How to avoid foreclosure in Florida

How foreclosure works in Florida, step by step

1. Missed payments and the 120-day wait

   Under federal rules, your servicer generally cannot file a foreclosure case until you are more than 120 days behind. Use this time to call your servicer, apply for help in writing, and talk to a HUD-approved housing counselor. Most mortgages also require a written default letter before the lender can demand the full balance.

   12 C.F.R. § 1024.41(f)

2. The lender files a lawsuit

   The lender files a foreclosure complaint in circuit court and has you served with a summons. For a home loan, the complaint must say the lender holds the original note or explain exactly why it has the right to enforce it.

   Fla. Stat. §§ 702.01, 702.015

3. You have 20 days to respond

   You must file a written response with the court within 20 days of being served. If you do not, the lender can win by default. In your response you admit or deny each paragraph and raise any defenses. You can ask the judge to send the case to mediation.

   Fla. R. Civ. P. 1.140(a)

4. Hearing and final judgment

   The lender asks the judge for a final judgment, usually by summary judgment or at a trial without a jury. The lender can also ask for a faster 'order to show cause' hearing, which cannot be held sooner than 20 days after that order is served or 45 days after the complaint was served, whichever is later. The judgment states what you owe and sets the sale date.

   Fla. Stat. § 702.10

5. Notice of sale and the clerk's sale

   The sale must be set at least 20 days and no more than 35 days after the judgment, unless the lender agrees to a later date. Notice is published for at least 2 weeks before the sale. You can still stop the sale by paying the full amount in the judgment before the clerk files the certificate of sale.

   Fla. Stat. §§ 45.031, 45.0315

6. Certificate of title

   After the sale the clerk files a certificate of sale. If no one objects within 10 days, the clerk files a certificate of title and ownership passes to the buyer. Any objection to the sale must be filed in that 10-day window.

   Fla. Stat. § 45.031(4)-(6)

7. Moving out

   Once the certificate of title is issued, you no longer own the home. If you are still living there, the new owner cannot simply take possession: it needs a court order and a writ of possession from the clerk. The sheriff serves the writ, and everyone must leave within 24 hours of being served. Plan your move before this point, and check with the clerk for any surplus money from the sale.

Florida foreclosure deadlines to know

These are the periods written into the law. Your own dates are on the notices you received. If a notice and this page disagree, trust the notice and ask a counselor or lawyer.

Your rights as a homeowner in Florida

Other Florida protections

• Lender must show it has the right to foreclose

  In a home foreclosure, the lender's complaint must state that it holds the original note, or explain in detail the facts that give it the right to enforce the note. If the note is lost, the lender must file a sworn statement about it.

  Fla. Stat. § 702.015

• Deficiency capped at fair market value for owner-occupied homes

  If you live in the home, any deficiency is limited to the difference between the judgment and what the home was actually worth on the sale date. A home with a homestead tax exemption is presumed to be owner-occupied.

  Fla. Stat. § 702.06

• Short deadline for deficiency claims

  A lender has 1 year to sue for a deficiency on a 1 to 4 family home, counted from the day after the certificate of title is issued or the day after it accepts a deed in lieu of foreclosure.

  Fla. Stat. § 95.11(6)(g)

• No forced payments or move-out order during the case for owner-occupants

  Florida lets a lender ask the court to order payments during the lawsuit or to order the occupant out. That rule does not apply to the foreclosure of an owner-occupied residence.

  Fla. Stat. § 702.10(2)(i)

• Limits on companies that buy your right to surplus money

  If someone offers to collect your sale surplus for a fee, the deal must be in writing with required disclosures, including that you do not need a lawyer or anyone else to claim the money, and their total pay cannot be more than 12 percent of the surplus.

  Fla. Stat. § 45.033

Florida mortgage assistance programs

If the home is sold for more than you owe

If the home sells for more than the judgment and costs, the clerk of court holds the extra money. Junior lienholders who file timely claims are paid first, and the rest is presumed to belong to the owner of record on the date the lender filed its notice of the lawsuit (the lis pendens). You claim it by filing with the clerk, and you do not need a lawyer or a company to do this. File before the clerk reports the money as unclaimed: 1 year after the sale, any surplus still with the clerk is treated as unclaimed and sent to the state's unclaimed property program.

Fla. Stat. §§ 45.031, 45.032, 45.033

Ways to avoid foreclosure

Most of your options come from federal rules and from whoever owns or insures your loan, so they work the same way in Florida as anywhere else. What changes by state is how much time you have to use them.

• Repayment plan
• Forbearance
• Payment deferral or partial claim
• Loan modification
• Reinstatement
• Short sale
• Deed in lieu of foreclosure
• Chapter 13 bankruptcy