Florida Foreclosure timeline

[TBA]

You can always go down to the courthouse and request to view the file to see what it is. Its all public records in FLA.

Just checked the county records and a new entry has been posted. All it says is "Undelivered Envelope" 2 pages. The previous notice of Lack of Prosecution was only one page. Totally stumped as to what this might be. Wish they were more descriptive on the county site.

[Freddy03]

Yes. You can only have a non-judicial foreclosure if there is a "power of sale" in the "security instrument". The security instrument is usually a Deed of Trust... not a Mortgage. In Florida, most security instruments are mortgages and don't contain the "power of sale" clause. A non-judicial foreclosure requires a "Power of Sale" clause in order for a non-judicial foreclosure to work. It also requires the use of Trustees to hold the deeds and to have the power to exercise that power of sale clause.

This is the problem with politicians... they are always trying to solve problems that happened in the past. Changing to a non-judicial foreclosure process would not help Florida's "current" foreclosure crisis... at all. It's the banks (and ABA) that are pushing for this.

And it's not like Florida is in some super-minority. More than 20 States have judicial foreclosures. So don't believe for a minute that Florida is somehow "different" than other States.

Thanks for explaining it

[Freddy03]

Wouldn't matter because most people have Mortgages and not a Deed of Trust. There is no power of sale clause in my Mortgage, so non-judicial foreclosure can't happen. This would be for new loans and promissory notes.

Where would I find out if I had a power of sale clause? I did re-fianance the house back in 07 or 08.

[justbroke]

Where would I find out if I had a power of sale clause? I did re-fianance the house back in 07 or 08.

If your security instrument reads "Mortgage" on the top, then you probably don't have a Power of Sale clause! If you have a "Deed of Trust', there probably is a power of sale clause in it.

The power of sale clauses are usually in a section of the Security Instrument (Deed of Trust or, in limited cases, Mortgage) titled "NON UNIFORM COVENANTS". It is usually towards the end of the instrument. One of the paragraphs will reads something like "Acceleration; Remedies". That paragraph will detail the "power of sale".

[Freddy03]

If your security instrument reads "Mortgage" on the top, then you probably don't have a Power of Sale clause! If you have a "Deed of Trust', there probably is a power of sale clause in it.

The power of sale clauses are usually in a section of the Security Instrument (Deed of Trust or, in limited cases, Mortgage) titled "NON UNIFORM COVENANTS". It is usually towards the end of the instrument. One of the paragraphs will reads something like "Acceleration; Remedies". That paragraph will detail the "power of sale".

Thanks! I'll check my paperwork.

[Freddy03]

Ok I'm confused - shocker! My paperwork states only "Note" at the top. I did find a paragraph that states if the lender excercises this option lender shall give borrower notice of acceleration. The notice shall provide a period of not less than 30 days from the date the notice is given in accordance with Section 13 within which borrower must pay all sums secured by this security instrument. If borrower fails to pay these sums prior to the expiration of this period lender may invoke any remedies permitted by this security instrument without further notice or demand on borrower.


I'm not sure what this means....

[Freddy03]

It does not state non uniform secured note - it reads uniform secured note.

[justbroke]

You are looking at the Promissory Note. You need to look at the Deed of Trust or Mortgage. This is the document that is filed (recorded) with your recorder of deeds in your area. I would just make sure that you have "both" documents. One will have "Note" (or Promissory Note) on the first page, and the other will read "Mortgage", "Residential Mortgage", or "Deed of Trust" (or a "Security Deed" in some states). This information would be in that document, not the Note.

[Freddy03]

You are looking at the Promissory Note. You need to look at the Deed of Trust or Mortgage. This is the document that is filed (recorded) with your recorder of deeds in your area. I would just make sure that you have "both" documents. One will have "Note" (or Promissory Note) on the first page, and the other will read "Mortgage", "Residential Mortgage", or "Deed of Trust" (or a "Security Deed" in some states). This information would be in that document, not the Note.

Great I don't have that. I have the one that is marked paid from the first time we refi'ed but not from the last (that one states Mortgage). I'll keep looking...urgh

Thanks!

[justbroke]

Great I don't have that. I have the one that is marked paid from the first time we refi'ed but not from the last (that one states Mortgage). I'll keep looking...urgh

If you have a satisfied Mortgage, then they send you back the "Promissory Note" (or "Mortgage Note", or simply "Note") as proof that you paid it off! This is because the Note is (usually) a bearer instrument and they can't foreclose against you if "you" are in possession of the original Note! They will usually stamp these as "satisfied".

[kmattin]

Can a bank foreclose while a person is in chapter 13 and the bank has not motioned for relief of stay?

[cory1848]

Monthly update. Last Thursday I received responses from the law firm to the answers I filed against the complaint. I thought that was weird because they files the complain with which I supplied answers to. I have been waiting for 11 months now for a court date regarding that. I thought that once i answered the complaint, a court date would be set to duke it out. The responses I got Thursday, was a blanket denial of my answers. One thing stood out was that they mentioned the original note would be supplied at the MSJ hearing. I was under the impression this should have been supplied in discovery. They couldn't supply it then but they can now?

Anyways... The notice was dated Oct 11. Usually, once the firm files something, court records online are updated at the latest next day. They are very quick to update. I just checked the county records and no update has been issued. I am wondering if the firm never supplied it to the court. There is a new lawyer listed for the firm, I am guessing the old lawyer is no longer there which may be a reason my case has taken so long.

So what's next? Sit and wait for a court date? I am guessing once that date it issued, we have about 3-4 months left?

[justbroke]

Can a bank foreclose while a person is in chapter 13 and the bank has not motioned for relief of stay?

The bank is best served by still seeking relief from the automatic stay just to make sure that there are no other complications with the Trustee.

[BananaCabana]

Monthly update. Last Thursday I received responses from the law firm to the answers I filed against the complaint. I thought that was weird because they files the complain with which I supplied answers to. I have been waiting for 11 months now for a court date regarding that. I thought that once i answered the complaint, a court date would be set to duke it out. The responses I got Thursday, was a blanket denial of my answers. One thing stood out was that they mentioned the original note would be supplied at the MSJ hearing. I was under the impression this should have been supplied in discovery. They couldn't supply it then but they can now?

Anyways... The notice was dated Oct 11. Usually, once the firm files something, court records online are updated at the latest next day. They are very quick to update. I just checked the county records and no update has been issued. I am wondering if the firm never supplied it to the court. There is a new lawyer listed for the firm, I am guessing the old lawyer is no longer there which may be a reason my case has taken so long.

So what's next? Sit and wait for a court date? I am guessing once that date it issued, we have about 3-4 months left?

Cory1848--just curious if it is STILL Albertelli Law who is handling your FC? We have had no movement or contact from Albertelli Law since the "correction" of a correct affidavit in February 2011. The last thing listed on the clerk's public records website was the Lis Pendens from June of 2010. We are going on 2.5 years since the last payment made and I have abandoned the home completely now. There is still some leftover trash/freezer/etc. there since I couldn't get my DH to help me clean out the old house and I gave up and left it. We also have quit mowing the yard and taking any care of the place for about two-three months now. The pool heater and filter system has been stolen off of the home and the pool is greener than I have ever seen it. There are multiple wasp nests and huge spiders/webs all over the home and in the entry way so I wouldn't go into the home now unless someone paid me. I feel bad for my old neighbors but I just can't take care of the home anymore. The attorney told me to let it go a long time ago but I had continued until I gave up. I still get an occasional call attempt from Wachovia/Wells Fargo and some mail telling us about our "options". Other than that we are just waiting to be sued by someone so we can file the bankruptcy and surrender the home officially. Good thing we waited as I was just laid-off from my job as they are relocating the work to another state. Still, I hate the waiting game. I am getting to the point of thinking about filing the BK just so I can get started on the putting the BK behind me.

At this point, the house is in such bad shape that even if the bank decided to GIVE it to us I am not sure we would WANT it. It would cost us a ton to get it habitable again.

[cory1848]

Cory1848--just curious if it is STILL Albertelli Law who is handling your FC? We have had no movement or contact from Albertelli Law since the "correction" of a correct affidavit in February 2011. The last thing listed on the clerk's public records website was the Lis Pendens from June of 2010. We are going on 2.5 years since the last payment made and I have abandoned the home completely now. There is still some leftover trash/freezer/etc. there since I couldn't get my DH to help me clean out the old house and I gave up and left it. We also have quit mowing the yard and taking any care of the place for about two-three months now. The pool heater and filter system has been stolen off of the home and the pool is greener than I have ever seen it. There are multiple wasp nests and huge spiders/webs all over the home and in the entry way so I wouldn't go into the home now unless someone paid me. I feel bad for my old neighbors but I just can't take care of the home anymore. The attorney told me to let it go a long time ago but I had continued until I gave up. I still get an occasional call attempt from Wachovia/Wells Fargo and some mail telling us about our "options". Other than that we are just waiting to be sued by someone so we can file the bankruptcy and surrender the home officially. Good thing we waited as I was just laid-off from my job as they are relocating the work to another state. Still, I hate the waiting game. I am getting to the point of thinking about filing the BK just so I can get started on the putting the BK behind me.

At this point, the house is in such bad shape that even if the bank decided to GIVE it to us I am not sure we would WANT it. It would cost us a ton to get it habitable again.

According to the denial response I received, Albertelli is still handling it, it came from them. It is still not listed in the court records and I am really starting to think that Albertelli law received the Lack of Prosecution order and gave it to someone to write a form letter response to my answers just to keep the case from being dismissed. We shall see though. At this point, I think I will let the courts handle the case. I am not going to waste my time fighting anything anymore. I would love to get 6 more months out of this. That would really set us up. We will stay until the sale date hits and find a place about a month before the sale date to move to.