Many people believe that once a foreclosure case is filed against them that there are no legal remedies or defenses that are available to them in this difficult time. Consequently, they may fail to timely respond to the lawsuit filed against them by the bank. In those cases a default judgment will be entered against the homeowner and expedite the bank’s ability to remove them from their home.

In Florida, a bank is required to prove in court that it is entitled to foreclose on a home mortgage.

For example, the bank is required to prove “standing” or that it is the bank with whom the original note/mortgage  was signed, or that the note/mortgage was validly sold or transferred by the original bank. If the bank cannot do so the lawsuit may be dismissed or delayed months while it attempts to locate the original note/mortgage.

In addition to standing, the bank may be required to prove, depending on the mortgage, that it complied with all “conditions precedents” such as written notice to the homeowner of a default and a thirty (30) day time period to cure the default.  If it failed to do so the foreclosure action may be dismissed or delayed for several months.

Failing to respond to a foreclosure lawsuit clearly makes it easier for a bank to remove a homeowner from a home. Even if there are no defenses to a foreclosure action, or the bank ultimately corrects its mistakes made in the lawsuit, the hiring of a lawyer to handle the foreclosure case will guarantee that due process is followed, and enable the homeowner to remain in the home much longer than if a default is granted by the court.

Mark Maynard, Attorney at Law