Foreclosure Frequently Asked Questions


Facing foreclosure is emotionally draining and fear and anxiety will set in if they have not already.  If you are behind on your mortgage payments, the mortgage lender will have the court sell your home to repay the debt you owe on it.  In addition, late fees, interest, and attorneys' fees and costs are accruing now and increasing the amount of debt you owe.  Fear and anxiety can come from not knowing what to expect and what options you have.  The information below offers answers to frequently asked questions that arise with the homeowners we serve.  

Q:  Is the consultation really free?

A: Yes, it really is free.  We offer a free consultation with an attorney.  The goal is for us to get to know you and your goals, and for you to get to know us, so we can determine if we are a good fit for each other. 

Q: What is a foreclosure?

A:  A foreclosure is the legal process by which a lender takes back the home from the homeowner to satisfy the mortgage. Foreclosure proceedings are usually initiated by the lender filing a case in court against you after you have failed to make payments according to the contract you signed when purchasing your home.  This can happen if it is your first mortgage, second mortgage, and/or a home equity line of credit.

Q:  What is a first mortgage, second mortgage, and or/home equity line of credit.

A:  The first mortgage is usually the original mortgage loan that was taken out to purchase the home or a loan that refinanced a previous first mortgage.  A second mortgage is a loan taken out in addition to the first mortgage.  A second mortgage is sometimes taken out by the homeowner once they have built up equity in their home and they need additional funding.  The difference between the home's current market value and any remaining mortgage balances is called home equity.  A homeowner may decide to borrow against their home equity to fund other projects or expenditures. The loan they take out against their home equity is a second mortgage, as they already have a first mortgage.  Second mortgages are usually a lump sum payment made to the homeowner at the beginning of the loan.  However, home equity lines of credit, also known as HELOC loans, can be disbursed over a period of time.

Q:  What is the difference between a lender and a servicer?

A:  When you bought your home, you contacted a lender to see if you qualified for a loan and took out a mortgage.  The lender is the entity you signed a contract with to make monthly mortgage payments for a period of time until the entire amount of the mortgage is paid off.  The servicer is just responsible for collecting monthly mortgage payments and if you have an escrow account, they pay your taxes and homeowners insurance on your behalf.  Sometimes, the lender and servicer are the same entity.  However, most of the time the servicer is a different entity than your lender and can change multiple times throughout the length of the loan.

Q:  What is the foreclosure legal process in the State of Florida?

A:  The foreclosure process in the State of Florida normally begins with the lender notifying the homeowner that they are behind on their mortgage payments.  If you aren't able to bring your mortgage payments current, you will be notified that the lender will be accelerating your note.  This means that the lender is calling the entire amount of the loan due.  After this, the lender hires an attorney to file a case in court against you and a summons and complaint are served on you, notifying you that a lawsuit has been filed against you.  If you do not hire an attorney to defend your case in court or fail to file an answer to the foreclosure complaint, the lender can win very quickly causing you to lose your home faster. 

Q:  When is a mortgage payment considered past due, allowing lenders to file a foreclosure action in court?

A:  Generally, lenders do not file a case in court against you until you are at a minimum of three months behind on your mortgage.  However, as soon as you miss a payment, you are in default or breach of the loan documents.

Q:  If I am served with a foreclosure summons, what do I do?

A:  You should contact an experienced foreclosure defense attorney.  You normally only have 20 days to file a response to the lawsuit filed against you.  You should hire an experienced foreclosure defense attorney who can help you understand what options are available to you, help you make a decision on what to do next, handle your court case, and allow you to take control of your future.

Q:  Are there ways of avoiding foreclosure?

A:  Yes.  There are many options which you can review here.  An attorney at Kyle & Kyle can help you understand the options available to you.

Q:  Will foreclosure affect my credit score?

A:  Yes.  Foreclosure has a negative effect on your credit score.  However, hiring an experienced foreclosure defense attorney can help you avoid foreclosure which in turn will help save your credit score.

Q:  Can I delay the foreclosure from going forward?

A:  Yes.  An attorney can fight the case in court against your lender by filing affirmative defenses, discovery demands, and other motions to delay your case.  This will allow you to stay in your home for a longer period of time and give you additional time to explore other options.  Please understand that if you attempt to defend the case in court without an attorney, you may not know all of the law and procedures to properly defend yourself against the bank's team of attorneys. If this happens, you may lose many defenses and additional time available to you.

Q:  How do I fight a foreclosure action?

A:  A foreclosure case is fought through filing affirmative defenses and forcing the bank to prove its case against you.

Q:  What options do I have?

A:  Just because a foreclosure case has been filed against you, doesn't mean you do not have options.  There are many options that may be available to you.  Some of the options will allow you to save your home, while others will require your home to be sold.

Q:  Do I need to move out of my home?

A:  You do not need to move out of your home if you just received notice of the foreclosure case.  We have helped thousands of homeowners in this situation and our homeowners have been able to remain in their home for anywhere between X and X months.  Once you receive notice of sale, you will want to be out of your home before the date on the notice of sale happens.

Q:  Do I need to kick the tenants out if this is a rental property?

A:  No.  You will not need to kick the tenants out if your property is currently being rented out.  In most cases, you can continue to receive monthly rent from your tenants until your house is sold at auction.  The tenants would need to move out before the auction.  

Q:  What is a notice of sale?

A:  This is notice of the actual foreclosure sale of your property.  The date listed on this will be the date your home is sold at auction.

Q:  After the foreclosure sale, will I owe the lender money?

A:  It is possible.  If the property is sold for less than the total amount you owe to the lender, the lender can try to obtain a deficiency judgment against you for the unpaid portion of your mortgage loan.  If this happens, it is important you contact our office as we may be able to help.  In the event your property is sold for more than the total amount owed on your mortgage loan, the court will schedule a hearing to determine how much, if any, will be returned to you.

Q:  Who sells my house in a foreclosure proceeding?

A:  The county clerk of court handles the auction sale of your home.

Q:  Am I entitled to Foreclosure Surplus Funds?

A:  After your home is foreclosed and you move out, you may still be entitled to recover money.  When your home is sold at a foreclosure auction, whoever bids the highest and takes ownership of the property may pay more for the purchase than you owed your lender.  This is especially true in the current real estate market where homes are selling for high value.  You have a right to claim these surplus funds, also known as Foreclosure Surplus Funds.  The calculation for Foreclosure Surplus Funds is the difference between the sales price and the amount you owed the lender.  For example, if the court ordered you owed $200,000 to your lender and the home was sold at auction for $250,000, you are entitled to the remaining $50,000 after the debt is satisfied.  In order to obtain these funds, you must act quickly so you don't lose your ability to claim these funds as your own.  

Q:  What should I do?


1)  Call 877-595-3529 to schedule a free consultation with a foreclosure litigation attorney.

2)  Get sound legal advice and find out what legal options are available to you.

3)  Let us take action in your court case.

4)  Smile with Kyle.

Kyle & Kyle Law has over 20 years' experience and has helped thousands of homeowners like you.  This is probably the first time you have faced foreclosure.  Well, it is not our first time.  We have helped thousands of homeowners just like you.  We care about your time and your future.  Our goal is to help you understand what options are available to you, help you make a decision on what to do next, handle your court case, and allow you to take control of your future and Smile with Kyle. 

Kyle & Kyle Law serves all of Florida.  Schedule a free consultation today.

Contact Us Today

There's no need to handle legal issues alone. Get aggressive legal advice you can trust at an affordable cost. Hire an experienced advocate to help you make the right decision about what to do next. Take control of your future and Smile with Kyle. Contact Kyle & Kyle Law at 877-595-3529 for a free consultation. 

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