Call Us 941-954-9991
Wiring Instructions
credit_cardMake a Payment
Facebook
Twitter
Google+
LinkedIn
Berlin Patten Ebling Logo
  • Who We Are
    • Firm Overview
    • Attorneys
    • Closers
    • Marketing Team
  • What We Do
    • Residential Real Estate
      • Residential Real Estate Closings
      • Foreign Real Estate Buyers And Sellers
      • REO Real Estate Closings
      • Foreclosure Litigation
      • Title Claims
      • Contract Disputes
    • Commercial Real Estate
      • Commercial Real Estate Closings
      • Commercial Development
      • Commercial Leasing
      • Commercial Landlord-Tenant
    • Commercial Litigation
    • Business Transactions
    • Land Use, Zoning & Development
    • Lender Representation
      • Lender Representation
      • Creditor Rights Representation
      • Out-of-court Workouts
    • Estate Planning
      • Wills, Trust and Probate
      • Business Succession Planning
    • Resources
      • Read Our Blog
      • Watch Our Vlog
      • Moving to Florida
      • Frequently Asked Questions
        • Buyers
        • Sellers
        • Commercial & Business Transactions
        • Business Representation
        • Others
      • Make a Payment
      • Schedule Estate Planning Consultation
      • Order Title
      • Wiring Policy & Confidentiality Disclosure
  • Why We Do It
  • Where We Do It
  • Talk To A Lawyer »

Foreclosure Update in Florida

September 19, 2012Hub Media DeveloperBlog Post, Real Estate Law/Taxes, REO/Foreclosures

Originally Published: 2/7/2012

Several Florida legislature bills, including HB 213, are attempting to make Florida a non-judicial foreclosure state, which would allow banks to foreclose on properties in certain instances without filing a lawsuit or otherwise using the judicial process. This may preclude homeowners from the opportunity to defend foreclosure, which many experts believe is a violation of due process. It is important to understand the differences between judicial and non-judicial foreclosure.

Currently, Florida is a judicial foreclosure state. Judicial foreclosures are processed through the courts, beginning with the lender filing a complaint in state court and recording a Lis Pendens against the property. The complaint alleges why the lender is entitled to foreclose on the particular property. The homeowner must be served notice of the complaint and has the opportunity to answer the lawsuit or otherwise defend it and have his/her day in court. The lender is required to fulfill certain requirements to the court before it can foreclose. The most important difference between judicial and non-judicial foreclosures is that in a judicial foreclosure state, the lender cannot foreclose without a court order. This means that a judge will review the lender’s allegations and the documents filed with the court, and may prohibit foreclosure if the lender does not adequately prove its case, even if the homeowner does not defend the suit. This extra layer of protection helps to ensure that the property is not wrongfully sold by a party not entitled to do so, which has been a wide-spread problem in non-judicial foreclosure states.

In contrast, non-judicial foreclosures are processed without court intervention, with the requirements for the foreclosure established by state statutes. When a homeowner defaults on a mortgage, the lender will mail or serve the homeowner with a default letter which declares the loan in default and provides the homeowner a period of time to cure the default. If the homeowner does not cure the default, the lender will send the homeowner a document often called a “Notice of Sale,” which states that the property will be sold at auction on a date certain. This notice will also be published in local newspapers and usually recorded at the county recorder’s office. After the expiration of a time period established under the state law, the property is sold at a public auction. It is important to note that each non-judicial foreclosure state has different procedures. Some do not require a Notice of Default, but start with a Notice of Sale. Others require only the publication of the Notice of Sale to announce the sale, with no direct owner notification required. In most instances, no court order is required for the lender to foreclose.

If Florida becomes a non-judicial foreclosure state, the process of foreclosure will drastically change. Banks prefer non-judicial foreclosures because they generally take far less time than judicial foreclosures. However, many argue that non-judicial foreclosures side-step individual constitutional rights to due process in exchange for this faster process. For further questions, please contact an attorney.

Share this:

  • Click to share on Facebook (Opens in new window)
  • Click to share on LinkedIn (Opens in new window)
  • Click to share on Twitter (Opens in new window)
  • Click to share on Pinterest (Opens in new window)
  • Click to print (Opens in new window)
: Florida, foreclosure, Lawsuit, Non-judicial foreclosure state, Statutes
Hub Media Developer

Related Articles

Whose House is it Anyway?

June 27, 2014Berlin Patten Ebling

Deficiencies and Deficiency Judgements

July 15, 2011Hub Media Developer

Bank of America Process Changes

September 21, 2012Hub Media Developer

View All Blogs



Recent Real Estate Blogs

An Ounce of Prevention…

February 15, 2019Berlin Patten Ebling

In an Escalating Market, What you Need to Know about Escalation Clauses

February 8, 2019Berlin Patten Ebling

Overlap between Real Estate and Estate Planning (other than the word “Estate”)

February 1, 2019Berlin Patten Ebling

Come Find Us

SARASOTA OFFICE
3700 South Tamiami Trail, Suite 200
Sarasota, FL 34239
Phone: 941-954-9991
Fax: 941-954-9992
Get Directions »

VENICE OFFICE
247 Tamiami Trail South, Suite 201
Venice, FL 34285
Phone: 941-955-9991
Fax: 941-484-9992
Get Directions »

LAKEWOOD RANCH OFFICE
8130 Lakewood Main, Suite 206
Lakewood Ranch, FL 34202
Get Directions »

TAMPA OFFICE
Grand Central Place
442 W Kennedy Blvd #312,
Tampa, FL 33606
Get Directions »

The Proof is in the Rating

bbb west florida

Best Law Firms Badge
© 2018 by Berlin Patten Ebling PLLC. All rights reserved.

The lawyers at Berlin Patten Ebling handle a wide variety of real estate matters with clients throughout Southwest Florida and the Gulf Coast, including Sarasota, Venice, Bradenton, Lakewood Ranch, and Tampa.
Read our Disclaimer and Privacy Policy
en English
ar Arabiczh-CN Chinese (Simplified)nl Dutchen Englishfr Frenchde Germanit Italianpt Portugueseru Russianes Spanish