You can see it coming, feel it coming...you know you're behind on the house payment. At first just a few days late, then a few more days, then a month, then two. Then the real shock comes, when your mortgage company sends that bill that has a minimum payment due of $2, 3, or even 4 thousand dollars. Getting behind on your mortgage is dismaying and can quickly lead you down the path to hopelessness. But the road may not be as bleak or as short as your think.



My name is Ray LaBella and I am a Bankruptcy Attorney. I wanted to take a couple of minutes to talk to you about foreclosure. Most people think that falling behind on your mortgage payment more than a month pretty much assures that the bank can come take your house in the next day or two. The problem is that most people think of foreclosing on a homeowner to be about the same as evicting a renter. You get a three day notice and the sheriff shows up to throw you out on the street. Of course, not even evictions work exactly like this perception, and foreclosure is a much more involved process.

The way many people think of foreclosure, it is more like a repo of your house. That's just not true. First the lender, or its attorney, has to search the public records to find out who all may have an interest in the land. Then, a lawsuit has to be filed in the circuit court. A copy of the Complaint and the Summons has to be delivered to everyone who has an interest in the land, and each of them has 20 days to file an Answer to the Complaint. This part of the foreclosure can take between 25 and 60 days, sometimes longer, depending upon how quickly the lender does its homework, gets the complaint drafted and filed, and how quickly all of the parties can get served with copies.

Just like any other kind of lawsuit, what happens next depends upon the defendant, in this case, the homeowner. If the homeowner just ignores the Summons, then once his time to respond has expired, then the lender can request a judgment by default from the court. Simply put, if you don't show up to play, you lose automatically. Typically, the court will require a hearing before entering a judgment. The hearing can be set from 10 to 30 days from the day the lender files its request. If the court finds everything to be in order, then it will enter the judgment and set an auction date between 20 and 45 days from the date of the judgment.

Now, if you haven't kept up, that means that this process will take about 2 to 4 months. Although a sixty day foreclosure would be a real sight, the typical amount of time from referral to a foreclosure attorney until auction is about 4 months in Florida. But, that assumes that you have no defenses and just ignore the summons. Ignoring a Summons is almost always a poor decision. If you ignore the summons, you waive your right to be heard by the court. That's bad.

If you have an issue with your lender, like misapplied payments, monies held in suspense by your lender and not applied to your loan, improper notice of the foreclosure, or the like, then you should talk to an attorney and get an answer filed. The case will be set for a hearing so that your issues can be heard by the judge. Do not be afraid to talk to the judge. No one will be going to jail in a foreclosure case, unless of course you really don't behave yourself. Your lender may not have the facts straight, and if not, then they don't deserve to take your home. Don't assume that your lender has everything right and you are just out in the street. Don't assume that the judge will agree with your lender. Bottom line, don't assume. It is the lender's duty to prove they are right. Hold them to that duty. Sometimes just making them cover their bases will make them open a discussion with you about other alternatives to foreclosure.

If the case goes to a hearing, the time before you may have to vacate could increase by another 2 to 4 months, depending upon how your case develops. Meanwhile, you may have time to get some money together to get your payments caught up, to refinance your loan, or even find a buyer if you are looking to sell. Now this may sound like you are just stalling and delaying the inevitable and that your lender will be upset about this. I will let you in on a secret, though. Your lender doesn't really want your house. Being able to get caught up and keep it current will be far better for you and for the lender. Getting the house sold or refinanced accomplishes much the same goal. You keep your home and your lender gets paid what they lent plus interest. Everyone gets what they really want. And the worst case scenario, your house is foreclosed, just as if you never responded, only a little bit later.

So before you start packing, understand that foreclosure is far from an instant thing. It is long and involved, and many lenders are waiting longer to even start foreclosure proceedings in the first place. Many more have programs to help you get your loan back in good graces. To learn more about these programs, call the Homeownership Preservation Foundation at 1-888-995-HOPE or check out the Federal Trade Commission website at www.ftc.gov.

If you have run into a problem with your mortgage, you can always give us a call or visit our website at www.labellalaw.com. Remember, I am pulling for you. We're all in this together.