Q: From start to finish, how long does the process of foreclosure usually take in Florida?
A: This process varies from lender to lender. However, from the date of your first missed payment to the date of the foreclosure auction, it is possible that as much as six months could elapse. It depends on many variables but the two biggest factors are your local enforcement and your mortgage holder's desire for moving quickly.
Q: Can I be evicted from my home during the foreclosure process?
A: It would be very unusual. Only when a foreclosure sale has happened and there is a new owner do you normally no longer have the right to occupy the house.
Q: Would my lender try to work with me regarding my late payments?
A: Your lender is generally not highly motivated to be flexible in working with you if you are already in the foreclosure process. The larger lenders have millions of loans on the books. Most people find that trying to work out arrangements with lenders themselves often only results in frustration. Endless attempts to contact their lender by phone and endless paperwork only seem to get them nowhere.
Q: If the foreclosure process has begun, can it be stopped?
A: Yes. If you start exploring your options when you are only late with your first payment, there are quite a few different options. However, as the time between your initial late payment and the time you get started addressing your problems drags on; your options begin to get more and more limited. The time to act is now - not later.
Q: What is the latest that I can wait until I have no options left?
A: You always have some options. Realistically, even after a foreclosure and eviction, you could still buy your house back. Realistically, if you haven't been able to make a deal to save your house before eviction, the chances are very good that you will be unlikely to structure a deal to buy the house back. This is largely based on the assumption that you hired a capable attorney and had the ability to strike a deal. If so, you would have done so long before a sheriff removed you from the house.
Q: What exactly is the foreclosure process?
A: The foreclosure process is as follows:
1. You miss one or more payments on your mortgage.
2. The lender will usually send you a late notice and try to contact you by mail or phone to try and resolve the problem.
3. If no arrangements can be agreed upon and the homeowner continues to miss payments, then the lender will make a written demand for payment of the full amount owed on the property. This demand is based on the acceleration clause usually found in a mortgage agreement.
4. The lender then sends a notice of intent to foreclose.
5. After sending notice, the lender files a legal action with the court.
6. The legal notice is then published in the local newspaper.
7. Court issues order allowing lender to foreclose.
8. Legal notice of the sale is also published in the paper.
9. Finally, the property is sold at auction to the highest bidder.
Q: What is really my best available option?
A: There is no one answer to that question. It depends on many different variables and all of them must be carefully considered when formulating a plan of action.
Q: If I cannot stop the foreclosure sale process and my house does go to a foreclosure sale, what will happen at that sale?
A: The auction sale usually includes these events:
• All the legal notices and the property description are read aloud by the Auctioneer.
• Bidders are then required to offer their deposits before bidding begins.
• The auction is then held until a final bid has been received.
• All non-winner's deposits are then returned.
• A deed of purchase and any other appropriate paperwork are then completed by the purchaser and the mortgage holder.
• The purchaser then is extended a short period of time (until 4pm the same day) to satisfy to purchase.
• At the closing arranged by the new owner formal title to the property then passes to the new owner.
Q: How are the proceeds from a foreclosure sale distributed?
A: Funds are usually distributed in this order:
1. Almost always, any outstanding real estate taxes are paid first.
2. Next, proceeds will be used to pay off mortgages in their order of precedence (first mortgage, second mortgage, etc.).
3. Then, any other lien holders and other secured creditors who have valid claims against the property are paid.
4. Last, if there's any money left from the above, it is paid to the former owner.
Q: What happens if there's not enough of a bid to pay off the mortgage?
A: If there's not enough proceeds from the sale to cover the debts owed on the property (mortgage(s), liens and others), the remaining debt is considered to be an unsecured debt. Therefore, you are still responsible for the debt.
Q: Why do I need a will?
A: Remember, if you have no will, the State of Florida has one for you, and you may not be happy with what it says. Everyone should have a will.
Q: Can I do my own will?
A: That certainly is a possibility if you know what you are doing. Will it be valid or carry out your wishes as you intend? I do not know. Is it recommended? Absolutely not(not even with all of the computer software out there). The validity as well the effectiveness regarding your wishes are only very few of the unknowns regarding a self-made will. While commercially available drafting software exists, it is unlikely that a software program will interact with you regarding all the implications upon which a specific, informed and complete estate plan will be made.
Q: If I have a will, is my estate planning complete?
A: A will is only part of a complete estate plan. A will cannot give your family the power to make decisions with respect to your health and property while you cannot speak for yourself. These documents are called Durable Powers of Attorney and are a very important part of your overall estate plan. While wills are important, they do not control many types of assets. For example, a will has no legal affect regarding retirement accounts or other assets that have transfer clauses. In fact, a well drafted will should coordinate with all other transfer methods effective at death.
Q:What is a power of attorney?
A: A power of attorney is a document that authorizes another person, called your agent, to act on your behalf. A power of attorney allows the agent to act, even if you become incompetent. Your agent should be someone you trust completely to handle your finances honestly and according to your wishes.
Q:What can your agent do?
A: According to your provisions, your agent may be able to sign legal documents in your place, buy and sell real estate for you, pay your bills, and take other financial actions on your behalf.
Q:What about health care decisions?
A: A separate power of attorney for healthcare can be written giving your agent the authority to make health care decisions for you, if and when you are unable to make them.
Q:Is a power of attorney for health care different from a living will?
A: A living will tells physicians your wishes regarding life-sustaining procedures if you have a terminal illness, an end-stage disease or if you are in a persistent vegetative state. You may direct that life-sustaining procedures be withheld or withdrawn, or you may direct that they be used to sustain your life. A designated health care agent makes most decisions related to your health care. If you specifically grant the power, your agent can decide to withhold or withdraw life support, admit you to a nursing home and make other health care decisions.
Q:What if I become incapacitated and have not executed powers of attorney?
A: If you have not appointed an agent or signed a power of attorney and you are no longer able to manage your property or care for yourself, any family member, agency, health care provider or interested person may petition the court to appoint a guardian to act on your behalf. The guardian will be responsible for managing your financial assets and also may be responsible for decisions related to your care.
Q:What is probate?
A: Probate is a legal process that takes place after a person dies. An attorney or representative of the estate will document that the person's will is valid, help determine and value the person's property, pay debts and taxes and distribute the remaining property. This process can take a few months to more than a year depending on the complexity of the estate.
Q:Must all of a deceased person's property go through probate?
A: A certain amount of property can pass free of probate, or through a simplified probate procedure. Property in a trust or that passes outside of your will is not subject to probate.
Q:What is estate planning?
A: Estate planning helps ensure that your assets will pass to the beneficiaries you designate, limit estate taxes and, when possible, avoid probate.
Q:What is in an estate plan?
A: A proper estate plan may include a will or trust, a directive to your physician or a durable power of attorney, as well as any final instructions.
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