Archive for March 29th, 2012

Florida’s Foreclosure Sale Procedure

Of all the blogs I’ve written, this one may be the least sexy ever.  What foreclosure defense attorney wants to talk about the procedures that must be followed when a foreclosure sale is conducted?  After all, any homeowner in that situation has been foreclosed and is facing a foreclosure sale on his/her property.

That said, any homeowner in this situation should be aware there are procedures which must be followed for a foreclosure sale to take place.  For instance, Florida Statute 45.031 requires a Notice of Sale to be published once a week for two consecutive weeks in a newspaper of the county where the property is located, and subsection (2) of the statute requires a list of specific things that must be included in the Notice of Sale.

I realize this isn’t anything that will cause you to dance a jig.  However, if you’ve exhausted other remedies and are facing a foreclosure sale, it’s worth reading Fla. Stat. 45.031 to ensure the sale has been conducted properly.  If not, then you can object to the sale, and as this Florida appellate court ruled, your objection would be well-taken, preventing that sale from getting confirmed.  That won’t change the Final Judgment, but it will force the sale to be rescheduled (and the proper procedure followed).

Mark Stopa

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Entitlement to Discovery Before Foreclosure

There are many cases from Florida’s appellate courts which explain how litigants are entitled to complete discovery before facing an adverse summary judgment.  There have been precious few such cases in the foreclosure context, though, which is why I enjoyed reading this decision from Florida’s Fourth District Court of Appeal.

The opinion is somewhat lengthy, but the point is simple.  Florida courts cannot grant a summary judgment of foreclosure when homeowners are seeking discovery that may be pertinent to the issues being litigated.  Hence, as I explained recently here, not only is discovery important to force banks to disclose information, the mere pendency of such discovery can prevent a foreclosure judgment from being entered.

This is, of course, all the more reason to fight foreclosure with attorneys who are experienced in the discovery process.

Mark Stopa

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