Practice Areas

• Foreclosure Defense

• Short Sale

Foreclosure is the legal and professional proceeding in which a mortgagee, or other lien holder, usually a lender, obtains a court ordered termination of a mortgagor’s equitable right of redemption. Usually a lender obtains a security interest from a borrower who mortgages or pledges an asset like a house to secure the loan. If the borrower defaults and the lender tries to repossess the property, courts of equity can grant the borrower the equitable right of redemption if the borrower repays the debt. While this equitable right exists, the lender cannot be sure that it can successfully repossess the property, thus the lender seeks to foreclose the equitable right of redemption. Other lien holders can also foreclose the owner’s right of redemption for other debts, such as for overdue taxes, unpaid contractors’ bills or overdue homeowners’ association dues or assessments.

The foreclosure process as applied to residential mortgage loans is a bank or other secured creditor selling or repossessing a parcel of real property (immovable property) after the owner has failed to comply with an agreement between the lender and borrower called a “mortgage” or “deed of trust”. Commonly, the violation of the mortgage is a default in payment of a promissory note, secured by a lien on the property. When the process is complete, the lender can sell the property and keep the proceeds to pay off its mortgage and any legal costs, and it is typically said that “the lender has foreclosed its mortgage or lien”. If the promissory note was made with a recourse clause then if the sale does not bring enough to pay the existing balance of principal and fees, the mortgagee can file a claim for a deficiency judgment.

Types of foreclosure
The mortgage holder can usually initiate foreclosure at a time specified in the mortgage documents, typically some period of time after a default condition occurs. Within the United States, Canada and many other countries, several types of foreclosure exist. Two of them “namely, by judicial sale and by power of sale” are widely used, but other modes of foreclosure are also possible in a few states.

Foreclosure by judicial sale, more commonly known as Judicial Foreclosure, is available in every state and required in many, involves the sale of the mortgaged property under the supervision of a court, with the proceeds going first to satisfy the mortgage; then other lien holders; and, finally, the mortgagor/borrower if any proceeds are left. As with all other legal actions, all parties must be notified of the foreclosure, but notification requirements vary significantly from state to state. A judicial decision is announced after pleadings at a (usually short) hearing in a state or local court. In some fairly rare instances, foreclosures are filed in Federal courts.

Foreclosure by power of sale is also allowed by many states if a power of sale clause is included in the mortgage or if a Deed of trust was used instead of a mortgage. In some states, so-called mortgages are actually deeds of trust. This process involves the sale of the property by the mortgage holder without court supervision. It is generally more expedient than foreclosure by judicial sale. As in judicial sale, the mortgage holder and other lien holders are respectively first and second claimants to the proceeds from the sale.

Other types of foreclosure are considered minor because of their limited availability. Under strict foreclosure, which is available in a few states including Connecticut, New Hampshire and Vermont, suit is brought by the mortgagee and if successful, a court orders the defaulted mortgagor to pay the mortgage within a specified period of time. Should the mortgagor fail to do so, the mortgage holder gains the title to the property with no obligation to sell it. This type of foreclosure is generally available only when the value of the property is less than the debt (”under water”). Historically, strict foreclosure was the original method of foreclosure.

When you are served with a foreclosure lawsuit, you have only 20 days to respond. If you have recently been served with a foreclosure lawsuit, please contact the law firm of Boyette, Cummins & Nailos, PLLC, today. We will discuss your options with you and figure out what actions need to be taken immediately. Equipping yourself with the right foreclosure information can make the difference of staying in your home. Whatever plan you choose to take, the most important thing is you will be able to rebuild your life.

If you are in the process of foreclosure, facing foreclosure soon, or would simply like more Foreclosure Information, please call or email Boyette, Cummins & Nailos, PLLC, for a Free Consultation to learn what options are available to you.

Tips to Stop Your Foreclosure:

Use a licensed Attorney – One that has years of foreclosure experience in dealing with the banks and their attorneys. The attorneys at Boyette, Cummins & Nailos, PLLC, know what the bank is going to do before it even does it.

Loan modification companies – Do not hire a loan modification company to represent you. It could mean the difference between keeping your home or losing it.

Do something about it – 98% of Americans do nothing and end up losing their home because they did not know what to do or waited too long and now it is too late. This problem will not go away after the bank takes your home. After the bank determines its loss on your property, it will file a lawsuit to recover that money from you.

Many homeowners are not aware that there are usually several defenses that can be asserted on their behalf in every foreclosure action. These defenses usually have something to do with the conduct of your loan officer, items not properly disclosed and regulatory requirements that the lender has not complied with. Our firm will conduct an in depth analysis of your case and assert all relevant claims to fight your foreclosure.

Call or email the law firm of Boyette, Cummins & Nailos, PLLC, today about your Florida foreclosure matter. We are committed to do our best for you and your family. You can count on the attorneys of Boyette, Cummins & Nailos, PLLC, to give you practical and sound advice and to support you every step of the way through your trying times to help ease your burden.