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Tax Deed Litigation in Florida
Tax deed litigation is a specialized area of law dealing with issues that arise when there is a challenge to a tax deed sale. These challenges can arise in a variety of ways. For example, a homeowner might challenge a tax deed sale because he or she did not receive notice of the sale. However, simply because a homeowner does not receive notice of the sale in and of itself, is not a sufficient reason to void the sale.
Notice of a tax deed sale must be reasonably calculated under all of the circumstances to give notice to the property owner. For example, if the county knows that the property owner does not reside on the property, then it is insufficient notice merely to mail a notice to that address and post the property with a notice of the sale. The county must take other measures to attempt to locate and notify the property owner. Similarly, and most importantly, if the property owner notifies the county of a change in address, but the county fails to notify the property owner of the sale at that changed address, and the property owner does not receive notice of the sale, then the sale may be set aside.
It is not just the owner of the property that can challenge a tax deed sale. If the property sold is submerged land or is a common element of a subdivision, then homeowners owning property contiguous to the property sold, also have standing to challenge the sale.
Tax deed litigation primarily focuses on constitutional due process arguments. Both the United States Supreme Court and the Florida Supreme Court have heard cases involving federal and state constitutional arguments addressing the validity of tax deeds. As tax deeds become more popular, this is an area of law that continues to develop and change.
Purchasers of property at tax deed sales need to be aware of the growing grounds to challenge tax deed sales. These grounds increase the risk to investors purchasing property at tax deed sales. It is prudent for investors to work with attorneys prior to purchasing tax deed properties to review the county records to help minimize the risks by taking the appropriate precautions.
If you are an individual who has lost your property to a tax deed sale, it is advisable to consult with an attorney experienced in tax deed litigation to determine whether or not you have a basis to file a suit to void the sale. This inquiry will be fact intensive and fact specific, so be prepared to discuss in detail the circumstances leading up to the tax deed sale.
Tax deed litigation is a growing and increasingly complex field. If you have an issue regarding a tax deed or are contemplating becoming an investor and purchasing tax deeds, consult with an attorney so that you can better understand this developing area of law.
How does the foreclosure process work?
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 accelerate the loan and 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.
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.