Foreclosure and Loan Modification Frequently Asked Questions:
(Click on a question to see the answer)
What is the difference between judicial and non-judicial foreclosure?
- A non-judicial foreclosure is a foreclosure process in which the lender does not require to file a lawsuit against a homeowner in order to foreclosure on a property. Florida is strictly a judicial state, meaning that if a bank wants to foreclose on a property they have to go through Court. This means that Florida homeowners are afforded due process and the right to bring legal defenses against the bank. An experienced foreclosure attorney will be able to assist you in defending your foreclosure.
What is the difference between the promissory note and the mortgage?
- The promissory note and the mortgage are the two main parts of the loan documents you signed when you purchased your home. The promissory note evidences the amount of money you borrowed from your bank and the terms of your repayment, including your interest rate, maturity date etc. Your mortgage is the agreement that gives the bank the right to foreclose on your property if you fail to repay the debt as evidenced by the note.
What is the difference between the mortgage and the deed?
- The mortgage is the document that acts as lien against your property giving the bank a security interest in your property while you repay your loan. Your deed is the title to your property, the document that evidences who owns the real estate. It is a common misconception that while you have a mortgage the bank owns the property. The bank simply has an interest that can be enforced if you do not pay, but it is the borrower who owns the property.
What if only my spouse is on the note/mortgage but I am on the deed?
- It is common between married couples that only one spouse will appear on the loan documents while both appear on the deed. What this means is that only the spouse in the loan documents is actually personally responsible for payments on the mortgage.
My husband passed away and it was his loan, can I get modification?
- Yes, if your spouse passed away and it was his or her loan, you can still work with your lender to secure a loan modification that will help you stay current on the mortgage even with reduced income. At the same time, we negotiate a modification we can work with your lender so you can assume the loan in your name if that is in your best interest.
Can my Homeowners’ Association or Condo Association foreclose on my property?
- Yes, if you fall behind on your assessment payment to your association, the association has the right to bring a foreclosure action against you and have the court auction off your property to the highest bidder. At First Legal we can assist you by defending the association foreclosure and to negotiate a settlement that works for you.
What is a deficiency Judgment?
- When a lender successfully completes a foreclosure action against a homeowner and the property is sold at an auction, the amount it sells for is often less than the judgment amount against you. That difference is called a deficiency and your lender has the right to ask the court enter a second judgment against you for that difference. Once a lender has a deficiency judgment they can attempt to collect against you personally, by garnishing your wages, bank accounts or levying on other assets you might own. At First Legal we can help you deal with a lender who is going after you personally.
What is forced placed insurance and is it legal?
- If you allow your homeowners insurance to lapse or fail to provide your lender with evidence that you carry property insurance, your mortgage documents allow your lender to purchase their own insurance policy to secure their interest in the property. This is usually referred to as forced placed insurance and it can be three or four times more expensive than an insurance policy you can get yourself. If your lender force places insurance on your property they will pass those costs to you which will raise your monthly mortgage payments. You always have the right to purchase your own policy and have the forced placed insurance removed.
Can my lender refuse to accept my payments?
- Yes, usually if you have fallen behind more than three months on your mortgage payments, your lender has the right to declare you in default of your loan and refuse to accept any further payments unless you are able to pay the amount necessary to cure the default.