Florida foreclosure defense
From 1991 to 2024, SAJ has represented clients in hundreds of cases across various areas of practice. Specifically during the past 15 years, SAJ has represented Florida homeowners in over 470 mortgage and community association foreclosure defense cases in Circuit Courts located throughout south and central Florida involving thousands of hearings and innumerable trials with an aggregate valuation at issue of well over $100 million.
Why the Plaintiff in your foreclosure case hopes you won't defend against it
The path of least resistance to a foreclosure judgment allows the plaintiff to (1) take title and possession to your property; (2) purchase your property at a county foreclosure sale for as little as $100 more than what is owed to the lender; and (3) "fire sale" your property for substantially less than market value. All the plaintiff needs to recover is the amount of the foreclosure judgment (any additional amount, less other claims or expenses, would have to be paid to the homeowner, so the lender will not benefit financially from any amount received in excess of the amount owed on the note and mortgage).
What happens if a homeowner died and a plaintiff seeks foreclosure anyway?
For many years, some Florida foreclosure plaintiffs have obtained foreclosure judgments against deceased homeowners in violation of Florida law and the due process protections guaranteed under the 14th Amendment to the Constitution of the United States. In the case of Desbrunes v. U.S. Bank National Association, SAJ has represented homeowner and borrower Francois Desbrunes (in the trial court action) and his son Ronald Desbrunes (in the subsequent appellate court action) in which U.S. Bank improperly obtained final judgment of foreclosure. Francois Desbrunes died during the trial court foreclosure action which involved the decedent's homestead property. U.S. Bank failed to timely open a probate case for the purpose of appointment of a personal representative. A personal representative is an indispensable party to foreclosure actions involving real property that is not protected under the Florida Constitution's homestead exemption* where a mortgagee has died and the mortgage document has been properly recorded in the official records of the county in which the property is located.
Frequently questioned answers regarding Florida HOMESTEAD property:
- The Florida Constitution's HOMESTEAD EXEMPTION generally EXEMPTS homestead property from claims brought by unsecured creditors.
- A Florida homestead that is PROTECTED from unsecured creditors under the Florida Constitution can also be UNPROTECTED HOMESTEAD property with respect to a properly recorded mortgage than constitutes a secured lien against that homestead property.
- If a mortgage document has been properly recorded in the official records of the county in which the property is located, thereby creating an enforceable security interest in the property, that homestead property is NOT PROTECTED under the Florida Constitution's homestead exemption (i.e., the homestead property is NOT EXEMPTED from a foreclosure action brought by the secured creditor) .
- A properly recorded morgage related to a mortgage loan associated with a homestead property constitutes an EXCEPTION to the Florida Constitution's homestead EXEMPTION.
- If property is PROTECTED from creditors under the FLORIDA CONSTITUTION, a personal representative is not required to take possession or control of such property under applicable Florida probate statutes because it is not considered to be an asset of the estate of the deceased person, and a personal representative is not required to protect the property because it is protected by the Florida Contstitution.
- If property is NOT PROTECTED from creditors under the FLORIDA CONSTITUTION (for example, if a homestead property is security for debt associated with a recorded mortgage), a personal representative is REQUIRED to take possession or control of that property as an asset of the estate to manage and preserve it for the benefit of estate heirs and beneficiaries. Property that is not protected by the Florida Constitution requires a personal representative to protect that property.
- If the Florida Constitution does not protect certain property, a personal representative is required to protect that property under Florida probate statutes.
- If a personal representative is required to take possession or control of property that is an asset of the estate because that property is not protected under the Florida Constitution, that personal representative is an indispensable party to any court action involving the disposition of estate assets.
- A foreclosure action regarding a homestead property encumbered by a recorded mortgage lien necessarily involves property that is not protected under the Florida Constitution's homestead exemption, which requires the appointment of a personal representative who is an indispensable party to that foreclosure action.
- If a homestead property owner dies prior to the commencement of a foreclosure action involving that homestead property, and that homestead property is not protected under the Florida Constitution by virtue of a properly recorded mortgage in the official county records, the foreclosure action cannot be brought against that deceased person. The foreclosure action must be brought against the personal representative of the estate of the deceased homestead property owner.
- If a homestead property owner dies after a foreclosure action involving that homestead property is commenced, and that homestead property is not protected under the Florida Constitution because a related mortgage was properly recorded in the official county records, the foreclosure plaintiff must substitute a personal representative to represent the estate of that deceased person in the foreclosure action.
Why it makes sense for you to defend your foreclosure case
[You need as much time as possible: (1) to pursue an equity sale of your property for the highest amount possible before the plaintiff obtains a foreclosure judgment; or (2) if you have insufficient equity in your property, to pursue other strategic options (negotiating a loan modification agreement with your lender, saving funds for future rent, down payment on a different home, education, training, etc.) that will prepare you for such time (if any) that the plaintiff is able to obtain a foreclosure judgment against you.
Review our foreclosure defense Strategic alternatives page for more information about equity sales and non-equity strategies to improve your financial position.
If you need legal representation in a mortgage foreclosure action that has been filed against you, , Contact sajLAW today to communicate directly with S. Alan Johnson, Esq. Thank you for your kind consideration of our firm.