A civil action summons should arrive as soon as your mortgage lender files suit to foreclose on your house. Unlike some other states, lenders in Florida have to go to court to take your house. Once your lender files the foreclosure lawsuit, he must then serve you with a summons, a document that informs you when the first hearing in the case takes place. The summons also tells you how long you have to file a response with the court. If you want to keep your house, it's important to respond by the deadline.
Assess your options. If you respond even though you don't see any way to win the case, the foreclosure process will take longer, and you can stay in your house without paying the mortgage until the lender auctions off your house. If the sale doesn't pay off your debt, however, Florida lets your lender sue you for the remainder, including the months you stayed in the house. If you don't owe what the lender claims or you intend to raise some other defense in course, filing a response is essential.
File your response within 20 days of receiving the summons. In Florida, that's all the time you have; if you take any longer, you lose your right to speak up at the foreclosure hearing. If that happens, the judge can simply rule that your lender wins by default and proceed to approve the foreclosure.
Prepare your defense for the hearing. Common Florida defenses, attorney Michael Compo says online, include that the lender had a history of letting you make payments late without objection; that the lender didn't abide by the terms of the contract; that the interest rate was usurious; that the lender engaged in fraud; or that the lender didn't follow the federal Truth in Lending Act. Homeowners have won a number of other cases because the lender couldn't prove to the judge's satisfaction that the company owned the mortgage.
Tips & Warnings
- There have been cases in Florida where homeowners never received a summons even though the process server stated otherwise. This can lead to a default judgment and the lender scheduling a sale before you even hear about the case. Proof that you didn't receive a summons can stop the foreclosure, however.
- Foreclosure Law: Florida Foreclosure Law
- Nolo: How Foreclosure Works
- Pro Foreclosure Defense; Common Defenses to Foreclosure; Michael Compo
- MSNBC; "Angel" of Foreclosure Defense Bedevils Lenders; Mike Stuckey; Dec. 19, 2008
- "Jacksonville Times Union"; Fraud in Foreclosure Summons ...; Roger Bull et al; Oct. 2010
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