to check Plaintiff‘s name and address to mail him/her a copy of your Answer. Remember to keep copy for your records.
If you respond to the papers yourself, you should:
On plain paper, type (or print clearly) the information at the top of the complaint, including the court name, names of the parties, and the case number, then print or type “Answer of Defendant.”
Use numbered paragraphs to point out anything you believe is untrue or wrong in the court papers you received. You should also write down the reasons why there should be no foreclosure. These reasons are called “affirmative defenses.”
For example: The mortgage company may have accepted late payments from you for several months, did not send you a new written notice that payments are due on time, but then filed a foreclosure when you were late again. Perhaps a home improvement company placed a mortgage on your house to pay for its services. A defense may be that the work was not done properly. The judge may still rule that you owe the mortgage, but it may be less than the mortgage company is asking.
Other defenses are possible. Any reason that would make it unfair for the mortgage company to take over your home should be written down as a defense.
Sign the answer. Write that you are mailing a copy to the lawyer for the bank or mortgage company, including the date you mail the copy. Then, mail a copy of the answer to the lawyer for the bank or mortgage company. Take the original answer to the Court Clerk and file it. There is no charge for this. Keep a copy of your answer for your records.
You may receive a Motion for Summary Judgment. This will tell the date and time that a judge will decide whether to foreclose on the house. The rules require that you present an affidavit stating the reasons why the foreclosure should be denied. You must serve the affidavit on the mortgage company’s attorney 5 days before the hearing. You can go to that Motion for Summary judgment hearing and tell the judge why there should be no foreclosure.
If the judge decides that the house should be foreclosed, he/she will set a day and time for the sale. That day will be at least 20 days after the hearing, but probably not more than 35 days later. If you need more time than that, tell the judge. It will be up to the judge to decide if you get more time.
At the sale, someone will purchase the house. The new owner cannot take possession of the house until the Clerk of the Court issues the title, usually 10 days after the sale. If you have not moved, the new owner is entitled to move in, and you will be served a “Writ of Possession” by the sheriff. The Writ of Possession will give you 24 hours to move.
If you do not file an answer or if you do not show up at the “Motion for Summary Judgment” hearing, a default can be entered against you. This is like automatically losing your case. The next piece of paper you could receive would be the notice to leave your house.
Once the foreclosure action is filed, you will start to receive mailings from individuals who will offer you ways to “save” your home. Do not sign anything until you have the opportunity to have an attorney review the documents, since you may be signing away your ownership rights and will receive nothing for your home!
Are there any other options?
- You may wish to sell your home. You have the right to do so until the foreclosure sale. This may be the best way for you to get back the equity you have in the home. If you want to do this, contact a Realtor.
- You may want to consider bankruptcy. In some situations where the household has a steady source of income, bankruptcy can help you save your home. For advice, talk to an attorney who handles bankruptcy matters.
- You have the right to “redeem” your home until the sale of the house. To redeem your home, you must pay all amounts owed on the mortgage, plus attorney fees, and the court costs that went with the foreclosure. If you do this, you can stop the foreclosure sale.
- You may also want to consider deeding the house back to the bank or mortgage company. Contact the attorney representing the mortgage company to discuss this option.
- You may opt to participate in the “cash for keys” program, also known as a “deed in lieu”, which allows the bank to take property back from a delinquent homeowner who can no longer afford to make their house payment, in exchange for moving expenses.
What do I do next?
Once your original answer is filed, the court will keep you advised of all hearings so that you may continue with your defense. Make at least two copies of your answer. The original answer is filed with the Clerk of the Court where the lawsuit was filed. Look at the summons to see which court the lawsuit was filed in. You must also mail one copy of the answer to the plaintiff’s attorney. Look at the name and address on the summons to see where to send the plaintiff’s copy. Keep one copy for your records.
Filing an answer to foreclosure under the new law
Under law currently in effect, foreclosures of properties are expedited, and if you do not file an answer to a foreclosure complaint you may be taking a risk of losing your house. If you want to be heard and participate in the court proceeding to defend your rights, you must file an answer to the complaint.
Also under the newest law, if you fail to file your answer within the 20 days after being served, the court may issue an Order to Show Cause why your house should not be foreclosed, and the court may request you to deposit into the Court Registry mortgage payments until the court makes a final decision in your case.
When Must You Respond
You only have twenty (20) days after you are served with a summons and complaint to file an answer. Count twenty (20) days after the day you got served, including Saturdays, Sundays and holidays. You must respond even if:
- You are working with your lender to try to work out a deal or get a loan modification.
- Your lender says you do not have to respond.
- You can use the “cash for keys” money to move all your belongings plus walk away without any additional financial stress or responsibility.
- You may wish to request a loan modification, which typically involves a reduction in the interest rate, an extension on the term (length) of the loan, a different type of loan or a combination of all three. A lender might be open to modifying a loan because the cost of doing so is less than the cost of you defaulting on the loan.
Updated: May4, 2017