How Do I Defend a Foreclosure by a Homeowner's Association?
Full Question:
Answer:
It is possible for a homeowners association to foreclose on property in Florida after a lien for unpaid dues. In Florida, mortgages are foreclosed in equity, not at law. This means that the foreclosure claim shall be tried before a judge, rather than a jury. Therefore, if any counter-claims are filed by the homeowner, the court will hold a separate trial for any counterclaims against the foreclosing creditor. Although the foreclosure claim will be tried without a jury, counterclaims brought by a homeowner may be separately tried before a jury, apart from the main foreclosure lawsuit.
In Florida, because the lawsuit to foreclose on a homeowner is a suit in equity, it is virtually impossible to obtain an injunction to stop a court ordered sale. A sale can be set aside if there is a procedural error in the foreclosure process. However, a low sales price is insufficient reason to set aside the sale. The court order commanding foreclosure will specify how the foreclosure must take place, and the foreclosure must take place on those terms.
After the lis pendens and complaint have been filed, a process server (typically a County Sheriff) will deliver to you a copy of the complaint filed against you, the lis pendens and the summons. The summons is the document that explains your rights and responsibilities associated with the lawsuit that has just been filed against your for your default on the loan and the foeclosure.
A person has 20 days from receipt of the summons to file an answer with the Clerk of the Circuit Court. Additional time may apply for service by mail (see statute below . An answer is a legally sufficient response to the allegations that have been alleged against you in the complaint. The answer will generally either admit or deny each claim made by paragraph, or state an inability to admit or deny for lack of knowledge. Defenses may also be raised. Lack of funds and inability to pay is not considered a valid defense. A valid defense may include such excuses as identifying the incorrect owing party to the debt, or having made all payments on time, among others. The answer is an opportunity to show why the property shouldn't be foreclosed upon.
After a person files an answer, a hearing date is set. At the hearing the lender's attorney will be present and the borrower may tell the judge the reason for the default. By filing an answer, you have insured that a Clerk’s Default and a Default Judgment will not be entered against you without an opportunity to be heard.
In foreclosure lawsuits, the debtor typically asks the court for three things, in the following order:
-a temporary restraining order (which lasts for a certain number of days, typically under 2 weeks)
-a preliminary injunction (will last until the court decides the case), and
-a permanent injunction (which will be granted if you win your case).
The filing of any bankruptcy action automatically stays a foreclosure proceeding, regardless of type. At that point, whether the stay will be lifted depends on whether the mortgagor has equity in the mortgaged property. If the bankruptcy has been filed under a Chapter 11 petition, the bankruptcy court may "terminate, annul, modify or condition such stay" for cause, including the lack of adequate protection of an interest in property of the mortgage holder, or if the mortgagor does not have equity in the property and the property is not necessary for an effective reorganization.
For further discussion, please see:
http://www.ccfjedu.net/HOAFS720.3085-2007.htm
http://www.ehow.com/video_4753609_stop-florida-hoa-foreclosure.html
http://stopforeclosure.com/Florida_Foreclosure_Law.htm
http://myfloridalegal.com/pages.nsf/Main/55BC21CB13128F728525741800481491
