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A lease is a particular form of an agreement. Its terms govern the relationship between the parties who enter into it and their legal rights and responsibilities. It is important, therefore, that before entering into a lease, you review its terms with an attorney who can explain to you the legal effect of its various provisions.
The DeWitt Law Firm can help to draft any type of lease and can review any proposed lease agreement with you. Since our experience includes drafting and litigating various lease agreements and provisions, we are particularly familiar with those lease provisions that often pose the most potential for future disputes and can draft your leases to maximize your chance of avoiding those types of difficulties.
There are many types of leases. For example, there are:
Florida is a judicial foreclosure state, which means that all foreclosures must be processed through the court system.
Notice of Default – This is a written notice from the lender to the mortgage holder. It must contain specific information in order for the lender to proceed with the foreclosure lawsuit. If the lender fails to include the required default language, the foreclosure lawsuit, once it is filed, may be dismissed. If a borrower receives a Notice of Default and does not cure the default; the lender may file a lawsuit to foreclose on the mortgage.
Foreclosure Complaint – Once a borrower receives a Complaint, they only have 20 days to respond or a default may be entered against him or her. The Foreclosure Complaint must plead standing, jurisdiction, that the proper notice requirement have been met, and the amount owed. Additionally, the Foreclosure complaint must include a verification clause that is signed by an individual who has actual knowledge regarding your loan.
Standing: The bank that filed the lawsuit may not be the original lender that issued your note and mortgage. If the bank that filed the foreclosure lawsuit against you cannot prove that it rightfully owns and holds the original note and mortgage at the time it filed the lawsuit, then the lawsuit may be dismissed. The bank must establish that it has the right to proceed with the foreclosure lawsuit.
Securitization: Many notes and mortgages have been securitized and placed in trusts for the purposes of selling the notes and mortgages to investors. The trust then must prove that they (1) hold both the note and the mortgage and (2) that they are authorized to proceed with the foreclosure lawsuit. It is important to look at the securitization agreement of the trust that holds the note and mortgage in order to determine the possible defenses that may be available.
Conditions to Accelerate the Mortgage: Many mortgages require written notice of a default and a 30-day opportunity to cure.
The amount owed: Banks routinely miscalculate the amounts owed on a note and mortgage.
Verification of Complain: Florida Rules of Civil Procedure provide that when filing an action for foreclosure of a mortgage on residential real property, the complaint must be verified.
If you have received a foreclosure Complaint, it is imperative that you respond within 20 days. Failure to do so may result in a default judgment and the bank may be allowed to foreclose on the property.
How long is the average foreclosure process?
The timeframe for a foreclosure action varies dramatically and is difficult to estimate.
Am I required to have an attorney during a foreclosure?
You are not required to hire an attorney to defend a foreclosure action. However, it is advised that once you are served with a foreclosure complaint, you have an experienced foreclosure attorney review your paperwork within 20 days. An attorney’s role in the foreclosure process is a vital one. They will appear on your behalf and defend you throughout the Court proceedings. Additionally, an attorney may be able to work with your lender to determine if there are other options besides foreclosure.
What should I expect from an experienced foreclosure attorney?
From an experienced foreclosure attorney, you can expect:
An understanding of the available defenses available and experience in handling real estate litigation. Many attorneys treat foreclosure cases as if they are not litigation. This is improper. A foreclosure case is litigation and any attorney handling these types of cases should have extensive experience in handling real estate litigation.
A detailed examination of the terms and conditions in your purchase agreement, mortgage, and other documents from your lender.
An understanding of your side of the story: your financial situation, your objectives and your current and future interests in the property.
A detailed analysis of your failure to make the payments. This can include if you recently lost your job, substantial loss of income or serious illness or injury..
A list of viable options to foreclosure that might be in your best interests.
An experience negotiator that is on your side. There is a possibility that an alternative to foreclosure can be found and worked out. There are possible defenses and counterclaims that can be filed on your behalf as well.
What's the biggest mistake made in the foreclosure process?
Many clients come to our office days before their property is to be sold. This not only makes our job as your attorney more difficult, but it limits the defenses available to you. If the Court has already entered a default judgment against the borrower, we must show both a meritorious defense and excusable neglect to have the default set aside. Although this is possible in many instances, it is always better to consult an attorney as soon as possible to discuss your options. The longer you wait to get an experienced foreclosure attorney on your side, the fewer opportunities your attorney has to help you.